This is a guest article from Professor Daniel Kleinberger. Prof. Kleinberger is the director of the Mitchell Fellows Program at the William Mitchell College of Law. He was the reporter for the MSBA Business Law Section Task Force that developed the Professional Firms Act and the principal drafter of the act.
Four hundred years ago Shakespeare had a character in Henry VI give this prescription for a happy society: “The first thing we do, let’s kill all the lawyers.”1 Today, many Americans would agree.2 It is not merely that lawyers occasionally steal from widows and orphans,3 or that key figures in scandals ranging from Watergate4 to Irangate5 to Meesegate6 have been attorneys. The problem is general. The public no longer views lawyers as ethically dependable.7
Although lawyers are naturally less critical of themselves, the profession knows it has a major problem.8 Thousands of ethics complaints are filed against lawyers each year, and some within the profession talk of a crisis in lawyer discipline.9
It is not that the profession has not tried to regulate itself. Every lawyer practicing in the United States is subject to at least one code of professional ethics.10 Every law school accredited by the American Bar Association must require its students to take “instruction in the duties and responsibilities of the legal profession.”11
Unfortunately, neither codes of professional ethics nor traditional modes of law school teaching do much to produce ethical lawyers. There are two impediments to a more successful inculcation of ethics. First, both the profession and its schools have a perspective on lawyer morality that alienates practitioners from a sense of personal responsibility. Second, while less amoral perspectives exist, few lawyers or law professors proselytize for them.
The profession’s current approach to ethics rests on certain conventional notions about the moral content of the adversary system.12 In the service of that system, a lawyer is ethically obliged to provide zealous representation to his or her client.13 Other attorneys are to represent with equal zeal clients with conflicting interests. The resulting clash of champions enables a neutral third party to find the facts and to declare the proper winner. The system sometimes fails,14 but on balance it works better than any alternative. On balance, it is good for society.15
Under the conventional approach to lawyering, a lawyer’s morality consists of competent and zealous efforts within the socially beneficial system.16 The moral character of the lawyer’s work derives not from the results of any single representation, but rather from the net benefits of the system. Since the services of the attorney, the “for hire” champion,17 are essential to the successful operation of the system, the attorney’s efforts are moral regardless of the moral standing of the clients.18 The lawyer has no personal moral responsibility for any particular outcome.19 Lawyers are legal technicians, and their morality consists of being good at what they do.
The conventional view thus separates its adherents from the individualized, practical results they most directly produce. This separation has an untoward effect in the day-to-day world of lawyering. When lawyers are relieved of the need to think about the effects of their conduct, their sensitivity to ethical issues is diminished. Since by definition good lawyering is ethical, there is little occasion even to think about ethical issues.20
Such desensitization is dangerous, because doing “right”–however one defines that idea–is frequently not the convenient path. As any lawyer with a few years of experience can testify, lawyers who do wrong frequently do very well.21 Moreover, doing “right” can be costly in material terms.22
Since doing “right” does, at least occasionally, involve material costs, ethical conduct–in a profession or elsewhere–does not occur without conscious effort. Behaving ethically requires courage, at least on occasion. But in order for the issue of courage to even arise, the lawyer must realize that what he or she does in day-to-day practice matters morally. The lawyer must understand that what she does counts, that her actions are the efforts of a morally significant being.
The conventional ideology does not logically preclude such understanding, but it does psychologically undermine it.23 According to the conventional view, the legal system benefits society. From this success comes the system’s moral defense. Within this defense are sheltered the system’s chief technicians, the lawyers. The moral defensibility of the system removes from its practitioners the need to think about moral questions. As one commentator stated, “the lawyers of America give themselves a ‘free pass out of the community’s moral discussions.”DD”24 In a world of expediency, maintaining an ethical character requires, at a minimum, a commitment to doing right for right’s sake. That commitment, in turn, requires a focus on oneself as a moral actor and a sense that what one does as an individual is morally important.25 It is precisely that sense and that focus that conventional legal amorality destroys.26
By taking the lawyer’s focus away from the ethical content of individual choice, the conventional moral detachment27 undermines any meaningful ethos. Promulgating detailed codes of ethics cannot reverse the damage. Ethics are ultimately a matter of personal virtue, and few lawyers view the Rules of Professional Conduct as a code of professional honor.28 Instead, the rules are seen primarily as a set of malum prohibitum commands to be parsed, analyzed, interpreted, and distinguished–just like any set of regulations applicable to any other trade or business.29 Codes of ethics may supply the rules of the lawyering game, but they do not inspire moral sensitivity or moral courage.
