Moral Freaks: Lawyers' Ethics in Academic Perspective

That's the title of a new article by Columbia's Bill Simon.  This is the abstract:

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality.  This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error.  I argue that academic efforts to shore up the professional inclination against rescue are not plausible.  I conclude by recommending an older jurisprudential tradition in which legal ethics is more convergent with ordinary morality.  

You can download the article here.

Comments

[Joe]

Wouldn't it be easier just to say, "Do the right thing?" That varies slightly for everyone, I'm well aware, but I think we all have a sense of it.

[Mo nroe Freedman]

In my experience, how individual lawyers define "the right thing," "ordinary morality," and "justice" can be vast, which renders fatuous any system of applied ethics that is defined in terms of those concepts.

[Brad Wendel]

"Do the right thing."

How does the relationship between citizens, lawyers, the state, and the law factor in to "the right thing"? Is there a prima facie obligation to obey the law? If so, doing the right thing for citizens would include following the law. Does that obligation carry over to lawyers, so that they must advise their clients to comply with the law (or, in a harder case, must not come up with some clever contrivance to get around the law)? Does it matter if the law seems to require or permit something that is morally wrongful? Morally wrongful by whose lights? The client's? The lawyer's? On the other hand, if there is no prima facie obligation to obey the law, and lawyers are required straightforwardly to do the right thing in ordinary moral terms, it's hard to account for the distinctiveness of the legal profession. What makes someone a "lawyer" is there is no special obligation derived from the value of legality? Moreover, the law is presumably there, and entitled to some respect, for reasons relating to our mutual obligations to one another as citizens. If I'm a rich guy and hire a lawyer to plan an elaborate tax-shelter scheme that minimizes my tax burden, aren't I disrespecting my fellow citizens who have an interest in the fair enforcement of the revenue system? How should we understand the lawyer's ethics in that situation -- as a violation of the instance of the general moral value of fairness, or as a distinctively political wrong in virtue of the scheme of rights and duties that we have come up with as a society?

In my view, this is why legal ethics isn't simply a matter of doing the right thing or, if it is, why it's worth spending some time unpacking the idea of right action in a professional role, where the profession is constituted by a scheme of political rights and obligations which themselves have been created for moral reasons.

[Monroe Freedman]

That's what I tried to say.

[Bill Simon]

I'm not sure what these comments have to do with my article, which emphatically does not conflate either professional or ordinary morality with "do the right thing".

[Monroe Freedman]

Okay, Bill, let's focus on what constitutes "ordinary morality" and/or "justice," on which you and I appear to have some fundamental disagreements.

[Bill Simon]

I think the best way to start is with examples, like the Mistake of Law hypothetical. My argument for disclosure is not based on subjective or idiosyncratic preference, or some unanalyzed notion of "the right thing". It's based on an analysis that draws on standard techniques and sources that lawyers use all the time. Most lawyers and judges think that their practice is ultimtely grounded in justice. So does the ABA, according to the model rules Preamble. That doesnt mean it's based on individual interpretations of a purely abstract term. We use legal authority to give it determinate content. Sometimes authority dictates answers more or less categorically; sometimes it requires more contextual and contested analysis. But the claim that an issue calls for contextual or contested analysis is not tantamount to a claim that it should turn on the individual lawyer's unanalyzed intuiton.

[Monroe Freedman]

Bill,
I don't read well online, so I haven't given your article an adequate reading yet. However, it appears to me that I disagree with all the people with whom you disagree, but that you haven't confronted my position.
Without getting into the extensive discussion that would entail, my view is the same as yours regarding the relationship of ordinary morality and legal ethics -- which makes my point about the radical differences in people's views of ordinary morality.
See, e.g., my comment in the post about assigning lawyers to cases with an eye to jury prejudice. My guess is that you would disagree with me on that, as well as on the mistake of law issue, but each of us is relying on his own view of ordinary morality.

