See discussions, stats, and author profiles for this publication at: https://www.researchgate.net/publication/264839520 Moral Responsibility in Professional Ethics ARTICLE · JANUARY 1980 CITATIONS READS 11 873 1 AUTHOR: Gerald Postema University of North Carolina at Cha… 52 PUBLICATIONS 148 CITATIONS SEE PROFILE Available from: Gerald Postema Retrieved on: 12 January 2016 MORAL RESPONSIBILITY IN PROFESSIONAL ETHICS 1 GERALD J. POSTEMA* Professor Postema argues for a new conception of professional ethics in wlhich lawyers must acknowledge personal responsibilityfor the consequences of their pro- fessional conduct. He suggests that a new code of professional responsibility is re- quired because the current Code allows lawyers to ignore the social and moral costs of their actions, and do as professionals what they would not do as indiciduals. Lawyers, like other professionals, acknowledge gravely that they shoulder special responsibilities, and believe that they should con- form to "higher" ethical standards than laypersons.2 Yet, lawyers also claim special warrant for engaging in some activities which, were they performed by others, would be likely to draw moral censure.3 Skepti- cal of this claim to special license, Macaulav asked "'[w]hether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what, without these appendages, he would think it wicked and infamous to do for an empire."14 This conflict may trouble the layperson, but for the lawyer who must come to grips with his professional responsibilities it is especially problematic. Montaigne offered one solution, the complete separation of per- sonal and professional lives. "There's no reason why a lawyer ... should not recognize the knavery that is part of his vocation," he insisted. "An honest man is not responsible for the vices or the stupidity of his calling." 5 The key to maintaining both professional *Associate Professor of Philosophy, University of North Carolina at Chapel Hill. A.B., 1970, Calvin College; A.M., 1973, Ph.D., 1976, Cornell University. 1 The concerns discussed in this essay were first suggested to me in discussions with sev- eral participants at the Institute on Law and Ethics sponsored by the Council for Philosophic Studies during the summer of 1977. Larry Alexander, Bernard Williams, and Gary Bellow were especially helpful. An earlier version of this essay w%-aswritten as a background paper for the Philosophical Perspectives on Public Policy Project of the Center for Philosophy and Public Policy, the University of Maryland, College Park. 2 "Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship %vithand func- tion in our legal system. A consequent obligation of lawsyers is to maintain the highest standards of ethical conduct." ABA, Model Code of Professional Responsibility, Preamble, at 1 (1980) [hereinafter Code] (footnote omitted). 3 For examples, see text accompanying notes 11-15 infra. 4 T. Macaulay, Lord Bacon, in 2 Critical and Historical Essays 121. 152 (F. Montague ed. 1903). Quoted in Curtis, The Ethics of Advocacy, 4 Stan. L. Rev. 3. 20 (1951). 63 HeinOnline -- 55 N.Y.U. L. Rev. 63 1980 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol, 55:63 and personal integrity in the face of professionally required "knavery" was, Montaigne thought, scrupulously to keep the two personalities apart: "I have been able to concern myself with public affairs without moving the length of my nail from myself .... The mayor and Montaigne have always been two people, clearly separated."; Montaigne's solution is tempting. Maintaining a hermetically sealed professional personality promises to minimize internal con- flicts, to shift responsibility for professional "knavery" to broader in- stitutional shoulders, and to enable a person to act consistently within each role he assumes. But for this strategy to succeed, the underlying values and concerns of important professional roles, and the charac- teristic activities they require, must themselves be easily segregated and compartmentalized. However, since there is good reason to doubt they can be easily segregated, Montaigne's strategy risks a dangerous simplification of moral reality. Furthermore, in com- partmentalizing moral responses one blocks the cross-fertilization of moral experience necessary for personal and professional growth. This Article considers whether it is possible to follow Montaigne's sugges- tion and to separate one's private and professional personalities with- out jeopardizing one's ability to engage in professional activities in a morally and professionally responsible way. The central issue I ad- dress is not whether there is sufficient justification for a distinct pro- fessional code for lawyers, but