Besides its “de-moralizing” effect, the conventional view of lawyer ethics is also open to logical attack. Lawyers commonly argue that they are not personally responsible for the results of their representation because: (1) they are merely providing technical skills as part of a general system of decision making;30 (2) without the skills of such technical experts, the principals could not operate effectively within the system;31 (3) the zealous exercise of lawyering skills allows a neutral, third-party decision maker to reach just decisions most of the time;32 (4) it is the third-party decision maker, not the technical experts, who actually makes the decision;33 and (5) the system, on the whole, benefits society.34
For these reasons, according to the conventional model, the client’s moral coloring does not rub off on the lawyer.35 For example, there is nothing remarkable about a lawyer representing a polluter on Monday and an environmental group on Wednesday. Assuming that in each instance the lawyer abides by applicable rules of professional conduct,36 both representations have the same neutral moral character.
The weakness of this approach can be shown by analogy. Consider the nature and function of an expert in political campaigning, who understands the techniques of raising funds, finding and organizing volunteers, polling and persuading primary voters, and so forth. In seeking major office nowadays, the political candidate needs campaign expertise just as much as any client needs legal advice.37 The function of the campaign expert, like that of the lawyer, is to provide technical assistance as part of a socially approved process of decision making.
The campaign expert’s efforts thus parallel those of the lawyer. Lawyers explicate their principals’ position to the legal decision makers. Campaign professionals enable their principals to bring their message to the political decision makers. Just as the lawyer can disclaim responsibility for the ultimate decision, so too can the campaign expert. It is the voters, not the strategists, the fundraisers, or the speechwriters, who ultimately make the electoral choice.38
Thus, the campaign professional can use the lawyer’s rationale to claim that the interests advanced by his candidate do not rub off on him.39 Using the logic of the lawyer’s conventional view, the campaign operative can argue that there is no moral difference between running the presidential campaign of George Wallace and the mayoral campaign of Charles Evers.40
In our culture, however, such a claim is absurd. And the absurdity applies equally to the campaign expert and to the lawyer. Contrary to the conventional wisdom, lawyers, like political operatives, must take responsibility for the results they promote.41
Proponents of the conventional viewpoint will challenge this radical notion with the “servant of civil liberties” argument: if we allow the character of the client to reflect on the attorney, then no one will represent unpopular clients and unpopular causes.42 In fact, however, unpopular people and positions have found zealous legal advocates throughout United States history, and the availability of representation has seldom depended on a pretense of amorality. From John Adams and the trial of the British soldiers accused of the Boston Massacre, to Clarence Darrow with his defenses of revolutionaries and child murderers, to the legion of legal aid attorneys who labor for a cause the President wishes to abolish, legal representation has frequently reflected an intensity of personal commitment.43
Moreover, the “civil liberties” thesis mistakenly assumes a direct correlation between the moral stature of the client and that of the attorney. The relationship is not that simple. Taking moral responsibility does not mean that the attorney automatically assumes the moral coloring of his or her client. A public defender may defend someone she knows is guilty of child abuse because the attorney believes, as a matter of personal moral conviction, that putting the state to its proof in parental rights termination cases is important enough to justify risking the lives of abused children. The attorney does not espouse the abuse. She chooses to provide representation in spite of it. Such a personal, gut-wrenching decision is hardly an exercise in value-neutral moral detachment.44
Requiring personal responsibility on the part of lawyers does not mean that net social benefits never outweigh particular harms or that the representation of any particular client is immoral. Rather, the point is that the lawyer’s representation of a client reflects a moral choice, and that each such choice must take into account the particular consequences that may flow from the lawyer’s efforts.45
Consider, for example, an attorney for the American Civil Liberties Union who represents the Nazis in Skokie.46 Perhaps allowing the Nazis to march through a Chicago suburb populated with concentration camp survivors is a proper price to pay for the protection of freedom of speech and assembly, but a lawyer who chooses to represent the Nazis is making a personal and moral choice to trade off the protection of civil liberties against the agony of Holocaust survivors. It is not enough to disclaim personal responsibility by saying, “‘It’s a dirty job, but someone has to do it.” A lawyer’s job is to get things done, and each lawyer is morally responsible for the dirty jobs he or she chooses to do.47
Can we find–or fashion–a perspective on the lawyer’s role that would support an ethos of personal responsibility? I think so, but finding that perspective requires looking beyond the scope of ethical codes and into the realm of political philosophy.
Since law is a characteristic of civilized society, an inquiry into the purpose of civilized society may help to provide a proper moral perspective for lawyer morality. To the seventeenth century English philosopher Thomas Hobbes, the purpose of civilized society was brutally clear. The natural human condition–the uncivilized condition–“is that which is called war.”48 Life outside civil society is “nasty, brutish and short”49 and is characterized by “the war of every one against every one.”50 Humans create civil society to put an end to this war and to ensure, as best they can, security against violence.51 Thus, the first objective of any civilized society is to allow its members to live in peace.
