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The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities

  • Stephen L. Pepper

Abstract

This essay presents a moral justification for the current generally accepted amoral ethical role of the lawyer. The justification is premised primarily upon the values of individual autonomy, equality, and diversity. Based upon these values, the author argues that the amoral role is the correct moral stance for the lawyer as a professional, is a “good” role. The essay then responds to two of the most frequent criticisms of that moral stance: the first based upon economic inequality and the fact that lawyers'services must be purchased; the second based upon the absence of the “adversary system” context for most lawyer work. The author then elaborates a serious problem created by the conjunction of the amoral role and the dominant legal philosophy of American lawyers, “legal realism.” If the limit on a lawyer's conduct under the traditional amoral role is the law, then the realist emphasis on the indeterminacy and manipulability of “law” leave the lawyer in a difficult moral position. Finally, a series of possibilities are presented to deal with this problem, the most promising of which is the “moral dialogue” between lawyer and client as an adjunct to the amoral role.

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1 Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1 (1975).

2 In 1977 the ABA formed the Commission on Evaluation of Professional Standards, charged with “a comprehensive rethinking of the ethical premises and problems of the profession of law” (Proposed Final Draft, Model Rules of Professional Conduct, Chairman's Introduction, 1981). The efforts of this group, known as the Kutak Commission, resulted in the ABA's adoption of a new code of ethics, the Model Rules of Professional Conduct, and in the Association of Trial Lawyers of America's proposal of an alternative code, the American Lawyer's Code of Conduct. This process involved numerous conferences and meetings, voluminous public comment and published commentary, and much revision. In relation to an underlying ethic, the general moral role of the lawyer, there is little difference between the prior ABA Code of Professional Responsibility and the new Model Rules. Hodes, The Code of Professional Responsibility, The Kutak Rules, and the Trial Lawyer's Code: Surprisingly, Three Peas in a Pod, 35 U. Miami L. Rev. 739, 746–750 (1981). References in this paper to the Code will not indicate the comparable portion of the Rules.

3 E.g., G. Bellow & B. Moulton, The Lawyering Process-Ethics and Professional Responsibility (1981); M. Freedman, Lawyers' Ethics in an Adversary System (1975); G. Hazard, Ethics in the Practice of Law (1978); Schneyer, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 Wis. L. Rev. 1529; Dauer & Leff, Correspondence, The Lawyer as Friend, 86 Yale L.J. 573 (1977); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976). See also sources cited infra note 7.

4 Wasserstrom, supra note 1, at 5.

5 Prominent descriptions and justifications are found in Curtis, The Ethics of Advocacy, 4 Stan. L. Rev. 3 (1951); Fried, supra note 3; and Freedman, Personal Responsibility in a Professional System, 27 Catholic U.L. Rev. 191 (1978). In some respects, the justification provided here is an elaboration and modification of those presented by Freedman and Fried.

6 The question, phrased slightly differently, is the first line of Charles Fried's article, supra note 3, at 1060.

7 See, e.g., Luban, The Adversary System Excuse, in D. Luban, ed., The Good Lawyer 83 (1984) (moral philosophy); M. Frankel, Partisan Justice (1980); T. Shaffer, On Being a Christian and a Lawyer (1981) (religion); Abel, Why Does the ABA Promulgate Ethical Rules? 59 Tex. L. Rev. 639 (1981) (socioeconomic analysis); D'Amato & Eberle, Three Models of Legal Ethics, 27 St. Louis U.L.J. 761 (1983) (moral philosophy); Rhode, Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 Tex. L. Rev. 689 (1981) (socioeconomic analysis); Schwartz, The Zeal of the Civil Advocate, 1983 A.B.F. Res. J. 543 (legal analysis); Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 30 (jurisprudence); Wasserstrom, supra note 1 (moral philosophy).

8 See, e.g., Freedman, supra note 3; Fuller & Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A.J. 1159 (1958); Curtis, supra note 5.

9 Bledstein, B., The Culture of Professionalism 87 (1976); M. S. Larson, The Rise of Professionalism 56–63 (1977); W. E. Moore, The Professions: Roles and Rules 13–15 (1970).

10 These characteristics are derived from a similar definition provided by Wasserstrom, supra note 1, at 2 n.1. See also Bledstein, supra note 9, at 87; Larson, supra note 9, at x; Moore, supra note 9, at 4–22.

