I just returned home from the just finished and entirely fantastic Hofstra Law conference organized by co-blogger Roy Simon, "Power, Politics and Public Service: The Legal Ethics of Lawyers in Government". On the last day of the conference Robert Mundheim presented a paper "A Treasury of General Counsel Experience: The (First) Chrysler Bail-Out, the (First) Iranian Hostage Negotiations, and Some 'Salomonic' Wisdom". In his talk he discussed the difficulty for organizational lawyers in determining who is the client, and whose interests can legitimately be pursued in the provision of legal advice.
This paper caused me to reflect on the nature of loyalty as a lawyerly obligation. Because (thought I) loyalty in the context of legal ethics (and ethics generally) is asserted as a moral principle, as something that one owes to one's client as a matter of obligation (the lawyer's) and right (the client's). Yet loyalty is also something that a person feels, it is an emotional response to people, places and things with whom one has a relationship. I feel loyalty to a sports team, for example, although it is difficult to see any modern sports franchise as being the proper subject of obligation or right (especially the dreadful teams I've always supported - go Canucks!).
And I wonder if part of the reason lawyers run into ethical problems is when either their moral obligation of loyalty and their emotional experience of loyalty end up in tension, or when their moral obligation of loyalty and their emotional experience of loyalty end up too closely intertwined. So that an organizational lawyer runs into problems when he feels loyalty to one set of people or interests, but his actual moral obligation is to another set of people or interests, but a family law lawyer may run into problems when his emotional loyalty heightens his moral obligation of loyalty to the point where it blinds him to counter-vailing moral obligations such as respect for legality.
Which in turn makes me wonder whether some of the problems for organizational lawyers could be assisted by helping to enhance the emotional connection between those lawyers and the interests they are properly supposed to represent. I am thinking of, e.g., ensuring that in-house counsel have contact with the board of directors from time to time, even socially. I am less sure how one could disrupt the emotional loyalty where it tends to create excessive zeal, except through the conflict rule (here at least) which directs the lawyer not to act if excessive personal commitment impairs her judgment.
Anyone else have any thoughts?