To be sure, Hobbes’ pessimistic views about human nature reflect the tumultuous experience of the English Civil War. However, anyone who doubts the continuing value of Hobbes’ insights need only look to Northern Ireland and Beirut for instruction.
As those ongoing tragedies illustrate, providing for peace requires more than providing protection against foreign marauders. A society must provide as well for “the domestic tranquility.” Doing so involves more than just punishing those who commit malum in se offenses. The society must also provide ways for resolving ordinary disputes among its members. Providing safety from foreign invasion is all well and good, but it is equally important that property-line disputes not be settled by back-alley muggings.52
Modern societies address the “domestic tranquility” problem through the apparatus of the state, which asserts a monopoly over the legitimate use of force within its territory.53 The state prohibits almost all forms of violent self-help, offering its citizens instead the protection of law.54
How well a society’s system of law works depends, in large part, on the hearts and minds of the system’s handmaidens. Do the lawyers who operate the legal system see themselves as just doing another job, or do they understand that their job involves a calling that partakes of the most fundamental aspect of civilization?
The latter description is not hyperbole. What lawyers do for a living touches on society’s fundamental reason to exist. The lawyer’s impact is more apparent when he or she defends a dissident’s right to speak or protects a widow and orphan from a rapacious creditor, but the connection exists as well in the routine drafting of a conveyance. The law of conveyancing represents the noble, civilized alternative to the law of the jungle.
What helps distinguish our species from other animals is our ability to control, for better or worse, our form of social organization. Law is the system we have developed to reorganize, to separate ourselves from the all-too-human condition of the war of all against each. Nothing is more fundamental to every member of our society than how well this fence against our own bestiality works. We should not delegate the task of tending this fence to mere technocrats–to rule followers without moral sensibilities.55
This alternative view on the moral nature of lawyering differs sharply from the conventional, “neutral technocrat” approach. The alternative view focuses attention on the moral significance of the individual lawyer and supports, rather than undermines, a sense of personal responsibility. But will this view find favor with practitioners? Should law schools make it part of their standard curriculum?
The practicing bar will probably have little appetite for the alternative viewpoint. The “neutral technocrat” approach is too good for business. It stifles the inclination toward moral self-doubt and lets lawyers concentrate on the business of representing clients.
The conventional ideology of lawyering thus performs for lawyers the same conscience-numbing function that the theory of the free market performs for business people. When a factory closes and hundreds of families lose their livelihood, an employer can find comfort in the conviction that the economy is stronger and people are generally better off when the invisible hand of the market is free to work its will.56 Like the lawyer, the business person is only a technocrat, serving a societywide and socially approved system of decision making.57
It is especially hard for today’s lawyers to abandon an ideology that promotes commercial success. Perhaps the workings of the profession have always been fundamentally mercantile. Yet, prior to the Supreme Court’s 1977 decision enshrining the constitutional right of lawyers to advertise,58 lawyers at least made a pretense of having mores more gracious than those of the marketplace.59 Now, however, what Sir Dudley North once called the “cuckoo of acquisitiveness”60 is fully loose.61 Lawyers advertise with a vengeance.62 Law firms of all sizes develop strategies for marketing “the legal product.”63 Large firms analyze the recruiting of new associates in terms of the supply and demand of top law school graduates.64 The mentality of the market has come to the profession of law,65 and the conventional approach to lawyer morality is too convenient to easily abandon.66
For different but equally powerful reasons, law schools also are unlikely to champion an ethos of individual responsibility. The thrust of legal education runs counter to moral instruction. The rites of initiation at law school wash out old ways of thinking to make way for the mysterious new process of “‘thinking like a lawyer.” In its first months, legal education actually alienates students from whatever values they had when they entered school.67 This alienation increases as students become more adept in their new environment and begin to “think like a lawyer.” The good student, urged throughout law school to see all sides of each question, learns that there is no right answer.68 The hallmark of intellectual quality–and the portent of vocational success–is the ability to argue one side of a question convincingly in the morning, and then forcefully carry the other side in the afternoon. For the good student, the concept of “right” gradually loses currency and eventually withers from disuse.69
A law school with a typical curriculum has little ability to replace what it has destroyed. At its best, the traditional law school curriculum teaches reasoning. It equips students to determine facts and to dissect arguments, to analogize apparently dissimilar situations, and to distinguish apparently similar situations–in sum, to operate rationally in a world of concepts and symbols. Thinking rationally and analytically is essential to effective lawyering and may even guide moral inquiry. It can do little, however, to develop moral commitment. Character is a matter not of analysis but of faith. In the words of the German sociologist, Max Weber, who would “attempt to ‘refute scientifically’ the ethic of the Sermon on the Mount?”70
Moreover, law shools should be chary of teaching moral dogma. Advocating one personal belief system over another is not the proper role of the teacher. Said Max Weber:
To the prophet and the demagogue, it is said: “Go your ways out into the streets and speak openly to the world,” that is, speak where criticism is possible. In the lecture-room we stand opposite our audience, and it has to remain silent. I deem it irresponsible to exploit the circumstance that for the sake of their career the students have to attend a teacher’s course while there is nobody present to oppose him with criticism. The task of the teacher is to serve the students with his knowledge and . . . experience and not to imprint upon them his personal political views.71
Law students are seldom as silent as the students Weber contemplated, nor would a good instructor wish them to be. Even in the law school classroom, however, the professor exercises great power over the student. It would therefore be unfair to turn the lectern into a pulpit.
