A PROPOSAL for the MORAL PRACTICE of LAW Kathleen S

A PROPOSAL FOR THE MORAL PRACTICE OF LAW Kathleen S. Bean*

The legal community has been the recipient of numerous scholarly contributions in its search for a theory of proper moral and ethical standards for the practice of law.' These explorations of moral issues in the practice of law have clarified two primary theories of moral lawyering-one endorses the concept of "role m~rality"~in the practice of law; the other argues for the integration of personal morality into one's practice. Along the way, there have been illuminating discussions of rule and act utilitarianism, and deontological and teleological moral philosophies as applied to the practice of law, and all together this scholar- ship has generated a good collection of controversial and thought-pro- voking essays and articles. What appears to be missing thus far, however, is a philosophy for the practitioner - a philosophy that ac- commodates whatever moral theory a lawyer might adopt and which converts that theory into an instrument that can be used in practicing law on a day-to-day basis. In this paper I do not propose any new theory of professional ethics, nor do I enter the debate as to which theory of professional ethics is right for the legal profession. Instead, I propose a philosophy of practice designed to assist the moral practitioner to succeed in the goal of a moral practice of law, no matter what theory of professional ethics that practitioner has adopted. The discussion of this philosophy of practice should be helpful to

* Associate Professor of Law, University of Louisville. 1. A very brief sampling: THE GOOD LAWYER (D. Luban ed. 1983); D'Amato & Eb- erle, Three Models of Legal Ethics, 27 ST. LOUIS U. L.J. 761 (1983); Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469 (1966); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer- Client Relationship, 85 YALEL.J. 1060 (1976); Kelso & Kelso, Conflict, Emotion, and Legal Ethics, 10 PAC.L.J. 69 (1979); Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63 (1980); Schneyer, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 WIS. L. REV. 1529; Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. RES. J. 543; Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 30; Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975). 2. See text accompanying notes 4-13. 50 The Journal of the Legal Profession law teachers and law students, as well as practitioners. I use this philosophy in structuring my course on professional responsibility and find that it provides a good framework for the course. This approach to the topic has also received a very favorable response from my students. However, the most favorable reaction to this theory comes not from my students (who have yet to encounter day-to-day decisions in the practice of law), but from the lawyers who comprise my audiences at continuing legal education programs. Their comments have led me to believe that the plainness of my proposal provides an instrumental quality that is appealing to the concerned practitioner. For no matter if a lawyer has chosen, or instinctively acts in accordance with, a moral standard for practice which adopts the lawyer role-morality concept or a moral standard which requires integration of one's personal morality into one's professional morality, the moral lawyer feels the weight of the choice made. This weight is inevitable, as both of these theories of professional morality, along with those theories that lie between the two, have their moral shortcomings, and a moral lawyer will feel moral shortcomings.3 Lawyers need to address these shortcomings in order to have a well-rounded theory of moral practice and to treat the feelings of moral inadequacy induced by those shortcomings. Both of these objectives can be accomplished with a philosophy of practice that recognizes the theoretical foundation of the lawyer's moral philosophy for practicing law and also deals with the shortcomings in a practical and quantifiable manner. Thus it is primarily for the concerned moral practitioner that I offer this discussion.

11. THESPECTRUM OF MORALLAWYERING - ZEALOUSREPRESENTATION AND TRUTH AND INTEGRITY With some focus and reflection, lawyers and law students are generally able to catalogue their instincts concerning the moral practice of law as either leaning towards the zealous representation end of the ethics spectrum or the truth and integrity end of the spectrum. Each end of the spectrum holds a little of the other and most lawyers fall somewhere in between, but usually the orientation of a lawyer's morality in the practice of law is consistent enough to be classified as one or the other. The zealous representation end of the spectrum reflects the law-

3. Gerald Postema would not necessarily agree that the role morality lawyer would feel the weight. See Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U.L.REV. 63, 69-70 (1980). The Moral Practice Of Law 5 1 yer morality attributed to the concept of role morality. "Role morality," a concept admirably explained by Richard Wasser~trom,~is the usual name given to the notion that a lawyer can morally justify whatever he or she has done because zealous representation of the client required it.= Moral considerations which might otherwise apply and require a different course of conduct are not relevant as long as one is operating in the role of zealous lawyer and within the professional standards that have developed for that role. The role morality concept serves not only as a justification for ignoring whatever moral considerations might apply in real life (as op- posed to the professional life), but also as an argument for prohibiting consideration of personal moral standards. In order to keep the system functioning optimally, goes the argument, all persons must fulfill their assigned roles. The limited role of the lawyer is to adhere to the professional morality standard requiring zealous representation of one's client. Bringing in the lawyer's notion of what is right or wrong, or moral or immoral, will upset the fine balance of the sy~tem.~ Murray Schwartz has defined this type of lawyer's role as being determined by two principles: Professionalism and Nonaccountability. The principle of Professionalism requires that "[wlhen acting as an advocate, a lawyer must, within the established constraints upon professional behavior, maximize the likelihood that the client will prevail."' The principle of Nonaccountability requires that "[wlhen acting as an advocate for a client according to the Principle of Professionalism, a lawyer is neither legally, professionally, nor morally accountable for the means used or the ends achieved."e Basically, the first principle requires maximizing the zealousness with which the lawyer represents a client8 by pressing every advantage and stretching every limitation. The far end of the role morality spectrum is marked by some established constraints upon professional behavior, but, by definition, these are few to the zealous representation lawyer. For example, while role morality lawyers usually acknowledge the limitation that lawyers not break the law,lo they also interpret the