whether, given the need for such a code, it is possible to preserve one's sense of responsibility. I argue that such preservation is not possible when a professional must adopt Montaigne's strategy in order to function well in his professional role. I contend that a sense of responsibility and sound practical judgment depend not only on the quality of one's professional training, but also on one's ability to draw on the resources of a broader moral experi- ence. This, in turn, requires that one seek to achieve a fully inte- grated moral personality. Because this is not possible under the pres- ent conception of the lawyer's role, as exemplified by the Code of Professional Responsibility, that conception must be abandoned, to be replaced by a conception that better allows the lawyer to bring his full moral sensibilities to play in his professional role. I MORAL DISTANCE AND THE PERSPECTIVE OF THE RESPONSIBLE PERSON It is not uncommon for lawyers to face dilemmas caused by the clash of important principles implicit within the professional code. 6 Id. HeinOnline -- 55 N.Y.U. L. Rev. 64 1980 Imaged with the Permission of N.Y.U. Law Review April 1980] MORAL RESPONSIBILITY A good example of this is the problem posed for a criminal defense lawyer by a client who announces a firm intention to perjure himself at trial. 7 Here, the deeply embedded principle of confidentiality 8 conflicts sharply with the equally important duty of candor before the court. 9 But this is not the sort of clash Montaigne had in mind. Indeed, similar moral quandaries and conflicts are common outside of pro- fessional contexts. Rather, Montaigne draws attention to the conflict between principles of professional ethics and concerns of private mor- ality. The requirements of professional ethics can sometimes move some distance from the concerns of private or ordinary morality, a phenomenon we might call moral distance. The range of practical considerations which alone are relevant to a proper ethical decision in a professional role is the moral universe of that role.10 For many professional roles the moral universe of the role is considerably nar- rower than that of ordinary morality, and, when the two overlap, they often assign different weights to the same set of considerations. This often gives rise to conflicts, as the following cases illustrate. The first example involves the duty of the criminal defense attor- ney to maintain client confidentiality. In the course of preparing a defense for a criminal trial in Lake Pleasant, New York, the client told his attorneys that he was responsible for three other murders unrelated to the pending case. The lawyers visited the location where one of the bodies had been hidden and confirmed the client's story. Nevertheless, .they maintained silence for six months and refrained from disclosing the whereabouts of the body to the authorities or to the family of one of the victims, which had sought their help in locat- ing the missing victim." The duty of confidentiality, which here pro- tects the client against self-incrimination, clearly forbade disclosure in this case,12 even though the attorneys' personal inclinations were to disclose. 7 See M. Freedman, Lawyers" Ethics in an Adversary System 27-42 (1975). 8 See Code, supra note 2, Canon 4, especially EC 4-1, EC 4-5, DR 4-101(A). DR 4-101(B). DR 4-101(C)(3). 9 See id. Canon 7, especially EC 7-27, DR 7-102(A)(4). (5). DR 7-IO2tBhlI). Also see ABA Project on Standards Relating to the Prosecution Function and the Defense Function § 7.7 (Approved Draft 1971). 1o I borrow this term from Wasserstrom, Lawyers as Professionals: Some Moral Issues. 5 Human Rights 1, 2-8 (1975). 11 People v. Beige, 83 Misc. 2d 186, 372 N.Y.S.2d 798 (Onondaga County Ct.), afd mem., 50 A.D.2d 1088, 376 N.Y.S.2d 771 (1975), affd per curiam, 41 N.Y.2d 60. 359 N.E.2d 377, 390 N.Y.S.2d 867 (1976). 12 See Code, supra note 2, EC 4-1, EC 4-4. Also see Callan & David, Professional Respon- sibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary Sys- tern, 29 Rutgers L. Rev. 332 (1976). The prosecution argued that failure to report the deaths amounted to a criminal violation of the New York State Public Health Law. 83 Misc. 2d at 187, HeinOnline -- 55 N.Y.U. L. Rev. 65 1980 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 55:63 The second example, illustrated by the case of Zabella v. Pakel, 13 concerns the lawyer's use of legally available defenses to cir- cumvent enforcement of his client's moral obligations. At the time of suit, defendant Pakel was president and manager of the Chicago Sav- ings and Loan Association. In earlier and less fortunate cir- cumstances, he had borrowed heavily from his employee, Zabella.