Nonetheless, it is possible and necessary for each law student to understand that the decisions lawyers make have individual moral content, and that each lawyer must bear personal responsibility for the results he or she helps to produce.
Exhortation from the front of the classroom is not the way to foster such understanding. It is nearly impossible to admonish or orate people into a sense of morality without simultaneously urging the tenets of some particular moral view. Moreover, the efficacy of exhortation depends largely on the charisma and credibility of the exhorter, and not all law professors have, or wish to have, the “right stuff.” Also important is the audience’s receptiveness to exhortation. The contemporary law school is an environment purposely hostile to faith, intuition and feeling.72
Nonetheless, an avenue of moral education exists within the law school environment, an avenue well within ordinary professorial competence, and totally consistent with the law school’s commitment to analytic thinking. The law school can begin to awaken the moral sensibilities of its students by expanding the domain of critical analysis to include the mores of the legal profession.73 To combat the amorality that grows from the doctrine that lawyers’ work is inherently and presumptively moral, the law school should expose that doctrine to the rigorous, critical analysis that is the hallmark of law school education.74
Using legal analysis to scrutinize the legal profession will serve at least four objectives. It will (1) help students see more clearly the practical consequences that flow from particular legal rules and the moral issues implicit in those rules; (2) help students recognize that these practical consequences are viewed differently from various moral perspectives; (3) stimulate students to develop their own thinking about the moral facets of legal problems; and (4) encourage students to view the standards and practices of their future profession as proper objects of scrutiny and critique.75
Of the four objectives, the last two are probably the most difficult to achieve. Law students are preparing to wield power, and rules of law are the instruments of that power.76 Considering the moral dimensions of those rules can be uncomfortable, especially since the “is” of the rule and the “‘ought” of the real world so often diverge.77 Criticizing the profession one is working so hard to enter is an inevitably unpalatable task.78
Teachers should therefore expect resistance when asking students to think in moral terms. But tools are at hand to dissolve that resistance. Law schools need only turn loose on the profession’s preconceptions the very intellectual equipment that today is reserved for interpreting cases and statutes. Let the skills of fact determination, analysis, analogy, and distinction focus for a time on the profession itself,79 and on what a career in the law portends for the careerist’s personal and spiritual life.80
The same course of study is available for practicing lawyers, if they are willing to teach themselves. Lawyers can use their professional talents to view their own work in the same critical and evaluative way that their education and profession have taught them to view the work of others.
While such “legal” analysis cannot itself yield any “right” answers, it can edify nonetheless. The foundation for any ethos of personal responsibility is the understanding that one’s own actions matter. Since conventional legal wisdom implies the contrary, the first step toward establishing that foundational focus on self is to learn how to critique the conventions. “The primary task of a useful teacher,” Weber wrote,
is to teach his students to recognize “inconvenient” facts–I mean facts that are inconvenient for their party opinions . . . . [I]f we are competent in our pursuit . . . we can force the individual, or at least we can help him, to give himself an account of the ultimate meaning of his own conduct.81
For the lawyer and for the legal profession such an account would be a first step toward an ethos of personal responsibility.
1. W. SHAKESPEARE, Henry VI, Part II, act 4, sc. 2, lines 76-77 (Dick, speaking to Cade). But see Walters v. National Ass’n of Radiation Survivors, 473 U.S. 305, 371 n.24 (1985) (Stevens, J., dissenting)(Shakespeare is in fact noting that the removal of lawyers will move society toward the establishment of totalitarian government). For a discussion of the treatment of lawyers in literature, see Post, On the Popular Image of the Lawyer: Reflections in aDark Glass, 75 CALIF. L. REV. 379 (1987).
2. Dauer & Leff, Correspondence, 86 YALE L.J. 573, 577 n.22 (1977) ( “Lawyers frequently do feel guilty about what they do for a living, and the public pretty thoroughly agrees that they ought to.”).
3. See, e.g., Taylor, Lawyer Sent to Prison for Widow’s Loss, Nat’l L.J., Apr. 25, 1988, at 16, col. 3 (twenty-year prison term imposed on lawyer who stole insurance proceeds from a widow).