11 Morgan, The Evolving Concept of Professional Responsibility, 90 Harv. L. Rev. 702, 705 (1977).

12 Id.

13 Fuller, L., The Principles of Social Order 230–37 (1981); R. Summers, Lon L. Fuller 84–86 (1984).

14 H. L. A. Hart, The Concept of Law 27–28 (1961).

15 Law, The Messages of a Legal Education, in S. Gillers, ed., Looking at Law School 92, 104–5 (1984); Alschuler, The Search for Truth Continued, The Privilege Retained: A Response to Judge Frankel, 54 U. Colo. L. Rev. 67, 72–75 (1982); Freedman, supra note 5, at 204 (1978); Fried, supra note 3, at 1073; Wexler, Practicing Law for Poor People, 79 Yale L.J. 1049 (1970).

16 Access may be indirect. Thus a lawyer may serve as advisor to the union or the employers' trade organization, which in turn transmits wage and hour legal guidelines to member employees or employers.

17 Freedman, supra note 5, at 195; Wasserstrom, supra note 1, at 10–11.

18 Wasserstrom, supra note 1, at 7.

19 Freedman, supra note 5, at 194–95.

20 This is an echo of the underlying professional ethic presented at the beginning of part I. It also leaves one wondering whether there is any place for the lawyer's moral autonomy. The most commonly expressed focus for the lawyer's exercise of moral autonomy is in his or her choice of clients. This and more significant elements of the lawyer's moral autonomy are presented briefly below at sees. IV.D & E and part V.

21 Auerbach, J., Unequal Justice (1976); Abel, supra note 7, at 685–86 and sources cited at nn.250 & 255; A. Goldman, The Moral Foundations of Professional Ethics 124 (1980).

22 This may be explained by the relatively intimate interpersonal nature of the professional relationship and by the way a lawyer's integrity appears to be for sale. See the sixth element of Wasser-strom's definition of the professional and his discussion of the lawyer's hypocrisy, supra note 1, at n. 1 & p. 14.

23 For an interesting approach to the “economic inequality” issue and its nexus to law and legal services, and for an excellent overview which recognizes the distinction in the text, see Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal Change, 9 Law & Soc'y Rev. 95 (1974–75).

24 This seems to be an implicit notion on the part of many. See, e.g., Auerbach, supra note 21; Luban, supra note 7; Wasserstrom, supra note 1.

25 Rabinowitz, The Radical Tradition in the Law, in D. Kairys, ed., The Politics of Law 310 (1982); A. Ginger, The Relevant Lawyers (1972); Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 Stan. L. Rev. 509 (1984); Gabel & Harris, Building Power and Breaking Images: Critical Legal Theory and the Practice of Law, 3 N.Y.U. Rev. L. & Soc. Change 369 (1982–83).

26 See, e.g., Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937–1941, 62 Minn. L. Rev. 265 (1978); Sparer, supra note 25.

27 See, e.g., Bachmann, Lawyers, Law, and Social Change, 13 N.Y.U. Rev. L. & Soc. Change 1, 23–26 (1984–85). See generally Choper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights, 83 Mich. L. Rev. 1 (1984).

28 Auerbach, supra note 21, at 263–68 (1976).

29 See note 25 supra.

30 Auerbach, supra note 21, at 14–39 (1976); Nelson, Ideology, Practice, and Professional Autonomy: Social Values and Client Relationships in the Large Law Firm, 37 Stan. L. Rev. 503 (1985).

31 Galanter, supra note 23, provides observations which appear equivocal on both the “amoral role” and the effect of expansion and equalization of access to lawyers. Compare id. at 114–19 with id. at 138–44.

32 The literature is vast. See, e.g., Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 Stan. L. Rev. 1 (1981); Morgan, supra note 11; Ehrlich & Schwartz, Reducing the Costs of Legal Services: Possible Approaches by the Federal Government, reprinted in A. Kaufman, Problems in Professional Responsibility at 582 (1st ed. 1976).

33 For a discussion of the latter sense of “deprofessionalization,” see Simon, supra note 7.

34 E.g., M. Freedman, Lawyers' Ethics in an Adversary System (1975); D. Mellinkoff, The Conscience of a Lawyer (1973).

35 Luban's article, supra note 7, is entitled “The Adversary System Excuse.” See also, e.g., Schwartz, supra note 7; Schwartz, The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669 (1978); Wasserstrom, supra note 1.

36 These arguments usually focus on the value of the adversary system in elucidating truth, Fuller & Randall, supra note 8, at 1160–61, and on the importance of protecting the dignity of the individual enmeshed in the judicial system, Freedman, supra note 3.

37 ABA Model Code of Professional Responsibility, DR 7–102 (A)(7).

38 Weckstein, The Civil Advocate and the Multifaceted Functions of Dispute Settlement-Some Domestic and Cross-cultural Perspectives, 1983 A.B.F. Res. J. 577 (similarities between civil and criminal litigation and the consequent appropriate role of the lawyer).

