An editorial in today's electronic version of the National Jurist argues that it's time to teach morality in law schools. Okay, we'll get right on that. Because, you know, the legal profession, the legal academy, and those of us who specialize in teaching legal ethics haven't given a moment's thought to the problem of lawyers behaving badly. It's only now, with the recent financial meltdown, that we're realizing that lawyers do not "always act morally or responsibly," and that "no system can work without a sense of ethics or responsibility at its core." [/sarcasm]
The editorial claims that "it appears as if too many law schools are currently not preparing today’s lawyers for the profit-driven legal marketplace of today, rife with its moral quandaries." Setting aside the mandatory instruction in legal ethics -- which at most schools is (appropriately) a course on the law governing lawyers -- what are we supposed to do differently?
What we're missing is that "there are a common set of values that all reasonable men can agree upon -- such as honesty, fairness and compassion." (Incidentally, my wife hit the roof when she read this, noting that reasonable women apparently don't have a seat at the table.) "When clients want to act legally, but not morally, their attorneys should be prepared to advise them beyond the law and to take stands as befits their own moral character."
Really? Is that a good idea? In every recent legal ethics scandal, the lawyers and clients had what they took to be good moral reasons for their actions. Take the Enron case, for example. Jeff Skilling and Andy Fastow believed the regulatory regime applicable to their company was antiquated and unreasonably burdened innovation in "new economy" industries such as energy trading. The accounting treatment prescribed by law did not reflect the economic reality of Enron's business, so it could appropriately be disregarded. Similarly, John Yoo believed that existing domestic and international law was rendered obsolete on Sept. 11, 2001, and therefore it was his job as a government lawyer to figure out a way to get around the law.
Admittedly, the editorial is talking about legal-but-immoral conduct, which is the flip-side of the cases just described, of a claimed moral right to circumvent the law. In the end, however, both positions boil down to the same thing, which is a refusal to acknowledge that for good moral reasons the job of a lawyer is to represent clients within the law -- i.e. with reference to their legal entitlements, not the lawyer's moral beliefs. The editorial seems to lament the demise of the lawyer-statesman with sufficient power and gravitas to "tell clients that they are damn fools and should stop," in the words of Elihu Root. The trouble with this proposal is that it's hard to lay responsibility for the decline of the lawyer-statesman at the feet of legal educators. One reason there are no more Elihu Roots is that power has shifted dramatically from outside law firms to clients and in-house legal departments. Clients no longer look to outside counsel as trusted advisors on all aspects of their business, including moral, political, economic, and social implications of their actions. Lawyers are technicians, not wise men and women. Telling legal educators to inculcate values into law students ignores the Realpolitik of contemporary law practice, where a lawyer trying to give moral advice to a client would be marginalized.
What a lawyer can do, however, is provide legal advice, and insist that the client comply with it. The Enron and torture memos scandals share the feature of lawyers being all too willing to bend and distort the law in the service of their clients' ends. The remedy for that problem is not to urge lawyers to give moral advice -- which after all would likely line up with their clients' moral views -- but to ensure, not only through education but also through effective regulation, that lawyers not abuse the law.
What about the point that all reasonable men [sic] can agree on values like honesty, fairness, and compassion? Let's consider some examples, all staples of legal ethics education:
Honesty; You are a criminal defense lawyer and can impeach an eyewitness by establishing that she was not wearing her glasses, even though she accurately identified your client. Does honesty require you not to cross-examine the witness?
Fairness: You represent the defendant in a sophisticated products liability case. The plaintiff's lawyer is a non-specialist, recently out of law school, who made several mistakes that will cause the plaintiff to lose on summary judgment. Is it fair to take advantage of this mistake?
Compassion: Your client, a manufacturer, is getting clobbered by foreign competition. It wishes to relocate a plant overseas, which will result in job losses for hundreds of people in a Rust Belt town. The client asks you for advise on compliance with the WARN act. Do you tell your client that it is behaving badly?
The point of these hackneyed examples is that very often the function of the law is to provide a concrete resolution of competing views about what is required by values like honesty, fairness, and compassion. Not only are there different conceptions of a single value (e.g. procedural vs. substantive fairness), but one must establish the priority among multiple applicable values. People disagree in good faith about what is required by morality in many cases, so throwing the resolution of these dilemmas back onto moral judgment simply restates the problem: If the client has at least prima facie good moral reasons for wanting to do something, and a legal entitlement to do it, by what authority does the lawyer offer this moral advice? Lawyers have distinctive expertise, which relates to interpreting and applying the law. They are no better or worse at moral deliberation than clients. It seems unlikely to me that preaching to our students about the evils of greed is going to make them so good at moral reasoning that their clients, who presumably also are well motivated people, are going to defer to them in these cases.