4. See, e.g., Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 3 (1975) (document supplied by John Dean to the Senate Select Committee on Watergate listed people involved in the coverup; Dean, struck by the large number of lawyers involved, had put an asterisk by the name of each attorney).
5. Despite the Boland Amendment, which prohibited any lethal aid to the Nicaraguan forces known as Contras, highly placed officials in the Reagan administration used an elaborate scheme to provide such aid. See generally UNITED STATES SELECT COMM. ONSECRET MILITARY ASSISTANCE TO IRAN AND THE NICARAGUAN OPPOSITION, REPORT OF THE CONGRESSIONAL COMMS. INVESTIGATING THE IRAN-CONTRA AFFAIR, H.R. REP. No. 433, 100th Cong., 1st Sess. (1987), S. REP. No. 216, 100th Cong., 1st Sess. (1987). As the story unfolded during nationally televised congressional hearings, the public heard inter alia that one protection against such schemes had failed because the attorney representing an interagency oversight committee (the Intelligence Oversight Board) had conducted his investigation in reliance “‘upon the good will of”DD” the people under investigation. Id. at 132. The public also learned of an inquiry ordered by U.S. Attorney General Edwin Meese that was carried out so ineptly that the perpetrators of the scheme had sufficient advance notice to destroy crucial documents. Id., at 964-65 (testimony of Attorney General Edwin Meese). See also Shenon, Justice Dept., First Praised, Now Draws Blame in Crisis, N.Y. Times, Dec. 14, 1986, § 1, at 20, col. 1 (Justice Department criticized for delay of the November inquiry into the Iran arms sale); Shenon, Senate Committee Tells White House to Save Iran File, N.Y. Times, Nov. 29, 1986, at 1, col. 1 (Attorney General Meese’s investigation was announced three days before files were secured, allowing Admiral Poindexter and Colonel North unlimited access to the files in the interim).
6. The last two years of service by Attorney General Edwin Meese were dominated by charges of misconduct against him. A Special Prosecutor eventually issued a report severely criticizing the Attorney General, but declining to seek an indictment. The Attorney General claimed that the failure to indict him constituted a vindication of his conduct. See Lardner, Jr., McKay Reports Four “‘Probable” Meese Offenses, Wash. Post, July 19, 1988, § A, at 1, col. 1; Marcus, McKay Files Report, Asks No Changes, Wash. Post, July 6, 1988, § A, at 1, col. 3; L.A. Daily J., July 6, 1988, at 1, col. 6.
7. See Sloviter, Perceptions of the Legal Profession, 10 W. NEW ENG. L. REV. 175, 176 (1988) (discussing opinion surveys, including one in which “the public rated funeral directors as having higher ethical standards than lawyers”); Kaplan, What America Really Thinks About Lawyers and What Lawyers Can Do About It, Nat’l L.J., Aug. 18, 1986, at S-2; Sitomer, Credibility Issues Continue to Hound the Legal Profession, Christian Sci. Monitor, Apr. 29, 1985, at 7, col. 1.
8. In its report on the 1988 Annual Meeting of the American Bar Association, the Bureau of National Affairs commented: “A number of items on the [house of delegates] agenda indicated the ABA’s growing concern that lawyering has become less of a profession and more of a big business, to the detriment of the profession’s public image.” American Bar Ass’n Annual Meeting, 57 U.S.L.W. 2094, 2095 (Aug. 16, 1988); see also Jost, What Image Do We Deserve?, 74 A.B.A. J., Nov. 1, 1988, at 47, 47-48, 50.
9. See Weber, “Still in Good Standing”–The Crisis in Attorney Discipline, 73 A.B.A. J., Nov. 1, 1987, at 58, 59-63; Rhode, Ethical Perspectives on Legal Practice, 37 STAN. L. REV. 589, 590 (1985) (“In the last decade, courts, commentators, and the organized bar have given unprecedented attention to legal ethics and etiquette.”).