4. Wasserstrom, Lawyers as Professsionals: Some Moral Issues, 5 HUM. RTS. 1 (1975). 5. Id. at 5-6. 6. See, e.g., Postema, supra note 3. 7. Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. RES. J. 543, 544. 8. Id. 9. This assumes that the lawyer has already taken the case. 10. See Postema, supra note 3, at 73. 52 The Journal of the Legal Profession law with their zealous representation hats on; thus the law is inter- preted, if at all possible, to suit the needs of their client. Another traditional limitation is that which requires a lawyer to take action to disclose a fraud upon a person or tribunal if the lawyer discovers that a client has committed such a fraud in the course of representation, unless the information is protected as privileged.ll Most role morality lawyers rarely encounter a situation of fraud by a client that the invocation of the lawyer's duty of confidentiality does not resolve. The limitations ac- knowledged by the role morality lawyer vary, but they are consistently and uniformly constricted by the countervailing interests of zealously representing the client.12 The second principle, that of Nonaccountability, relieves the lawyer of moral responsibility for the possibility that a law was substan- tively, if not technically, broken, or for the fraud that was committed upon the tribunal and never reported because the lawyer was denied the breadth of role to do anything about it. The lawyer is powerless to do anything but represent the immoral client in achieving immoral ends by immoral means, if that is what the role of zealous representation requires. l3 At the other end of the spectrum are the lawyers who carry their personal moral standards for truth and integrity into the practice of law, and practice law in accordance with that personal code of ethics. This is no more than it appears to be. These lawyers will not accept cases they personally believe to be immoral, even though the law allows the action (e.g., a statute of limitations defense on a debt); they will not use immoral means, even though the means may be legal, to obtain a client's goal (e.g., these lawyers would not conduct a misleading cross- examination of a truthful witness).14 Underlying this view is the assumption that the lawyer will, and should, recognize that what is legal representation is not always moral representation. Simply because a client has a legal cause of action or defense does not mean that a lawyer is bound to assist the client with his or her cause. In fact, if the ultimate goal is immoral, the moral truth and integrity lawyer is required to refuse assistance to the client. In addition, the integrity lawyer remains morally accountable for acts committed in the role of lawyer, just as if the lawyer committed the same act outside of his or her lawyer role.

11. MODEL CODE OF PROF. RESP.DR 7-102(8)(1)(1980). 12. For additional reading, see Schwartz, supra note 7 13. See Postema, supra note 3, at 73. 14. See Schwartz, supra note 7, at 557. The Moral Practice Of Law 5 3

Thus, even if the client's goal is moral and the client deserves the goal, the integrity lawyer is precluded from using immoral means to get there, even if that effectively precludes the client from his or her right- ful and moral end. Like their counterparts, these lawyers also have some limitations upon the imposition of their moral standards. These are harder to illus- trate and pin down than the zealous representation lawyers' limitations for the very reason that they reflect the individual lawyer's personal standards of truth and integrity. These limitations include a general ac- ceptance of the basic rules of the adversary system, i.e., that each party is responsible for carrying his or her own burden of proof in a civil case, and in a criminal case the government must prove guilt beyond a reasonable doubt. However, the integrity lawyers believe it is wrong to take unfair advantage of an adversary's weakness, incornpe- tence or mistake when doing so will result in suppressing the truth. In such an instance, truth and integrity lawyers will correct opposing counsel if he or she mistakenly assumes a misleading fact, or will provide information to opposing counsel if he or she has not been competent enough to obtain relevant information. While truth and integrity lawyers accept that their job is to represent their client in an adversarial system, they consider truth and integrity to be paramount values in their occupation; the needs of a particular client or potential client must be secondary to these values. Another method of comparing the two ends of the spectrum is labeling and viewing them as the "battle" model of adjudication and the "truth" model of adjudication.15 This method of comparison is helpful in that it suggests the morality of each of these theories. Cer- tainly either philosophy can be a subterfuge - for lawyers who choose zealous representation, it can be a course chosen out of love for the battle, with no thought of morality; for lawyers who choose truth and integrity, it can be a course chosen out of concern for their reputation, with no thought for the morality of law or the legal system. But, either theory can also be a philosophy that a moral lawyer has chosen as the best moral way to practice law both for law and the legal system. As long as some limitations are observed and these lawyers stay within the moral spectrum created by the outside limitations to each theory, either of these philosophies can be the choice of a moral lawyer looking for a moral way to practice law.

15. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 30, 31. 54 The Journal of the Legal Profession

While both models are theoretically committed to truth, and ultimately to justice and morality, the battle view lawyers assume the best way to find the truth is for two zealous lawyers to fire their ballistics in the courtroom, with the victor, and thus the truth, to be determined by the judge or jury.16 The truth model lawyers do not rely solely upon the adversary system to bring truth, and ultimately justice and morality, to the surface, but rather rely upon each lawyer assuming a personal moral duty to see that the truth comes out." The premise of each of these models is determined by the place- ment of moral responsibility. In the battle model, moral responsibility is placed with an adversarial system that stresses zealous representation. These lawyers operate with a role morality because they believe that the system demands it; allowing personal morality to intrude upon their professional conscience will upset the balance of the system of which they are part. Because they believe that the system is the best method available for obtaining truth, justice and morality, these lawyers act to keep the system consistent and play by the zealous representation rules. Thus the responsibility for a moral outcome by moral means rests with the system, not the individual lawyer. The lawyer's moral responsibility is limited to playing the role of zealous lawyer. In the truth model, the moral responsibility of the means and outcome lies directly at the feet of the individual lawyer. Thus, rather than make a (moral) choice to play the amoral role that lawyers are assigned within an adversarial system (which is presumed to be ultimately moral), these lawyers make personal truth and integrity a part of their chosen system for finding ultimate truth and justice, thereby assuming a more direct and personal moral responsibility.

111. THE MORAL LAWYER The challenge is to find a philosophy of practice adaptive to both ends of this spectrum of moral practice. In addition, it must also be a philosophy responsive to the pragmatic needs of the lawyer whose moral choice is shaped more by instinct than by intellectual reflection. Even for those lawyers and law students with the inclination and capac- ity for intellectual pursuit of moral lawyering theories, the realities of law school and demands of practice often preclude any such pursuits. Thus it must be a philosophy that can leave the pages of this law jour-

16. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469, 1470 (1966). 17. Supra note 15, at 35. The Moral Practice Of Law 5 5 nal and make itself at home in the office of lawyers who are good- intentioned, but lack the time or education necessary for extended reflection upon differing moral philosophies and how they relate to the practice of law. Assuming an ideal education, by graduation law students should understand deontological moral philosophy, along with act and rule utilitarianism and teleological moral philosophy.lBThey should also be able to articulate the concept and consequences of role morality in comparison to the integration of truth and integrity into the day-to-day practice of law. ,From this, as lawyers they could choose or construct a philosophy for the practice of law that would carry out the moral philosophy of law they chose. This would indeed be ideal. However, the required course on professional responsibility at most law schools, where unfor- tunately much of this philosophical construction would need to be done, falls far short of providing the necessary groundwork. Lack of credit hours for the course, along with the corresponding attitude with which the students greet the course, rarely result in the time or the milieu needed for providing the most motivated student with a complete education in professional responsibility. Realistically, a law teacher can hope to supply the most elementary groundwork for these concepts, and provide some stimulation for thought during law school. Presumably, most students will give some thought to the fact that the practice of law has moral dimensions and consequences. This may motivate some students to characterize, as best they can, their personal moral philosophies of life. With some luck, a few students may be stimulated to evaluate that personal moral philosophy within the context of the practice of law, and to draft a philosophy for practice that reflects their considered judgment on how best to achieve morality and justice in law. As a practical matter, however, it is difficult for the student to reach this last stage during law school even if the ideal situation exists. As with any law school subject, the practice of law provides lessons teachers cannot teach. For a student to acquire such a level of understanding without a flesh-and-blood moral dilemma, a combination of a rare and mature student, a rare and accomplished teacher and a rare school atmosphere would be needed. It is, however, a realistic expectation that most students can understand the concept of role morality and recognize that, whether by moral choice or moral instinct, they are at that end of the spectrum or at the end where there is integration of a personal morality of truth and 56 The Journal of the Legal Profession

