Feb. 4, 2019
Legal ethics, personal conscience and higher notions of morality
What are the ethical responsibilities of overzealous lawyers who seek to “win” at all costs (“Rambo tactics”), including the tendency to ignore other considerations such as personal conscience and morality, excused under the guise they are required to “give their all” for clients in pursuing their legal rights?
What are the ethical responsibilities of overzealous lawyers who seek to "win" at all costs ("Rambo tactics"), including the tendency to ignore other considerations such as personal conscience and morality, excused under the guise they are required to "give their all" for clients in pursuing their legal rights?
In a recent opinion in the Los Angeles Times, Jonah Goldberg criticized "falling back on legalism." He lamented "how, in the West, law had replaced higher notions of morality," recalling the absurdity of Alexander Solzhenitsyn's "legendary 1978 commencement address at Harvard," that, "Any conflict is solved according to the letter of the law and this is considered to be the supreme solution" where if "one is right from a legal point of view, nothing more is required."
How does this mesh with the ethics mission statements of the State Bar of California -- to preserve and improve our justice system in order to assure a free and just society under law -- and of the American Bar Association -- to be the national representative of the legal profession, serving the public and the profession by promoting justice, professional excellence and respect for the law? Do not higher notions of personal conscience and morality also figure in the equation -- i.e., moralism, commonly defined as a practice distinct from religion but one nonetheless requiring its practitioners to live by personal moral standards?
Generally, laws are absolute rules established by the state for the preservation of order in society, whereas morality relies on the personal views of its members regarding what is right versus what is wrong in any given situation. Sometimes the laws of the state may represent underlying moral views. In the case of ethics, a violation will not necessarily be punishable as opposed to a violation of law where the prohibited activity generates punishment. A dictionary definition of ethics relates them to morals concerning human conduct. The purpose of ethics is to define acceptable human behavior through knowing the types of conduct, its consequences, and the limits of both humans and actions, as well as their acceptability.
On the other hand, morals are concerned with the good or bad aspects of human character or behavior and the distinction between right versus wrong. Legalism relates to excessive adherence to law or formula. The Legalists advocate government by a system of laws that rigidly prescribe punishments and rewards for specific behaviors. They stress the direction of all human activity toward the goal of increasing the power of the ruler and the state. The rules of morality do not mandate or command; they are beliefs. Laws, on the other hand, are the rules a country or community mandates its citizens follow in order to regulate society.
In view of the litigious society we have become, the question is what are the legal, ethical and moral obligations of lawyers when realizing they are representing or defending a client who is guilty or not entitled to the recovery being sought? How far do they go in pursuit of a victory that can be considered free and just under the law? Without attempting to solve the dilemma, because there is a plethora of literature on the subject, the only purpose here is to provide an overview of the problem and consider a significant representation of viewpoints.
When we speak of legal ethics, we are referring to a code of conduct controlling societally expected professional behavior. The ABA Standards for Approval of Law Schools require that students take a course in legal ethics as a condition of graduation. Not only must law schools require this, but those courses must also include instruction in the ABA's ethics rules.
"There are at least three aspects to an empirical assessment of the connection between legal ethics and ordinary morality. The first is whether legal ethics rules and ordinary morality reach different verdicts about specific actions. Divergence would be realized if ordinary morality forbids an action that legal ethics rules permit or require; if an action were required as a matter of ordinary morality, but forbidden or optional under legal ethics rules; or if an action were optional as a matter of ordinary morality but forbidden or required by rules of legal ethics. By contrast, legal ethics and ordinary morality converge if both schema reach the same verdict." Stephen Galoob & Su Li, "Are Legal Ethics Ethical? A Survey Experiment," 26 GEO. J. LEGAL ETHICS 481 (2013).
In their 2005 article, "Reconceptualizing Advocacy Ethics," 74 GEO WASH. L. REV. 1, 66-67 (2005), Fred C. Zacharias and Bruce A. Green tell us there are "two seminal approaches" to legal ethics: "zealous advocacy" on the one hand and "emphasis on personal conscience and discretion" on the other, never fully embracing either. A third conception is where "advocates owe fidelity to the court as well as to the client and therefore ... may not do everything legally permissible to promote the client's cause ... [where] limits on advocacy and partisanship are not derived from personal morality but are implicit in lawyers' professional undertakings." When "no definitive direction has been given, lawyers must rely on their own sense of professional (as opposed to personal) propriety ... In the final analysis [the] middle-ground perspective may provide a more palatable approach than either of the traditional conceptions of the advocate's role."