39 E.g., Luban, supra note 5, at 92, 117; Wasserstrom, supra note 1, at 12.

40 Of course, part of the added power of having a lawyer on your side is the recognition that a lawyer brings with her the possibility-or the threat-of moving into litigation (and thereby gaining the power of the state). “Access to a lawyer” and the “potential for litigation” are, in this respect, two sides of one coin.

41 ABA Code of Professional Responsibility, Ethical Considerations 7–1 and 7–19. This approach pervades the Code. See, e.g., Disciplinary Rules 4–101 (C)(2) and (3), 7–101 (A)(l), 7–102.

42 Although perhaps misleading, the choice of the phrase “legal realism” derives from a perception that it will have the highest recognition level as descriptive of “the dominant view of law inculcated in the law schools.”“We are all realists now” is a comment often heard from contemporary law professors. See, e.g., Kaufman, A Commentary on Pepper's “The Lawyer's Amoral Ethical Role,” 1986 A.B.F. Res. J. at 654. Unfortunately, “legal realism” connotes rather different things to different persons. Robert Summers's usage, “pragmatic instrumentalism,” is probably a better descriptive term. R. Summers, Instrumentalism and American Legal Theory (1982). My use of “legal realism” is intended to be more inclusive than Summers's use of “pragmatic instrumentalism,” as the following paragraph elaborates.

43 See Cramton, , The Ordinary Religion of the Law School Classroom, 29 J. Legal Educ. 247 (1978); Woodard, The Limits of Legal Realism: An Historical Perspective, 54 Va. L. Rev. 689 (1968).

44 See Simon, , supra note 7, at 61–91; Ursin, Judicial Creativity and Tort Law, 49 Geo. Wash. L. Rev. 229, 234–37 (1981).

45 But cf. R. Summers, supra note 42 (differences between “process jurisprudence” and “legal realism”). The phenomenon I am describing is the (perhaps uneasy) synthesis of these three approaches that has come to characterize American legal education and, to at least a significant extent, the practice of American law.

46 The best discussion is to be found in Simon, supra note 7.

47 Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459 (1897).

48 Simon, supra note 7, at 48.

49 Calabresi, Torts-The Law of the Mixed Society, in B. Schwartz, ed., American Law: The Third Century 103 (1976).

50 Viewing law in terms of “cost” entails perceiving enforcement as a part of the law. This is clear with Holmes's “bad man” view, and in his view that a contractual obligation entails only an obligation to pay damages for breach. It becomes more problematic when the lawyer is dealing with a potential criminal violation, rather than with contract or tort. See Luban, The Lysistratian Prerogative: A Response to Stephen Pepper, 1986 A.B.F. Res. J. 637, 647. Pepper, A Rejoinder to Professor Kaufman and Luban, 1986 A.B.F. Res J. 657, 669–73. Nonetheless, advice about enforcement has been considered part of the advice about “law” in general, and thus has been an accepted lawyer function. See, e.g., Panel Discussion, 35 U. Miami L. Rev. 639, 659 (1981) (comment of Prof. Geoffrey Hazard, Reporter, ABA Model Rules of Professional Conduct).

51 And it is quite unlikely to surface in reference to violent crime. See Simon, supra note 7, at 48.

52 Kaufman, Doubts About Justice, in H. E. Kiefer & M. R. Munitz, eds., Ethics and Social Justice (1970).

53 Moskowitz, The Making of the Moral Child: Legal Implications of Values Education, 6 Pep-perdine L. Rev 105, 107–14 (1978).

54 See Levinson, , The Specious Morality of the Law, Harper's Mag., May 1977; Lessard, Notes and Comment, 53 New Yorker, May 23, 1977, at 27–28.

55 See, e.g., T. Morgan & R. Rotunda, Professional Responsibility-Problems and Materials 1 (3d ed. 1984); Wasserstrom, supra note 1.

56 As Prof. Alschuler has aptly phrased this point, “Once lawyers became as loyal to opposing parties and to the public as they were to their clients, however, their clients would no longer have lawyers. The clients would only have judges-a whole series of them.” Alschuler, supra note 15, at 72.

57 S. Gillers & N. Dorsen, Regulation of Lawyers: Problems of Law and Ethics 551–61 (1985), and sources cited therein.

58 Perhaps the best evocation of this is Freedman, supra note 3, ch. 3.

59 Morgan & Rotunda, supra note 55, at 179. The situation and the issue are not unreal. See, e.g., Doe v. Duling, 782 F.2d 1202 (4th Cir. 1986) (unenforced fornication and cohabitation statutes).