integrity into the practice of law. It is also realistic to expect them to know the rules of professional responsibility - that is, what to do in a given situation (that presumes no countervailing values), e.g., do not split fees unless "the division is in proportion to the services performed by each lawyer [et~.]"~~ As for practicing lawyers, my experience is that any effort at refin- ing the thoughts they have concerning the ethics of practice occurs most frequently in cocktail conversations or at dinner parties, and rarely gets applied in a considered and systematic way at the office. When they are confronted with an ethical problem at work, their energies are first focused on getting the right answer for an imminent situation. Once they settle on a solution for the problem, thoughts of developing and applying a consistent philosophy to their practice of law are edged out by demands of another lawyer deadline.20On the other hand, lawyers, like law students, are familiar with the spectrum of moral lawyering that reflects the level of emphasis on zealous representation and

' truth and integrity. Their degree of consciousness as to what kind of lawyer they are may vary, but their instincts will usually inform them of the choice they have made, and their instincts usually lead them to actions consistent with that choice. Lawyers are also fairly knowledgeable about or familiar with the rules and standards of professional responsibility, either from studies in law school or from custom and practice in the legal community.

IV. THE PROPOSAL A. The Problem So why is more needed? What does the moral lawyer or law student lack that a philosophy of practice can provide? To begin with, at the same time that the lawyer or law student's thoughts or instincts manifest resolutions of ethical problems and identify where the lawyer or student falls on the moral lawyering spectrum (whether or not they have considered or attempted to characterize a philosophy for the practice of law), both student and lawyer recognize or intuit the same determinative impediment. No matter if one has a moral theory or not, and no matter what the theory is, a theory does not do away with conflicts of morality in the practice of law. Choosing a philosophy is

19. MODEL RULESOF PROF. CONDUCTRule 1.5 (1983). 20. See generally, Schneyer, Moral Philosophy's Standard Misconception of Legal Ethics, 1984 WIS. L. REV. 1529, 1530-31. The Moral Practice Of Law 57 one thing; synthesizing it into one's practice is another. First, while a considered philosophy will reduce the number of day-to-day moral judgment calls and provide guidance on the ones remaining, all philosophies have their boundaries: lawyers will have to find them or make them through their decisions in the practice of law. Second, each boundary has its own moral compromise: lawyers must recognize and address those moral compromises to fulfill their moral duty, no matter which end of the spectrum they choose. A major boundary-setting task for the role morality lawyers, those lawyers who adhere to the outside limit of zealous representation, will be to decide what is the outside limit of the law or the rule of professional responsibility. Truth and integrity lawyers, whose moral mandate includes not taking unfair advantage of an opponent, will be faced with deciding what is taking unfair advantage and what is merely getting a fair deal for their client. In fact, integrity lawyers may carry a greater burden than zealous representation lawyers in the boundary setting arena. By virtue of their choice to integrate personal morality into their practice of law, they create a system filled with moral choices at every step.21 But neither type of lawyer can escape the duty of setting boundaries. Charles Fried, who recognizes the ongoing task of line drawing when implementing a philosophy for the practice of law, says of his "Lawyer as a Friend" model for practice:

I do not imagine that what I have said provides an algorithm for resolving some of these perennial difficulties. Rather, what I am proposing is a general way of looking at the problem, a way of understanding not so much the difficult borderline cases as the central and clear ones, in the hope that the principles we can there discern will illuminate our necessarily approximate and prudential quest for resolution on the b~rderline.~~

Illumination is probable - resolution is impossible. No theory can take the judgment out of a moral law practice, no matter what ethics the lawyer has chosen.23 The theory certainly should help with those clear and central problems, but the practice of law simply has too many cases involving ethical dilemmas that do not involve clear and

21. Cf. Simon, supra note 15, at 143. 22. Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Rela- tionship, 85 YALEL.J. 1060, 1087 (1976). See also id. at 1081, 1084. 23. See Postema, supra note 3, at 67. The Journal of the Legal Profession simple issues.24There is a cost to the lawyer who takes the moral energy to exercise the judgment necessary to implement a moral theory for the practice of law, and it translates into a moral stress. For zealous representation lawyers, for example, there is the lingering doubt that the boundary that allowed the lawyer to. use the "imaginative and hyperbolic" statement to deceive opposing' counsel (in the same manner that a false document would have)2sstretched into the range of false statement of fact. The boundary that separates imaginative and hyperbolic statements of fact is one that theoretically provides the distance the lawyer must have to be morally comfortable in the zealous representation role; the lawyer must still answer for whatever occurs outside of the role. Thus, while the lawyer knows that all role-playing is for- given, he or she is unsure whether the 'boundary, which placed the statement in the category of imaginative and hyperbolic instead of intentional mistatement, was accurately drawn in the first place. The comparable situation for the integrity lawyer may be when opposing counsel has for some reason assumed the existence of a fact that is very favorable to the truth and integrity lawyer's client. The integrity lawyer is left to draw the boundary of truth and integrity; has the erroneous assumption affected the negotiations; has it resulted in an offer that is extremely generous for the client; has it resulted in an offer that the integrity lawyer considers just and fair for the client; and does truth and integrity require the lawyer to correct the mistaken assumption? Those decisions must be made; the lines must be drawn.2s Both truth and integrity lawyers and zealous representation lawyers must designate the boundaries that position them at their end of the spectrum. Knowing which end they want to adopt and getting there are not the same thing. The task of making the decisions that position a lawyer on the spectrum of moral practice is a daily one and the an- swers are often tentative and stressful. Just as the theories do not eliminate judgment calls or the moral stress of wondering if a decision accurately reflects the lawyer's moral theory, they also fail to negate the feelings of moral inadequacy that result from the lawyer making a judgment call of which the lawyer is fairly confident. No matter how well thought out a lawyer's moral philosophy for practice might be, and how much illumination those

