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 lawyer- ing-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 phi- losophies 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 rec- ognizes 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 gen- erally 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 ig- noring 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 tradi- tional 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 assump- tion that the lawyer will, and should, recognize that what is legal representation is not always moral representation.

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