10. Every state supreme court has adopted rules of ethics generally applicable to lawyers licensed to practice in that state. For a compilation of state rules of ethics and opinions, see NAT’L REP. ON LEGAL ETHICS vols. I-IV (1988). Twenty-five states and the District of Columbia have adopted some version of the American Bar Association’s Model Code of Professional Responsibility, and twenty-three states have adopted a version of the ABA’s newer Model Rules of Professional Conduct. Two states, California and Maine, have adopted ethical codes that bear little resemblance to either the Code of Professional Responsibility or the Model Rules. Federal courts exercise their own supervisory powers over attorneys who practice within the federal court system. See, e.g., In re Olkon, 605 F. Supp. 784, 791-92 (D. Minn. 1985), aff’d, 795 F.2d 1379 (8th Cir. 1986) (suspended lawyer denied readmission to the federal bar for failure to establish sufficient rehabilitation despite having been readmitted by the state supreme court); In re Mattox, 567 F. Supp. 415, 417 (D. Colo. 1983) (federal bar denies lawyer readmission due to lack of candor and disregard for accuracy despite an order of readmission by the Colorado state bar). Various government agencies also impose separate and additional standards of ethical behavior. See, e.g., Klein v. Peterson, 696 F. Supp. 695 (D.D.C. 1988) (upholding Patent and Trademark Office’s seven-year suspension of an attorney from practice before the PTO); SEC Temporarily Suspends Attorney for Role in Fraudulent Stock Offering, 20 Sec. Reg. & L. Rep. 1243 (BNA) No. 31, at 1243 (Aug. 5, 1988); SEC Rules of Practice, 17 C.F.R. § 201.2 (1988) (Rule 2(e)(3)–suspension and disbarment).
11. A.B.A. STANDARDS FOR APPROVAL OF LAW SCHOOLS Standard 302(a)(iv) (1987).
12. While most lawyering does not occur within the context of litigation, much of lawyering assumes an adversary model. See Rhode, supra note 9, at 595. In precontractual negotiations, for example, many lawyers see their role as advancing their client’s interest in the face of opposition from the lawyer representing the other party. See Kleinberger, Contracts and Disputes: Winning the War or Waging the Peace?, 44 BENCH & B. MINN. 15, 16 (Oct. 1987). Moreover, virtually all nonlitigation lawyering takes place with reference to the possibility of litigation. For instance, a lawyer drafting a commercial contract shapes the agreement to take into account the legal rules applicable in the event of nonperformance. See also K. LLEWELLYN, THE BRAMBLE BUSH 23 (1951) (“The lawyer is interested . . . in anticipating what the courts might do and in shaping his client’s conduct to his client’s desires in view of that anticipation.”) More generally, law schools use cases as their primary materials of instruction. And cases, of course, are the outcome of litigation.
The legal profession is beginning to recognize the inefficiency of litigation, and alternative dispute resolution (“ADR”) has come into vogue. Even ADR methods, however, derive their context from the adversary model. Arbitration, for instance, is merely litigation recast into an arguably more efficient form. Mediation seeks to avoid litigation in part by demonstrating to the principals that litigation would be ineffective, inefficient, or irrational. For an argument that nonlitigating lawyers should not derive their moral viewpoint from the adversary model, see Schwartz, The Professionalism and Accuntability of Lawyers, 66 CALIF. L. REV. 669, 671, 675-95 (1978) (in negotiating/counseling situations the lack of a third-party arbiter, and sometimes the fact that other interested parties are not present to debate the merits, undercuts nonlitigators’ claims to nonaccountability). Cf. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083, 1100-02 (1988) (even in adversary situations attorneys should adjust their tactics so as to promote a “just” solution). See also M. GREEN, THE OTHER GOVERNMENT 271-81, 285-88 (1975) (as “trustees of justice” with public obligations, lawyers may need to make moral judgments regarding their clients). Whatever the merits of Schwartz’s argument, he himself recognizes that the adversary model continues to dominate the profession’s view of itself. See Schwartz, supra, at 672. Indeed, Schwartz’s own proposed Professional Rule for the Nonadvocate requires continual reference to at least the possibility of litigation. Id. at 685 (improper to assist client in making an agreement that the lawyer knows “would be unenforceable or could be avoided by the other person”; improper “to aid the client in committing a tort . . . provided that this rule applies in business or commercial transactions only to torts as to which it is probable that the other person will . . . be unable to obtain the remedy provided by the law”). The Model Rules have recently given formal recognition to the lawyer as counselor. MODEL RULES OF PROFESSIONAL CONDUCT Rules 2.1 and 2.2 (1987). The adversary model, however, shows no signs of loosening its grip on the general ideology of the profession. Shaffer, The Unique, Novel, and Unsound Adversary Ethic, 41 VAND. L. REV. 697, 697 (1988).
13. MODEL RULES OF PROFESSIONAL CONDUCT preamble para. 2 (1987).
14. Rhode, supra note 9, at 599 & n.35, suggests a subtheme: that if in a particular case the system fails and the “wrong” side wins, the winning lawyer is not at fault; “the fault lies with the judge, the jury, or the litigant who failed to secure adequate counsel.”D’
15. Cramton, Beyond the Ordinary Religion, 37 J. LEGAL EDUC. 509, 509, 515 (1987) (to reach beyond the “unarticulated . . . value system of legal education” and to produce a set of “beliefs that are likely to be a closer approximation to the truth” requires a “rigorous examination of our beliefs in light of experience, data, and competing views”). The system is good for society in the sense that, given the values of our culture and the amount of resources we are willing to commit, the system produces acceptable outcomes in the overwhelming majority of cases.