24. See Kelso & Kelso, Conflicts, Emotion and Legal Ethics, 10 PAC. L.J. 69 (1979). 25. Cf. Simon, supra note 15, at 143. 26. Rubin, A Causerie on Lawyer's Ethics in Negotiation, 35 LA. L. REV. 577, 585 (1975). The Moral Practice Of Law 59 thoughts provide so that the lawyer can make a "correct" judgment call, both zealous representation lawyers and integrity lawyers are left with the compromise inherent in a zero-sum spectrum. Students sense this almost as quickly as they learn that the American Bar Association's Model Code of Professional Responsibility or the Model Rules are less a scripture than they are a fertile breeding ground for moral dilemma. A zealous representation lawyer is left to deal with the sometimes unjust consequences when his or her role playing is "too" successful, just as the integrity lawyer is left to deal with the sometimes unjust results of being "too" honest. More specifically, zealous representation lawyers must live knowing someone guilty has gone free because the actions of the defense lawyer allowed by the law for good and moral reasons, and used by the lawyer for those reasons, worked; the zealous representation lawyer must live knowing that he or she is responsible for the contempt a witness has for the lawyer-and perhaps for the entire system of justice - because the lawyer, to successfully present his or her deserving client's case, found it necessary to conduct an abusive cross-examination of a witness who the lawyer knew was telling the truth.27 For integrity lawyers it means living with the stress created by the unsettling feeling that even though their client got a fair settlement, they could have gotten more for the client and still stayed within the range of a "fair" and moral sum, had they not been so forthcoming with information. It means believing that they could have accomplished the better outcome (for child and parents) by getting their client custody of his or her child, had the lawyer been willing to be blind to the client's good faith but negative response in a deposition to a question concerning smoking marijuana- the marijuana being a subject the fair but conservative judge found to be very important. Living with these consequences and more is difficult for any lawyer. Even if the lawyer has thought about what theory of professional responsibility he or she wants to use in practice and believes that there was good moral reason for the guilty client going free or knows that a moral purpose was served even though the client lost custody, the

27. A true life story: a decision was made to subpoena an eight-year-old boy to testify about a man whom the lawyer believed had sexually molested the boy, in order to demonstrate the unsuitability of the man as the custodian of another child. It was probable we would win without the testimony, but not certain. It appeared as though the boy was not emotionally equipped to testify without suffering emotional and mental harm. The parents of the eight-year-old were angry and bitter that a system of justice would allow this to be done to their son. 60 The Journal of the Legal Profession lawyer still knows that these are the consequences of the theory the lawyer has chosen to implement, be it that of zealous representation or truth and integrity. For those lawyers who are operating on instinct, and particularly for those who are denying that the compromise is there, it is probably much harder, for those lawyers do not have the benefit of clearly understanding why they chose to take a certain action in the first place. As Ted Schneyer points out, this is just the tip of the icebergzB These consequences are all within the area of compromise the lawyer anticipated when drawing the boundaries of his or her moral theory. When the rest of the system is not behaving as expected, a lawyer's moral stress, from both the linedrawing and the reality of moral compromise, is exacerbated. For example, because the zealous representation lawyer relies upon the adversary system, when the system is not operating at par, i.e., the opposing lawyer is not skilled or zealous enough to see through the tactic the zealous representation lawyer feels obligated to use, the zealous representation lawyer may be forced to reevaluate his or her philosophy in light of the circumstances of implementation. The battle model, after all, is designed to work (promote truth, justice and morality) based on the premise that all of the combatants are adequately, if not equally, armed. In addition, most role morality theorists add to the premise that the battle be fought in the indisputable adversarial field- the courtroom with the judge presiding. "Though [the principles of Neutrality and Partisanship] might promote wise and informed decisions when both parties are represented by equally well-equipped lawyers whose performance is closely monitored by an impartial judge, such ideal lawsuits are only the tip of our legal iceberg.'f2e Schneyer suggests what comprises the rest of the iceberg. Con- sider the following situation:

[A] large real estate operation wants to sue a tenant who cannot obtain counsel or whose lawyer can only devote minimal time and effort to the matter. In such a case, if Neutrality and Partisanship spurred the landlord's lawyer to act as an aggressive and single- minded advocate, not only might the proceeding strike the tenant (and us) as unfair, but on the adversary's system's own assumptions the decisions might be less informed than if the landlord's lawyer had considered the tenant's claims sympathetically. Moreover, it is

28. Schneyer, supra note 20, at 1542. 29. Id. (footnote omitted). The Moral Practice Of Law 61

not litigating, but counseling, negotiating and drafting that make up the largest chunk of the legal iceberg. Here lawyers are very often free of the constraints that check their behavior in court; an impartial decisionmaker and a watchful opposing counsel.30

When the system is so far out of synch that even the zealous representation lawyer cannot ignore it, the lawyer's stress increases. While the zealous lawyer might not be troubled enough to change the boundaries of his or her philosophy, deciding instead to maintain con- sistency of action, certainly the lawyer is pressed to question once more the role he or she has chosen for moral lawyering. The other side of the tip of the iceberg is when the truth and integrity lawyer finds him or herself opposing an attorney willing to take whatever can be taken and willing to use any means in order to do It may be that the combination of truth and integrity with the opposing counsel's far-end of the spectrum, zealous representation does not bring about the result the integrity lawyer anticipated when choosing which end of the spectrum was right for the moral practice of law. Again, while the truth and integrity lawyer may not change his or her ways, the price of the chosen theory of moral practice increases both in the stress of drawing the lines and in the consequences of the action. When the implementation of the lawyer's moral choice is in a system that is not cooperating, the price of implementing the choice ' and the number of compromises required are increased. Jotin Noonan, Jr. says that the "seeking and stating of truth are so necessary to the human personality and so demanded by broad social values that the systematical presentation of falsehood [demanded of the zealous representation lawyer] is both personally demeaning and socially fr~strating."~~"[A lawyer] is also a human being and cannot submerge his [or her] humanity by playing a technician's role."33 While this applies to and describes the zealous representation lawyer, the same can be said for the integrity lawyer. That lawyer, too, has chosen to be a technician who operates within a role- an actor whose script demands personal truth and integrity. Zealous representation does not guarantee justice and morality, and thus a stress-free moral conscience;