[Monroe Freedman]

This is a follow-up on my comment about ordinary morality.

When a lawyer agrees to represent a client, the lawyer will have made a promise — expressly or impliedly given her word, upon which the client can be expected to rely – that she will use all lawful and ethical means that are reasonably available to advance the client’s lawful interests in all aspects of the representation. In my experience, and that of others with whom I have spoken, this is generally what happens (except for many clients of court-appointed lawyers, who do not assume an implied promise of that kind of representation). I don’t know of any lawyers who expressly disabuse clients of this reasonable expectation.

Promises, of course, are generally recognized as among the heaviest of moral obligations. For Immanuel Kant, for example, keeping promises is a necessary duty to achieve the categorical imperative. Theory of Ethics, in Kant Selections 268, 310 (Theodore Meyer Greene ed., 1929); see also John Locke, An Essay Concerning Human Understanding 27 (George Routledge and Sons Ltd. 1909) (1690) (“Justice, and keeping of contracts, is that which most men seem to agree in.”); Thomas Hobbes, Leviathan 202 (C.B. Macpherson ed., Penguin Books 1968) (1651) (“But when a Covenant is made, then to break it is Unjust: And the definition of Injustice, is no other than the not Performance of Covenant.”).

When I insist on client-centered representation, therefore, I am relying on ordinary (as well as personal) morality – my obligation to keep my word to my client.

As I noted earlier, the very fact that Bill and I disagree so radically on what constitutes ordinary morality demonstrates the uselessness of that notion as a standard for a working system of lawyers' ethics.

[Bill Simon]

I can only hope that people who care about these issues will get around to reading my article. For now, I'd reply to Monroe:
1. I agree entirely that, in accepting a client, a lawyer presumptively agrees to use "all lawful and ethical means" to advance the client's "lawful" ends. However, I think there are some interesting issues involved in how one goes about determining what means and ends are "lawful" and "ethical." See my article.
2. As Dworkin tirelessly points out, the fact that people disagree about a particular norm does NOT mean (a) that it's not law, or (b) that it cannot be the basis for coercive public intervention, or (c) that all positions on the matter are equally plausible or worthy of respect. If consensus were a pre-requisite for the exercise of public authority, we'd have anarchy.
3. I actually do agree with Monroe on the jury prejedice issue, which I think is closer to the Oppressive Testator scenario than the Mistake-of-Law one discussed in my article.

[Monroe Freedman]

Bill,

It doesn’t matter how tirelessly Ron Dworkin points out those three points. They don’t address the fact that if the standard is to be “ordinary morality” or “justice,” lawyers are going to behave in radically different ways in applying the standard. Nor does it affect my moral obligation, or my sense of justice, to honor my client’s reasonable understanding of my obligations.

And the fact that most practicing lawyers would probably agree with me is irrelevant. Indeed, the lawyers and judges who agree with you in the mistake-of-law case do so for what both of us would agree is the wrong reason. Those in the civility or professionalism movement agree that the lawyer should be told about the mistake, but the reason has nothing to do with justice to the mistaken lawyer’s client. It’s to protect a “brother lawyer” from a malpractice action. See ULE 123-127. Ironically (and outrageously), it’s only when the party on the other side is represented by a lawyer that professionalism requires divulgence of the mistake. For example, the Final Report of the Committee on Civility of the Seventh Circuit Federal Judicial Council, Proposed Standards, para. 18 (143 FRD 441 (1992) requires notification to “opposing counsel, when we know his or her identity” of a costly mistake. – No opposing counsel, no obligation to do justice.

[Bill Simon]

1. If inconsistent application is a problem, then we should pass a rule mandating disclosure. Until we do, inconsistent justice is better than consistent injustice.
2. The client has no "reasonable expectation" that she will profit solely because of the other side's fundamental mistake.
3. Agree completely about guild loyalty. Obviously, I would urge the same result with a pro se opposing party.