16. For an argument that it is morally correct for a lawyer’s primary purpose to be the furthering of his client’s interests, see Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976).
17. See, e.g., Brazil, The Attorney as Victim: Toward MoreCandor About the Psychological Price Tag of Litigation Practice, 3 J. LEGAL PROF. 107, 108 (1978) (“As a litigator, I was a fulltime, professional combatant . . . . ”) Unfortunately, many nonlitigators see themselves similarly.
18. See C. WOLFRAM, MODERN LEGAL ETHICS § 10.2.1 (1986); see also Fried, supra note 16, at 1066 (“[o]ne who acts according to that [traditional] conception [of the professional role] is to that extent a good person”). This argument assumes that the attorney’s representation has complied with the rules of combat, i.e., that the attorney has complied with the professional norms governing the conduct of the adversary process.
19. See Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63, 73 (1980); Rhode, supra note 9, at 618; Schwartz, supra note 12, at 674-75; Wasserstrom, supra note 4, at 5-6.
20. Lawyers do occasionally think about compliance with ethical codes, but such compliancerelated thinking has little to do with ethical sensitivity and commitment. See infra notes 28-29.
21. Again, any lawyer with a few years of experience could supply examples: the successful litigator who regularly pushes right up to the Rule 11 line; the well-respected counselor who churns the billing meter; the senior lawyer who abuses the support staff and the junior attorneys. The legal profession is by no means unique in this respect. It may not be true that “nice guys finish last,” but throughout our society a lot of very not-so-nice guys finish first.
Any person striving for moral conduct must deal with the problem presented by the success of evil. Indeed, if evil never had success, there would be little virtue or challenge in doing “right.” If the path of righteousness were the path of comfort and success, the devil could be righteous easily enough. Some world views have dealt with this problem by treating material success as an outward sign of virtuous character. See, e.g., M. WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (2d ed. 1976).
22. As selected examples of potentially costly situations, consider: a junior attorney who is assigned to help a “corporate raider” mount a legal but (arguably at least) socially destructive takeover attempt, and who feels uncomfortable facilitating such rapacious behavior; a trial attorney who routinely appears in front of a particular judge and who hears that judge in chambers note that a woman struck by her husband “probably deserved it”; a member of Mothers Against Drunk Driving who decides to stop representing repeat drunk driving offenders in license revocation proceedings.
23. The text attempts to draw a “social psychology” of the ideology, i.e. it attempts to infer the practical impact on thought and conduct that will likely result from adherence to the belief system. This approach is suggested by Max Weber. See M. WEBER, The Social Psychology of the World Religions, in FROM MAX WEBER 267 (1946).
24. See Shaffer, supra note 12, at 699 (quoting author’s colleague Steven Hobbs).
25. See Flynn, Professional Ethics and the Lawyer’s Duty toSelf, 3 WASH. U.L.Q. 429, 442 (1976) (arguing that ethics classes that treat the Code of Professional Responsibility as the definition of a lawyer’s ethical duties “‘retard a student’s ethical development”); Shaffer, supra note 12, at 697.
26. Professor Shaffer quotes an excerpt from the diary of one of his law students: “Personal involvement and the law don’t seem to mix. If you want to be good you must be indifferent.” T. SHAFFER, ON BEING A CHRISTIAN LAWYER 168 (1981). See also id. at 169 (“Avoidance of the moral is almost a sacred tradition in the culture of American lawyers.”); Postema, supra note 19, at 80 (the lawyer “disengages his moral personality [from the work and] views himself not as a moral actor but as a legal technician”); Wasserstrom, supra note 4, at 8 (“[t]he lawyer as professional comes to inhabit a simplified universe which is strikingly amoral . . . . ”).
27. C. WOLFRAM, supra note 18, at § 10.2.1.
28. Hazard, Legal Ethics: Legal Rules and Professional Aspirations, 30 CLEV. ST. L. REV. 571, 574-76 (1981).
29. The author served on a local ethics committee that once debated whether a lawyer had violated ethical standards by having consensual sexual relations with a client during the period of representation. The lay members of the committee were appalled at the abuse of power involved and analogized the conduct to sex between a psychiatrist and a patient or between a teacher and an adult student. The attorney members of the committee, in contrast, worried whether the conduct violated any specific prohibition of the Model Rules. Cf. California State Bar Standing Comm. on Professional Conduct, Formal Op. 1987-92 (1988).