30. Id. 31. See Kelso & Kelso, supra note 24, at 71. See also Rubin, supra note 26, at 590 (quoting V. COUNTRYMAN& T. FINMAN, THE LAMER IN MODERN SOC'Y 281 (1966)). 32. Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 MCH. L. REV. 1485, 1492 (1966). 33. Id. 62 The Journal of the Legal Profession

neither does truth and integrity. Sometimes it simply insures that the wicked will prevail and the innocent will lose. Sometimes it merely insures an unjust result at the cost of preserving a principle of truth and integrity. Most moral lawyers, and especially those lawyers who have consciously chosen their moral theory for practice, will acknowledge that no theory is perfect and that the other end of the spectrum has much which is defensible. These lawyers are most likely aware that the inevitable shortcomings of any chosen theory are a major cause of stress in their practice of law. The flaw of the zealous representation theory of practice and the truth and integrity mode of practice is that they quit short of the moral mark. A sound and functional philosophy of moral practice must address the moral stress that results from the reality of placing theory into practice. It must recognize the stress of the lawyer who has chosen to be personally morally accountable for the truth and integrity of the methods used and the results achieved in any given case. It must recognize the stress of the lawyer who, while rejecting moral accountability on a day-to-day basis, lies in bed each Saturday night and takes tally of the moral compromises made that week in the name of "lawyer." It must offer reassurance to these lawyers who have taken their professionalism seriously enough to attempt a moral practice of law. It must give hope that there is rhyme or reason to moral lawyering and that pursuit of a moral practice is not necessarily futile. Most of all, it must be responsive to the frustrated desires of lawyers for clear and ethical guidelines by providing a concrete course of action for them to take. While it is inescapable that practicing at one end of the spectrum compromises the morality stressed at the other end of the spectrum, it is not necessary that lawyers leave the compromise unaddressed, nor should they. They need to address it for two reasons: they need to rid themselves of whatever stress they can in the practice of law, and if they indeed want to have a moral practice of law, they need to address the shortcomings of their theory. It is short- changing their own lawyer morality to end their theory at the border, ignoring the compromise they have left on the other side. They need not draw their boundary in a different place, but they need to address that compromise in order to have a theory of morality which is complete and well-rounded.

B. The Solution I wish I could offer a philosophy of practice that eliminates boundary setting or compromise from the moral practice of law. I cannot. The Moral Practice Of Law 63

However, I believe that lawyers can relieve themselves of much of the stress associated with moral lawyering by adopting a philosophy that recognizes that there is a moral dimension to the implementation of whatever theory of professional ethics the lawyer has chosen. My proposal recognizes that moral lawyers must choose a philosophy for the practice of law, and in addition, must deal with the consequences of the implementation of that philosophy. Choosing the best model of professional ethics does not require boundary setting or moral compromise-it may anticipate the need, but it does not ask that the lawyer do it then. It is the practice of law that requires boundary setting and moral compromise: a (real) guilty person going free, a (real) child going to the wrong (real) parent, and a (real) witness looking at a (real) lawyer with pain and anger and contempt for the cross-examination the lawyer just put the witness through. Recognizing this moral dimension requires addressing the boundary setting and moral compromise that occur whenever a philosophy of professional ethics is taken out of the books and put into the law office. For the framework of this proposal, a proposal for the moral practice of law, one need look no further than the common law of professional responsibility for lawyers. The rules of professional ethics have always served both the integrity lawyer and the zealous representation lawyer. Indeed, the dual service most rules provide - guiding light for one lawyer and limitations for another-is what makes the standards of professional responsibility look like a murky quagmire to both law students and lawyers. Integrity lawyers, for example, read as limitations the rules that they must not fail to seek the lawful objectives of their client "through reasonably available means permitted by law;"34 must not take action that will prejudice their client3= and must not reveal the secrets or confidences of their client.36Zealous representation lawyers view these rules as guideposts in their moral practice. Their limitations, e.g., that they not knowingly use perjury, break the law or make an intentional misstatement of law or fact,S7 are regarded similarly as primary guidance for the integrity lawyer. The rules of our profession simply reflect the spectrum of morality in the practice of law, which includes both types of lawyering as moral. Thus, once a lawyer chooses, there is plenty of support in the law of professional responsibility to make reputable a far-end of the

34. MODEL CODEOF PROF. RESP. DR 7-101(A)(1)(1980)(footnote omitted). 35. Id. at DR 7-101(A)(3)(1980). 36. Id. at DR 4-101(B)(1)(1980). 37. Id. at DR 7-102(A)(4)(5)(7)(1980). 64 The Journal of the Legal Profession spectrum truth and integrity lawyer or a far-end of the spectrum zealous representation lawyer. The problem is that the law of professional ethics also serves as a reminder of the moral compromises of that choice by providing authority that argues against the action causing the compromise. Most lawyers view the standards of our profession as ending there, just as they view their moral practice as ending there, which only adds to the moral frustration they experience. My proposal suggests that lawyers should not quit here, and furthermore, that the standards of the profession do not quit here either. Once a lawyer chooses a moral theory, the rules of professional ethics provide more than support and contradiction for the moral route chosen. They also provide a method for dealing with the frustration and stress that accompany implementation. While this provision of professional ethics has not gone unnoticed, it does not appear as though much attention has been devoted to placing it into a framework that recognizes it as an integral part of the moral practice of law, whether the lawyer be a zealous one or an integrity one. I view it as the final step to completing or fulfilling one's moral theory for the practice of law. The first step is simply noting which end of the spectrum represents the lawyer's moral choice and practicing by that choice. The di- rection of the follow-through varies in accord with the end of the spectrum chosen. The underlying premise of the zealous representation lawyer's theory of morality is that the system that has been designed to find truth (and justice) is ultimately bound to be more moral than a system which relies upon individual lawyers making individual determinations about the morality of the client, the means or the objective in a case. Thus, the most moral choice is to rely upon the adversarial system, in spite of the compromises (and moral stress) that come with that choice. These lawyers need to recognize that their moral stress results from their attempts to place their theory of moral practice, which relies upon a perfect system, into an imperfect system, and that they have not finished their moral task or completed the steps to their moral theory until they address the imperfections of the adversarial system. Their efforts to improve the system will assist in its smooth operation, which, according to the lawyer's own theory, will increase the morality of the zealous lawyer's practice of law. Thus, the boundary setting will become more certain and the compromises will occur less frequently. In turn, the lawyer's stress is reduced! The answer is, of course, not at all that simple and foolproof. But what is simple and ineluctable, and thus appealing to The Moral Practice Of Law 65 zealous lawyers frustrated by their unsuccessful attempts to achieve a practice that is certain and moral, is that while the lawyer cannot make the system perfectly just and moral, the lawyer can do something that is designed to strengthen the weak link in the morality of his or her practice. The zealous lawyer can identify some problems within the system, determine what needs to be done with one or some of them, and assume responsibility for doing it. Furthermore, if the lawyer or the law student experiences some difficulty in determining what can be done to contribute to the smooth operation of the adversarial system, or requires some authority that this is indeed part of a zealous lawyer's responsibility to the moral practice of law, the lawyer need only look to the ABA Model Code of Profes- sional Responsibility, the ABA Model Rules of Professional Responsibil- ity, or the established mores of professional responsibility for lawyers. Professional ethics standards for lawyers do not quit after setting out guideposts and limitations for lawyers at both ends of the spectrum of moral practice. Custom and rules have long included suggestions and requirements for this latter part of a lawyer's moral practice of law.38 What professional standards require of the moral lawyer depends upon which rules of practice the lawyer considers to be guideposts and which are considered to be limitations. Just as the common law of professional responsibility provides support for the theories at either end of the spectrum, it also provides guidance and support for the action necessary to give completion to either theory. Because the Model Code of Professional Responsibility is probably familiar to most lawyers and law students, and because its codification of the mores of professional responsibilty is representative and thus suited to this analysis, it will be used for reference. For zealous representation lawyers, the Code sets out several re- sponsibilities that are in addition and complementary to moral and zealous representation of clients. In Canon 2, for example, the Code em- phasizes making legal counsel available to all. This responsibility is directly related to the premise of the moral path the zealous lawyer has chosen. Zealous representation only "guarantees" a moral system of justice if there is zealous representation for all parties. By engaging in an activity that assists in making legal services available to all, the zealous lawyer can lessen the frequency of moral compromise occurring as a result of one side not being represented. The lawyer thus reduces his

