Is moral deference a problem?

The Northwestern Law Review Colloquy has published an essay by Michael Hatfield titled "Professionalizing Moral Deference."  Hatfield uses the torture memos as evidence of a broader problem: our tendency to professionalize lawyers to view moral deference as a moral good. Here's an excerpt:

From the beginning of law school, a lawyer is idealized as a zealous advocate for her client’s objective.  This biased zealousness is justified by an appeal to the adversarial American legal system.  Each side has a lawyer, and each lawyer is devoted to one side.  The professional role is to further the client’s objective, even if, personally, the lawyer opposes it.  The young lawyer learns to defer to the client’s moral conclusions about the objective.  But the young lawyer also learns to defer to the legal system’s conclusions that this is what lawyers should do.  We are told to suspend our personal moral instincts and to have faith that the legal system accomplishes a greater moral good by our accepting a truncated personal moral role than it could accomplish if we accepted full personal moral responsibility for what we help our clients do.  We are professionalized into believing that we are at no personal moral risk so long as we do a professional job (for which we will be well paid).  We are told to accept the moral good of moral deference—both to our clients and to the system.  We are professionalized to believe that moral deference is simply what lawyers do, as if it were a self-evident, natural principle that pardoned our moral misgivings. 

I've written a response essay titled "Professionalizing Moral Engagement."  Here's the opening:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.”  In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition.  There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis.  Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition.  But this reaction would miss the partial truth underlying Hatfield’s analysis.  The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes.  Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it.  The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

I'd welcome feedback.  I believe that Brad Wendel's response to Hatfield will be published shortly.

Comments

[Monroe Freedman]

It is unscholarly and disingenuous to use a passing, derogatory reference to the "adversary system" as if it automatically and necessarily establishes the immorality of lawyers. In Chapters 2 and 3 of Understanding Lawyers' Ethics (2004), Abbe Smith and I present an extended justification for the adversary system, the moral purposes it serves, and the ways in which lawyers can and should and do act morally within it. I have never seen a rebuttal directed at that argument. Here are some brief excerpts:

In its simplest terms, an adversary system resolves disputes by presenting conflicting views of fact and law to an impartial and relatively passive arbiter, who decides which side wins. In the United States, however, the phrase “adversary system'' is synonymous with the American system for the administration of justice -- a system that was constitutionalized by the framers and that has been elaborated by the Supreme Court for over two centuries. Thus, the adversary system represents far more than a simple model for resolving disputes. Rather, it consists of a core of basic rights that recognize and protect the dignity of the individual in a free society.

The rights that comprise the adversary system include personal autonomy, the effective assistance of counsel, equal protection of the laws, trial by jury, the rights to call and to confront witnesses, the right against involuntary self-incrimination, and the right to require the government to prove guilt beyond a reasonable doubt. These and other rights are also included in the broad and fundamental concept that no person may be deprived of life, liberty, or property without due process of law -- a concept which itself has been substantially equated with the adversary system.1 An essential function of the adversary system, therefore, is to maintain a free society in which individual human rights are central.2

The adversary system has been described as a “cherished…ideal of constitutional proportions,”3 and “a pillar of our constitutional system.”4 Accordingly, the Supreme Court has recognized that the right to counsel is “the most precious” of our rights, because it affects one's ability to assert any other right.5 It follows, therefore, that the professional responsibilities of the lawyer, serving as counsel within our constitutionalized adversary system, must be informed by the same civil libertarian values that are expressed in the Constitution.

Except under certain narrow circumstances, a lawyer in the United States has the freedom to choose clients on any standard she deems appropriate.33 As Charles Fried points out, the choice of client is an aspect of the lawyer's free will, to be exercised within the realm of the lawyer's moral autonomy. Implicit in the exercise of that autonomy, however, is the lawyer's moral responsibility for the choices she makes. The question is not whether everyone is entitled to a lawyer; rather, the question is whether a particular person is entitled to me as his lawyer. Contrary to Fried's view, therefore, that means that the lawyer's choice of client can properly be subjected to the moral scrutiny and criticism of others -- particularly to the criticism of those who would seek on moral grounds to persuade the lawyer to use her training and skills in ways that the critics consider to be more consistent with personal morality or social policy.34

Once the lawyer has chosen to accept responsibility to represent a client, however, the zealousness of that representation cannot be tempered by the lawyer's moral judgments of the client or of the client's cause.35 This point is of importance in itself, and is also worth stressing because it is one of the considerations that a lawyer should take into account in making the initial decision whether to take on a particular client.

In day-to-day law practice, the most common instances of amoral or immoral conduct by lawyers are those occasions in which lawyers preempt their clients' moral judgments. This occurs in two ways. Most often lawyers assume that the client wants her to maximize his material or tactical position in every way legally permissible, regardless of non-legal considerations. That is, lawyers tend to assume the worst about their clients' desires and act accordingly. Less frequently, a lawyer will decide that a particular course of conduct is morally preferable, even though not required legally, and will follow that course without consultation. In either event, the lawyer fails in her responsibility to maximize the client's autonomy by providing the client with the fullest advice and counsel, legal and moral, so that the client can make the most informed choice possible.38

In addition to moral consultation with the client, there are limited circumstances in which a lawyer may be able to avoid involvement in conduct that is morally offensive to the lawyer. The lawyer may limit the scope of the relationship as long as the limitation is reasonable and the client knowingly consents.35a Also, she may withdraw from the representation if the client consents or if withdrawal can be accomplished without significant harm to the client's interests.35b Moreover, if the lawyer's sense of moral repugnance is so strong as to impair her ability to serve the client professionally, she would be required to withdraw on grounds of conflict of interest.36

In addition, we would allow the lawyer to withdraw in a matter, other than criminal litigation, if the lawyer discovers that the client has knowingly induced the lawyer to take the case or to take action on the client's behalf on the basis of material misrepresentations about the facts of the case, and if withdrawal can be accomplished without direct divulgence of the client's confidences.36a

The adversary system has its flaws. Valid criticisms can be made and reforms proposed. However, the case for substantially restructuring the adversary system has not been made.