To minimize the dilemma between code ethics and personal ethics, "there are some simple questions lawyers could pose as they evaluate anything from the decision to represent a client to duties with regard to witnesses and truth, or the lack thereof: (1) Have I considered the long-term impact of my decision on this client, my career and the justice system? (2) Is this decision balanced? How would I feel if I were opposing counsel? (3) How would my conduct be reported by an informed and critical reporter? (4) Would I be comfortable if all members of the profession followed my standards? (5) Have I counseled my client about the long-term implications of his decisions? These five questions refocus morality from professional to personal and, oddly, could serve to reinstate professionalism through personal reengagement ... Ethics is the moral science of doing less than the law allows and more than the law requires. Absolute reliance on professional rules produces an atmosphere and profession in which the minimum becomes the maximum. Legally appropriate is not always morally sound. Nor is legally appropriate particularly good for the soul. Periodic reengagement brings a sense of perspective." Marianne M. Jennings, "Moral Disengagement and Lawyers: Codes, Ethics, Conscience and Some Great Movies," 37 DUQ. L. REV. 573, 600-01 (1999).
Our system of ethics "instructs lawyers that the broader social implications of legal work are subverted by the goals of individual representation." "Role morality enables lawyers to provide legal assistance to a client even if it conflicts with the lawyer's personal moral grounding and notions of justice. This is because the lawyer's role is simple: the lawyer is the agent for the client-principal and is ethically obligated to advance the client's interests. Thus, the lawyer's conduct on behalf of the client does not represent the lawyer's morality, but instead reflects the client's moral or immoral perspective ... [justifying the lawyer helping the client with representation] ... albeit immoral by the lawyer's standards, goals." John P. Sahl, "The Rainmaker Film: A Window to View Lawyers and Professional Responsibility," 48 U. MEM. L. REV. 826, 843-44 (2018).
As lawyers, we have been raised to advance our clients' interests at all costs. It is not a good feeling to realize that not-so-nice people are using our services. Julie A. Oseid & Stephen D. Easton, "The Trump Card: A Lawyer's Personal. Conscience or Professional Duty?" 10 WYO. L. REV. 415, 417 (2010). In the cause of conscience, lawyers should "never completely get over being bothered by having their good work used to advance or protect bad behavior." The conventional conceptions of the lawyer's role as an advocate for a client with the purpose of maximizing client gain have resulted in a code of ethics and body of law that enshrines adversarial ethics as a normative matter.
Adversarial ethics are inadequate for many lawyer roles, including those of mediator, arbitrator, advisor, and facilitator, and they distort the other roles lawyers might play when they conduct themselves as problem-solving professionals. Carrie Menkel-Meadow, The Evolving Complexity of Dispute Resolution Ethics," 30 GEO J. LEGAL ETHICS 389 (2017).
We need to keep in mind that "legal ethics must be about more than well-drafted rules ... [or] avoiding the violation of the rules ... An ethical norm need not be embodied in a rule to make a difference to practice. Many norms resist embodiment in rules, because they call for the exercise of judgment, or require for their application the kind of fact-sensitive particularism that cannot be dealt with ex ante ... [S]ome practical problems would be handled very differently by lawyers who are appropriately concerned with ideals such as truthfulness and political legitimacy. The subjective perspective is grounded in admirable ideals, particularly loyalty to clients. But without sufficient respect for truthfulness as an ideal, the practice of lawyers representing clients within the law is at risk. Advocacy has much in common with storytelling, but a legal argument is not just a story. It is a story that bears the right kind of relationship with the law and the facts. Legal argument is a process of giving public reasons, which cannot be merely what one interested party believes to be the case. Losing the connection with what objectively is the case means giving up the distinctiveness of legality as a value and legal argument as a social practice. This is a risk to which lawyers and legal ethics scholars should be more attuned." W. Bradley Wendel, "Whose Truth: Objective and Subjective Perspectives on Truthfulness in Advocacy," 28 YALE J.L. & HUMAN. 105, 159-60 (2015).
What about the ethical lawyer and "Rambo tactics"? These will not go away until we discourage and curtail their profitability. This is up to the lawyer rather than the client because the lawyer has the power to say No! This has created a growing concern "about the importance of lawyer professionalism and civility as critical factors in both (1) the efficient and effective administration of justice; and (2) in the public's ability to afford legal services in an atmosphere of unprofessional tactics. Unprofessional and unethical lawyer behavior towards fellow lawyers and their clients degrades the mission of justice and impedes the settlement of disputes." Allen K. Harris, "The Professionalism Crisis -- The 'Z' Words and Other Rambo Tactics: The Conference of Chief Justices' Solution," 53 S.C. L. REV. 549, 598-600 (2002).