38. See Thayer, Annual Report of the Committee on Ethics, 39 A.B.A. ANN. REP.559 (1914). 66 The journal of the Legal Profession or her guilt and the moral stress that results from seeing the compromise that sometimes results from clients without representation being up against someone with zealous representation. Pro bono work or monetary contributions to legal services organizations that provide legal services to the poor and disadvantaged will also aid in this endeavor. Canons 1 and 6 should be very important to the lawyer who believes in the morality of zealous representation. Canon 6, specifically Disciplinary Rule 6-101, requires that lawyers represent their client competently;=@Canon 1, specifically Disciplinary Rule 1-103, requires lawyers to report any lawyer who violates any disciplinary rule.40Thus Ca- non 1 requires lawyers to report any lawyer who fails to act competently in any legal matter. As the zealous representation lawyer's standards for competent lawyering include a high degree of zealousness, that lawyer may wish to devote professional efforts to insuring that lawyers who do not appear to be sufficiently zealous to do competent battle be subjected to review by the disciplinary board. Even though scores of comments indicate that most lawyers and law students do not view this option as practicable, it is possible that it may become so when placed in the frame of reference of the zealous lawyer's moral theory for practicing law. Viewed outside of this framework, lawyers may see reporting a colleague as being required by the rules of professional ethics, but having little to do with their belief in what makes the system of justice moral. Once a lawyer understands that the root of the frustration and moral stress in the practice of law is the uncertainty and compromise in implementing the moral theory of zealous representation, and further appreciates that insuring the competency and zealousness of other lawyers can directly reduce the number or extent of compromises or uncertainties, then that lawyer may be more inclined to do what needs to be done. Admittedly, the possibility of one lawyer reporting another will remain unlikely. On the other hand, one of the points of this essay is to stress the wide spectrum of morality tolerated by the mores of professional ethics. The provision is

39. MODEL CODEOF PROF. RESP. Canon 6 (1980). See DR 6-101, which states: (A) A lawyer shall not: (1) Handle a legal matter which he [or she] knows or should know that he [or she] is not competent to handle, without associating with him [or her] a lawyer who is competent to handle it. (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him [or her]. 40. MODEL CODE OF PROF. RESP. DR 1-103 (1980). The Moral Practice Of Law 67 there for those lawyers who desire and feel capable of taking advantage of it as a means of achieving a moral practice of law. When a lawyer views the problem as ridding a system for justice of an obstruc- tion to morality, the motivation to report may proceed from a higher calling and perhaps the possibility of reporting will increase. Furthermore, for those who find the reporting duty impracticable or undesirable, reporting is not the only option provided for zealous representation lawyers to address the moral compromises of their practice of law. The same problem can be addressed by taking action pur- suant to the provisions of Canon 8, which suggests-rather innocu- ously-that lawyers should assist in improving the legal system. The range of action this allows the zealous lawyer in constructing a complete moral practice of law is infinite. These lawyers can work at improving the legal system by taking action that affects the system state- wide, county-wide, city-wide, or in their own office. If they believe the reporting system is ineffective or undesirable, they can work at devising a plan that replaces or improves the Canon 1 reporting rule. They can participate in continuing legal education programs if they believe such educational efforts contribute to the competency of lawyers. They can work for tougher bar admission standards if they think that will help insure that parties receive competent and zealous lawyers. They can set up a peer review system or a mandatory co-counseling system in their own law office if they think that will contribute to better lawyering within the legal system. For another suggestion, consider Ethical Consideration 8-2:

Rules of law are deficient if they are not just, understandable, and responsive to the needs of society. If a lawyer believes that the existence or absence of a rule of law, substantive or procedural, causes or contributes to an unjust result he [or she] should endeavor by lawful means to obtain appropriate changes in the law.''

It is the moral duty of a zealous representation lawyer to push a law to the limits for a client, regardless of the lawyer's personal belief in the morality of the results the law allows. However, that same lawyer can and should, if he or she is to have a complete moral philosophy for practice, devote efforts to changing laws that result in unjust or immoral resolutions in the legal system. The zealous lawyer can thus fulfill the first part of his or her moral duty, zealously representing the client,