60 For a general discussion of the ethical approach discussed in this section, see Shaffer, supra note 7. This approach is also reflected in the ABA Model Code of Professional Responsibility. See Ethical Considerations 7–1 through 7–8.

61 ABA Code of Professional Responsibility EC 7–7, 7–8.

62 Simon, supra note 7, at 52–60; Freedman, supra note 5, at 200–201.

63 Gabel & Harris, supra note 25; Lehman, The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078 (1979); Fried, supra note 3, at 1088; Wexler, supra note 15, at 1062–66; but cf. Panel Discussion, 35 U. Miami L. Rev. 639, 643 (1981) (comment by panelist Chesterfield Smith, a former president of the American Bar Association, that clients pay him to tell them what to do, pay him to make choices, not to educate them so they can make the choices). See also Curtis, The Ethics of Advocacy, 4 Stan. L. Rev. 3, 6 (1951): “The upshot is that a man whose business it is to act for others finds himself, in his dealings on his client's behalf with outsiders, acting on a lower standard than he would if he were acting for himself, and lower, too, than any standard his client himself would be willing to act on, lower, in fact, than anyone on his own.” Reprinted in C. Curtis, It's Your Law, ch. 1 (1954).

64 Simon, supra note 7, at 55–60; Wexler, supra note 15, at 1052. Simon's article, quite possibly the best recently written on the professional ethics of lawyers, unfortunately tends to defeat itself with overstatement. For example, at n.69: “There are severe limitations on the extent to which a person, particularly a stranger, can understand with any depth the ends of another without actually sharing those ends.” There is some truth to this point, but to use it as a basis for arguing for the deprofessionalization of lawyers is extreme. Common experience indicates that humans are better at communication than this suggests, and a properly trained lawyer is usually able to draw more from the client than Simon suggests is possible. Experience with a legal services office, a public defender, or a similar practice might move one toward Simon's position, but generalization from that experience to all of the practice of law is not warranted. One form of this tendency toward overstatement which weakens Simon's article is its perception of “contradiction” generally in lawyers' ethics where there may be only complexity, a flaw characteristic of much critical legal studies work. See Dworkin, R., Law's Empire 271–75, 441–43 (1986); Sparer, Fundamental Human Rights, Legal Entitlements, and the Social Struggle: A Friendly Critique of the Critical Legal Studies Movement, 36 Stan. L. Rev. 509, 516–19, 524 (1984).

65 Luban, supra note 7.

66 People v. Beige, 372 N.Y.S.2d 798 (N.Y. Cty. Ct. 1975); Freedman, supra note 3, at 1; Morgan & Rotunda, supra note 40, at 192–93.

67 Alschuler, The Preservation of a Client's Confidences: One Value Among Many or a Categorial Imperative? 52 U. Colo. L. Rev. 349, 354–55 (1981). D'Amato & Eberle, supra note 7, at 784–85, draw the same line between not revealing the dead body and revealing the live victim, on the basis of a deontological model of legal ethics. They appear to assume that the conscientious objection alternative can be incorporated into lawyers' professional ethics, thereby avoiding the problem of violating the obligation to the client. It is difficult to understand how a legally binding ethics code (the current Code of Professional Responsibility carries legal sanctions) could impose an obligation to violate the law, a possibility implied by D'Amato and Eberle, id. at 795 (fugitive slave example). Perhaps they are thinking of a code of that which is not legally binding, id. at 793. Only the proposed American Lawyer's Code of Conduct, drafted by Professor Freedman, contains a provision allowing revelation of the live victim in the circumstances of the hypothetical in the text. That provision is included only as an alternative-it was not approved by the Commission. American Lawyer's Code of Conduct, Rule 1.6.

68 Whether or not the choice is an educated one in most cases is unclear. While, as Wasserstrom observes, the amoral role may be “comfortable” for practicing lawyers, supra note 1, at 7, many law students I have encountered in Legal Profession courses are quite uncomfortable with the prospect of living such a role.

69 Law, supra note 15, at 103–4; Freedman, supra note 15, at 198–99, 204–5.

70 See Pepper, , A Rejoinder to Professors Kaufman and Luban, 1986 A.B.F. Res. J. 657, 659–60.

This essay was the winning submission in the Association of American Law Schools 1985 “Call for Scholarly Papers” competition, and was presented at the 1986 AALS annual meeting, where it was commented upon by Professors Andrew Kaufman and David Luban. Those comments follow in this issue, along with a rejoinder by Professor Pepper.

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