How do we find a viable means for identifying and exploring a disconnect between law and individual morality -- i.e., when there is a clash between moral values and the law? This makes for a much-needed conversation that many say has been ignored by the law school curriculum and by the culture embraced by historical legal practice. It is a conflict between client-centered lawyering and collaborative client counseling. Renee Newman Knake, "Beyond Atticus Finch: Lessons on Ethics and Morality from Lawyers and Judges in Postcolonial Literature," 32 J. LEGAL PROF. 37, 64-66 (2008).
What does the lawyer do in deciding whether a guilty client should confess to a crime, where two critical client interests are in conflict: The client's interest to avoid criminal punishment versus the client's interest in a clear conscience? Four options have been considered for the counselor-at-law who represents a client who has committed a crime:
(1) convince the client to confess;
(2) convince the client not to confess;
(3) raise the possibility of confession, but remain neutral as to the client's decision; and
(4) raise the possibility of confession but engage the client in moral discourse about this choice.
Moral discourse would seem be the best option for both the client and the lawyer. Robert F. Cochran Jr., "Crime, Confession, and the Counselor-at-Law: Lessons from Dostoyevsky," 35 HOUS. L. REV. 327, 396-97 (1998); see also Robert F. Cochran Jr., "Which Client-Centered Counselors?: A Reply to Professor Freedman," 40 HOFSTRA L. REV. 355, 366 (2012).
There is also a theory of legal ethics that is grounded in fidelity to the law. This does not mean "the lawyer's responsibility is to do right on an all-things-considered basis. Nor is the lawyer acting as an individual moral agent, doing right by her own lights. The lodestar here is always an interpretation of applicable legal norms. Because we disagree in good faith and, in many cases intractably, it is unrealistic to expect the process of moral reasoning alone to provide a stable framework for cooperative social activity. The law has authority to the extent it permits us to move beyond moral disagreement and settle on a common framework for action." W. Bradley Wendel, "Professionalism as Interpretation," 99 NW. U.L. REV. 1167, 1232-33 (2005).
Practicing mindfulness can improve lawyer decision-making, ethics, and leadership. However, in the area of legal ethics, there are multiple frameworks, theories, and models of how and why mindfulness has the benefits or promises and the risks or perils that it does. Peter H. Huang, "Can Practicing Mindfulness Improve Lawyer Decision-Making, Ethics, and Leadership?" 55 HOUS. L. REV. 63, 152-54 (2017).
When considering the ethics of lying in negotiations, we need to face the truth and take several steps. Ethics must come before our actions. Several "concrete steps" might be taken. First, we need to acknowledge we have a personal stake in the existing discourse concerning the relationship between effectiveness and the ethics of the situation. Second, we should admit "lying works." Third, we must become "more critical of our self-serving claims about what is not a lie and about what lies are ethically permissible." This requires an acknowledgment that lies are not justified by the "rules of the game or by our duties to our clients." Ethics and integrity may require a cost. Fourth, consider how winning can "leaves room for ethics." Gerald B. Wetlaufer, "The Ethics of Lying in Negotiations," 75 IOWA L. REV. 1219, 1272-73 (1990).
"The prevailing notion among lawyers seems to be that the lawyer's duty of loyalty to the client is the first, the foremost, and, on occasion, the only duty [because] ... lawyers have always attempted to serve both their clients and themselves, and also have been required to serve the legal system as officers of the court. Despite the best efforts to cabin one or more of these duties, this professional and personal tension is ineradicable. The lawyer is always juggling several balls, in the impossible hope that they will remain in the air." Michael S. Ariens, "Brougham's Ghost," 35 N. III. U.L. REV. 263, 314-15 (2015).
We have come a long way from the orthodox traditional view of legal ethics as part of professional responsibility that initially was not even a required law school course. Today, each lawyer is required to be the captain of a ship put out to sea in a rough storm of competing ethical interests where the only certainty is uncertainty. He may be asked to do something professionally that "bothers his conscience." However, he has free will to refuse and follow his moral sense of right and wrong. "A lawyer is also a human being. As a lawyer, she often has well-defined duties. As a human being, she must be guided by a conscience that the lawyer should monitor, nurture, and follow, even, occasionally, when it leads to conduct different from that required by the lawyer's duties." Oseid & Easton, 10 WYO. L. REV. at 415-17, 440-42.