41. MODEL CODEOF PROF. RESP. EC 8-2 (1983). The journal of the Legal Profession and deal with the second part, taking action that results in eliminating the moral compromise which would have occurred had the unjust law been left for another zealous lawyer to use. A complete moral philosophy of practice requires that the lawyer not stop short of his or her moral duty. Once the lawyer has adopted a morality for practice that requires for its success that the legal system operate as vigorously and competently as the lawyer, the lawyer needs to take action towards establishing the efficient operation needed for morality to be achieved. A system is only as moral as each of its parts. Furthermore, if one of those parts is a lawyer who strives to be moral, that lawyer will inevitably feel or sense the moral compromises of the system and be frustrated by them. To reduce the stress that is caused by the compromises and boundary setting, the zealous lawyer must address the rest of the system's morality. he story is not that different for the integrity lawyer. The underlying premise of the integrity lawyer's theory of morality is the personal truth and integrity of the lawyer. The integrity lawyer relies upon his or her personal moral standards for judging the truthfulness or integrity of the client, the means of representation and the ultimate goal of the client. Moral compromise and uncertainty occur in two primary ways. First, similar to the zealous representation situation, when the rest of the system is not on the same moral wavelength as the integrity lawyer, truth and integrity may not achieve justice and morality. As is obvious from this discussion, some moral lawyers are not integrity lawyers; further, not all integrity lawyers will agree on what truth and integrity requires; finally, some lawyers are not moral at all! Thus, the opposing lawyer will not always be of the same moral persuasion as the integrity lawyer, and the moral result anticipated by the truth and integrity moral theory will not always occur. While the integrity lawyer is being careful to be up front and honest, the opposing attorney may be using every advantage, including the advantage of facing an integrity lawyer. This will not result in justice and morality. Even if the opposing attorney is operating by the same standards, the rest of the legal system must cooperate. Integrity lawyers and integrity judges may not be sufficient to overcome an unjust and immoral law. Or it may be the client who is the stumbling block. The client, incorrectly concluding that truthful disclosure would do the client harm, may be dissuaded from full disclosure to an integrity lawyer; the result may be unjust and immoral. Because the rest of the legal system is not always cooperating, it is certain that morality will occasionally be sacri- ficed, instead of achieved, by a truth and integrity practice. The Moral Practice Of Law

The second major area of compromise and uncertainty occurs when the integrity lawyer makes a mistake in moral judgment or draws the moral boundary too narrowly in the balance, or at least thinks he or she may have done so. Even assuming all is right with the world, and that the system of justice is full to the brim with persons and laws striv- ing for truth and integrity, lawyers and lawmakers still make mistakes in judgments. Because the integrity lawyers will not always be right in their own moral judgment concerning the client, the goal or the means of achieving the goal, a moral client or a moral cause may suffer. And the integrity lawyer knows or senses this. The lawyer recognizes that there are bound to be some clients who are denied their moral due because the integrity lawyer, according to his or her own standards, made a mistake in drawing a boundary in the representation of that client, or because the system was not functioning to produce justice and morality as a result of truth and integrity. Had the client gone to a zealous representation lawyer, or an integrity lawyer further up the spectrum, the result might have been different. It may be because another lawyer would have analyzed the situation differently; it may be because the other lawyer would have decided "to hell with moral means" and done what was necessary for the moral client with the moral cause to win. Either way, the lawyer is left seeing the moral compromise which occurred as a result of truth and integrity, or doubting his or her conclusions concerning truth and integrity and justice and morality. While the compromises of zealous representation tend to deny society a moral system of justice, the compromises of truth and integrity tend to deny the individual client moral justice. Because some of the moral compromise and uncertainties are a result of the rest of the legal system not being in line with the standards of the integrity lawyer, the lawyer can partially address these problems by following the mandate of the standards of professional responsibility to improve the legal system. Consistent with the premise of their moral theory, the integrity lawyers should participate in activities that raise the level of truth and integrity in the practice of law and in the laws themselves. However, the integrity lawyer must also deal with the specific moral compromise that may be dealt to the client when the lawyer's moral judgment is wrong (which inevitably it will sometimes be), or when the lawyer does everything as well as it can be done, but the rest of the system has failed to cooperate fully (as it inevitably sometimes will). The reason may vary. It may be that the client did not com- mit perjury, that the client's cause was just, or that the means neces- 70 The journal of the Legal Profession sary for the client to get what he or she deserved was not immoral. It may be that the client and the cause were just and moral, but the means of obtaining the client's goal was not. Whatever the cause, it is the individual client who suffers from the resulting compromise. Perhaps someday there will be a set of certain professional standards (which all lawyers will agree to) that will lead to justice and morality with little moral compromise. In the meantime (which is as far down the road as I can see) we must accept that we have a profession that recognizes both zealousness and integrity as a moral means of practice, and a public that has good reason to assume either method of practice from the lawyer employed for representation. The possibility of a client expecting to get zealous representation from a lawyer, and instead, getting truth and integrity, requires addressing. Thus, to successfully and morally implement his or her moral theory for the practice of law, the integrity lawyer must assume the additional moral duty of disclosing to the client that the lawyer practices according to a moral theory of truth and integrity. Furthermore, the lawyer should let the client know what the lawyer's notion of truth and integrity is. Quite simply, the immediate best interest of the client is not the moral measurement of the integrity lawyer. In effect, what the lawyer creates with the implementation of the truth and integrity model of practice is an interest that potentially conflicts with the best interest of the lawyer's client. Because integrity lawyers endorse truth and integrity as the pathway to justice and morality, the necessary next step in implementing their theory of morality, disclosure of the conflict to the client, should come easily. And, for the lawyer who needs the reassurance and authority of professional standards, the lawyer need look no further than Canon 5 of the Model Code, which incorporates a high standard of integrity in its conflict of interest analysis. Canon 5 provides that when a lawyer has an interest in something that competes with the best interests of his or her client, whether it is a financial, business, property or personal interest, or the interests of another client of the lawyer, the lawyer must refuse or cease further representation unless he or she can "adequately" represent the client (in spite of the com- peting interest) and the client consents to the lawyer's representation with full knowledge of the conflict.42 The first step in Canon 5 is understanding the conflict. In this case, the lawyer must recognize the inevitable compromise and uncertainty in his or her moral theory. The frustration and moral stress of attempt-