The adversary system is an expression of some of our most precious rights. It serves as a limitation on bureaucratic control and a safeguard of personal autonomy and mutual respect. The adversary system gives both form and substance to the humanitarian ideal of the dignity of the individual. Any system of professional ethics should encourage and enable lawyers to pursue that ideal.

[David McGowan]

Rob--

Here are a couple of reactions, which boil down to skepticism that autonomy is at stake here:

1. Assuming for the moment you need a consequentialist justification for this stance (because if you have moral agreement between lawyer and client engagement is redundant and if you don't you have to find a metric acceptable to both), the payoff is supposed to be increased client autonomy? Is this a factual or conceptual point? I think it can only be factual, which means there is no case for it apart from clients who haven't thought things through. But why do you need the big guns of capital-M morality to justify that? If a client is missing something then ordinary competence suggests you point it out.

2. Unless, of course, there is no objective "thing" to be missed. Suppose there is no such thing as meaningfully objective morality. That makes us more autonomous in the sense that it frees us from any obligation to track the dictates of such a notion, but it also undercuts the idea that moral suasion produces autonomy, at least as defined as free choice--the choices your model produces are not free in any important sense, just differently influenced.

3. You can rehabilitate the idea, I think, if you cast it as allowing moral suasion on terms the lawyer has reason to believe the client accepts--that is, lawyers may engage on the client's ethical terms as the client sees them. That is similar to the Thaler/Sunstein approach. But then where does that leave you on the memos you cite?

4. Academics like discursive solutions to problems--if we just talk more things might be better. But that seems plainly wrong when we look at the world around us. Apart from cases in which you point out errors in terms the client would consider an error, which is really just doing good instrumental advising (see above), the payoff from this engagement seems to run mostly to the lawyer, not the client.

5. What do you have against orphanages getting mortgages? Nor foreclosure at T1 means no loan, or a much more costly loan, at T2.

DM

[Rob Vischer]

Thanks for the comments. Monroe, I take it that your comment is geared more toward Michael Hatfield's point, because I don't disagree with anything you wrote. David, three reactions:

1) on the orphange point, you might be confusing my essay with Michael's, as I criticize him for suggesting that a lawyer who morally objects to foreclosing on a mortgage should not help her client do so. My point is that a lawyer's decision to help a client do something that a lawyer would not do herself is not necessarily evidence of a lack of moral engagement and/or reflection -- it could follow from intense moral engagement and/or reflection.

2) My call for moral engagement is not premised on the existence or accessibility of capital "M" morality. It is premised on the belief that clients will not always see the moral implications of a potential course of conduct. I don't think it's just applicable to clients who "haven't thought things through," for sometimes a client, even a diligent and reflective client, won't be able to translate, or won't be sensitized to the need to translate, decisions in a legal matter into moral terms. (E.g., the Catholic Church's lawyers' approach to discovery requests in the priest sex abuse cases.) Though a good lawyer should have such conversations, I'm not sure I'd go so far as to consider them to be straightforward competence requirements.

3) I would distinguish moral engagement from moral suasion, though the former could encompass the latter. Lawyers engaging in moral suasion need to tread very carefully, and to the extent that the embrace of moral suasion begins to erode the lawyer's deference to the client's own moral compass, it's problematic, in my view.

[Monroe Freedman]

Yes, Rob, I was commenting on Hatfield.

[Brad Wendel]

Rob is correct that my response is forthcoming -- it's in the editing stages with the NWU Colloquy right now. My principal response is to Hatfield's argument that the profession's stance toward the immorality of client activities is passive instead of active, i.e. that it commends a morality of deference to authority over the insistence on the moral responsibility for complicity in wrongdoing. Hatfield's claim that serving clients involves "an intentional suppression of personal moral sensitivity in favor of the moral conclusions of someone else" is a familiar one. It is essentially the problem of authority – how the law can justify its claim to create moral obligations in view of the responsibility of all moral agents to decide for themselves what they ought to do.

The trouble is that Hatfield's proposed cure doesn't address the diagnosis. He says: "... lawyers who justified torture as legal beforehand concluded that it is morally necessary to do so. All I can fathom is that their sincere conviction of the moral appropriateness of torture has driven their legal analysis to the same conclusion." The last thing lawyers like John Yoo and Jay Bybee should be encouraged to do is to act on their sincere moral convictions in violation of the requirements of law. That this is the problem with the torture memos is confirmed by reading John Yoo's book, in which he goes on for pages and pages making direct appeals to policy (or moral) considerations. The problem with Hatfield's argument is that he runs together ordinary morality and the political role-based obligations of lawyers. He says: "It should not be controversial to claim that the rule of law is better protected by those responsive to conscience than it is by those who intentionally disregard conscience for pay and promotions." Actually, I think the rule of law sometimes requires political officials, and quasi-officials like lawyers (I suspect that characterization will infuriate Monroe and others, but I defend it elsewhere) to act on reasons other than those given by their consciences. This is why it comes down to the problem of authority, and why legal ethics needs to grapple with the nature of legal obligation.