42. MODEL CODEOF PROF. RESP. DR 5-101(A), 5-105(A)-(C)(1980). The Moral Practice Of Law 7 1 ing to achieve a moral practice should easily lead to this recognition. The second step is making the determination that the lawyer can adequately represent the client in spite of the conflict. If not, the lawyer should withdraw or refuse to accept the client. Integrity lawyers have basically decided this issue by choosing to implement the moral theory of truth and integrity into their practice of law. As noted earlier, each end of the morality spectrum has its outside limitations. Whichever cases and clients the integrity lawyer chooses to take and continues to represent are presumably those cases for which the lawyer has determined he or she can provide adequate representation and still maintain his or her boundaries of truth and integrity. This does not mean the representation of the clients is not affected. It simply means that, while the client's interest is affected - or at least potentially affected - by a conflict of interest, the lawyer is still capable of providing adequate representation. As already discussed, there are doubts and uncertainties in these decisions, but drawing the boundary between truth and integrity and inadequate representation is necessary to stay on the spectrum of moral practice. Just as (moral) zealous representation lawyers have a limit beyond which they will not go in the name of zealous representation, so too do integrity lawyers recognize such' a limit; their boundary is inadequate representation. If, to be true to their guidelines for truth and integrity, it would be necessary to go beyond that boundary, then the moral integrity lawyer will refuse or withdraw from the case. For an obvious and simple example, consider that lawyers allow their clients to plead not guilty and put the government to its burden of proof even when they know the client is guilty. Certainly integrity lawyers do not let truth and integrity demand they tell the court that their client really did it! And if, by chance, they are that dedicated to truth as the pathway to justice and morality, and still want to remain on the spectrum of moral lawyering, they must decline the case. I have little doubt that most integrity lawyers are at least vaguely conscious of the thought process they undertake to get to this point in the implementation of their moral theory for practice. Classifying this process as a conflict of interest analysis, however, should reduce their frustration and moral stress by letting them see that they are not ignoring the shortcomings of their chosen moral course, and, in fact, are actively taking it into consideration when setting their boundaries. If the compromise to the client is too much, the lawyer refuses the case. The final step under Canon 5, which allows a lawyer to represent or continue to represent a client when the lawyer has a real or poten- 72 The Journal of the Legal Profession tial conflict of interest, is that which requires the lawyer to make full disclosure to the client of the conflict and to obtain the informed con- sent for continued representation. Classifying this step as an integral part of their moral theory should relieve integrity lawyers of much of the stress that usually comes with their chosen theory of practice. While an integrity lawyer need not read a "truth and integrity statement of rights" to the client, the lawyer can and should let the client know what kind of morality is practiced in the office. This is important if the integrity lawyer wishes to have a completed theory for his or her practice of law; it is also important for reducing the stress that results from the compromises of an integrity practice. Because it is the individual client who feels the compromises the integrity practice demands, it only makes sense that the client should have the right to decide if that is the sort of representation he or she wants. Additionally, it should take a big burden off the integrity lawyer's shoulders to know that the client, who will potentially be affected, has consented to the compromise. As to what sort of disclosure is necessary, this is a matter that can safely be answered by any lawyer who is conscientious and moral enough to get to this point of moral practice. But, to provide some suggestion as to what might be appropriate, the client can be told that the lawyer does not use deception in the practice of law, nor will the lawyer tolerate the client doing so. The lawyer should let the client know that if the facts of the case develop such that the client's interests are compromised more than is wanted, the client is free, as always, to obtain new counsel, but that changing lawyers in the middle of a case may cause more harm than it prevents. Furthermore, replacing the integrity lawyer may not remedy all situations. If, for example, the integrity lawyer has already fallen under a moral obligation - according to that lawyer's moral philosophy- to reveal a fraud or perjury by the client, withdrawal from the case may not relieve the lawyer from his or her moral obligation, and thus may not relieve the client of the compromise. It may be that truth and integrity lawyers will lose clients; I doubt very much if the loss will be significant, and hopefully the gain in comfort will be worth the loss. It may be that the client who leaves will go down the street to a zealous representation lawyer and thus the morality and justice of the legal system - as the integrity lawyer sees it - are not increased by the actions of the integrity lawyer. On the other hand, the integrity lawyer is addressing this problem too, by taking actions to increase in general the truth and integrity of the system. The integrity The Moral Practice Of Law 73 lawyer can feel comfort in knowing that all bases of compromise are covered. The major stress for the integrity lawyer comes from knowing that the lawyer's morality may shortchange a client, either from what the client's moral due is, or at least from what the client could have obtained if represented by a zealous representation lawyer. The Canon 5 disclosure practice deals with this stress. Moral lawyers must do more than recognize and stay within the limits of their chosen moral philosophy. They must also recognize the shortcomings of their theory when implemented and take action to address those shortcomings, thus creating the final tier needed for a complete moral practice. Whether a lawyer is committed to the truth and integrity end of the spectrum or the zealous representation end, the lawyer can look to traditional standards and rules of professional responsibility for guidance and support for this final step. The seemingly benign ethical mandate to improve the legal system and to make legal counsel available for all fits nicely into the zealous representation theory. The applicability of the standard analysis for conflict of interest resolution to a truth and integrity practice is so easy it is all but invisible. But these long-standing directives of the legal profession take on new significance when viewed as the final building block of a moral theory for practicing law. The standards of our profession should be seen as providing more than the bottom line for both types of moral lawyers, resulting in a large grey mass caught between conflicting precepts. They provide and should be recognized as providing the means of addressing the inevitable compromise of any moral theory for practicing law.

Feeling as though I have exhausted the obvious with a barely per- ceptible gain, I cannot resist the compulsion to register a humble pro- test. I know I have not resolved the questions of validity or superiority of role morality or personal morality for one's practice of law. These are not questions I wish to answer. I know I have not resolved the problems of a moral zealous lawyer meeting a moral integrity lawyer-for society or for either of the lawyers! That is not a question I feel capable of answering. I have, however, offered a response to the lawyer who has chosen a spot on the spectrum of moral practice, but feels the frustration of his or her efforts to achieve justice and morality by that method. I believe that there is an answer for the stress of moral practice for both ends of the spectrum, and that it has been in the lawyer's hands all along. It simply needs to be recognized and labeled The Journal of the Legal Profession as an answer in order for its healing powers to take effect. Neither moral system need be proved superior, but lawyers, to be moral, must choose the system they think is best and follow that theory. Most lawyers who have consciously chosen a moral theory for their practice, or who consistently but instinctively practice at one end of the spectrum or the other are likely to engage in all of the activities and conflict-resolving mentioned. Truth and integrity lawyers, by their manner and practice, inform the community and their clients of their guidelines for practice. Most lawyers participate in community service activities, and zealous representation lawyers, who fervently believe in the adversarial system, probably end up choosing activities that contribute to the morality of that system. However, in talking with lawyers about the moral stress they experience in practicing law, I believe that there is a big difference between doing these activities because it is a good thing, a sensible thing, an ABA regulated thing, or even a moral thing, and performing these activities as a conscious and integral part of their chosen method of moral practice. Recognizing the connection between their theory of practice and the activities they choose to per- form as a "good member of the bar," or recognizing their words, actions and manner as part of a conflict of interest resolution provides the final link necessary for their theory of moral practice to be complete. Being able to say to oneself, "I know my practice results in moral compromises here and there and I know I'm not always confident about the decisions I must make as to the limits and expanses of my moral guidelines, but I have chosen what I believe to be the most moral way to practice law, and I have taken action to do what can be done about the compromises that are inevitable with my theory," is a big step in moral practice. It is plain and it is simple. But perhaps it will help moral lawyers sleep better at night. And that will give them more energy the next day to work for a moral and just system of law. While the system will always have its injustices and immoralities, it is bound to get better with so many moral lawyers working so hard.