30. Lehman, The Pursuit of a Client’s Interest, 77 MICH. L. REV. 1078, 1079 (1979).
31. Shapero v. Kentucky Bar Ass’n, 108 S. Ct. 1916, 1930 (1988) (O’Connor, J., dissenting) (“Operating a legal system that is both reasonably efficient and tolerably fair cannot be accomplished, at least under modern social conditions, without a trained and specialized body of experts.”). See also Fried, supra note 16, at 1073 (“[T]he social nexus . . . has become so complex that without the assistance of an expert advisor an ordinary layman cannot exercise that autonomy that the system must allow him . . . . [E]ven a system of law which is perfectly sensitive to personal rights would not work fairly unless the client could claim a professional’s assistance . . . . ”); Wasserstrom, supra note 4, at 7.
32. MODEL RULES OF PROFESSIONAL CONDUCT preamble at 2 (1983).
33. Schwartz, supra note 12, at 677; see also supra note 10.
34. Brazil, Reflections on Community Responsibility and Legal Education, 9 J. LEGAL PROF. 93, 97 (1984); Wasserstrom, supra note 4, at 10.
35. Wasserstrom, supra note 4, at 9. Fried, supra note 16, at 1081, argues that the lawyer’s moral coloring derives from furthering the “autonomy” [[[i.e., the interests] of the client.
36. Some critics of the conventional approach criticize “tactics which procure advantages for the client at the expense of some identified opposing party, [for example,] discrediting a nervous but probably truthful complaining witness or taking advantage of the need or ignorance of an adversary in a negotiation.” Fried, supra note 16, at 1062. The conventional view relies on opposing counsel to protect the timid witness, ferret out the necessary information, and disguise the need. See, e.g., M. FREEDMAN, LAWYER’S ETHICS IN AN ADVERSARY SYSTEM 9 (1975).
37. In these days of expensive and complicated campaigns, no candidate can possibly win without expert assistance. See, e.g., T.H. WHITE, AMERICA IN SEARCH OF ITSELF: THE MAKING OF THE PRESIDENT 1956-1980 375-383 (1982).
38. Note the similar rationalization of one insurance defense attorney who won a case he believed he should have lost: “It’s his lawyer’s fault and [[[the plaintiff’s] own fault for not getting a better lawyer . . . . If the client gets nothing . . . it won’t be my doing; it will be the jury’s responsibility . . . . ”D. ROSENTHAL, LAWYER AND CLIENT: WHO’S IN CHARGE? 82-83 (1974).
39. This analogy might be criticized on the grounds that the campaign expert consciously chooses her principal because of the ends the principal seeks to achieve, while the lawyer does not. Since the analogy between the campaign expert and the legal expert is therefore not complete, it could be contended that the text’s basic argument fails. Yet, as a matter of logic, the lawyer’s claim to moral nonaccountability is unrelated to the personal motivations which cause the lawyer to serve a particular client. The claim instead rests exclusively on the technical service the lawyer provides in a socially approved system of decision making. The analogy is thus complete in all respects that matter. Moreover, as a factual matter, lawyers typically choose the types of clients and ends they will serve when they choose what type of law to practice. The lawyer who accepts employment in an insurance defense firm, or in a legal aid office, is choosing his clientele just as surely as is the advance man who enlists with a particular presidential candidate. For examples of how law firms choose their clients, see M. GREEN, supra note 12, at 282. For a discussion of a lawyer’s ethical right to choose her clients, see MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-26 (1980); MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.2(c) (1983). Cf. Simon, supra note 12, at 1093-96 (arguing that a lawyer should select clients partly based on the importance of the rights the potential clients seek to vindicate).
40. Charles Evers, the brother of slain civil rights activist Medgar Evers, was elected mayor of Fayette, Mississippi, in 1969.
41. Cf. Lehman, supra note 30, at 1097 (comparing the personal responsibility of a lawyer’s acts with the professional responsibility of corporate managers, “‘those who are nominally [merely] the corporation’s agents”).
42. See C. WOLFRAM, supra note 18, at 570-71.
43. Moreover, the conventional morality has apparently provided little impetus for prominent attorneys to represent unpopular causes. See Rhode, supra note 9, at 630 nn.135-37; Simon, supra note 12, at 1136-37.
44. Cf. Wishman, A Criminal Lawyer’s Inner Damage, Minneapolis Tribune, July 23, 1977, § A, at 6, col. 4 (comments of criminal lawyer Seymour Wishman who describes a typical conversation at a dinner party as follows: “‘How can you defend such people?’ I am frequently asked accusatorily . . . . ‘[D]on’t you take any responsibility for what the ones you help might do next?’ they ask incredulously. ‘Very little,’ I answer. But sometimes, late at night, when I’m alone, I think back several hundred criminals ago when I entered law school filled with high expectations and principles. And I wonder about what I have done and whether this was how one should be spending his time.”). See also G.K. CHESTERTON, The Twelve Men, in TREMENDOUS TRIFLES 57-58 (1958), quoted in Postema, supra note 19, at 89 n.22 (“[T]he horrible thing about all legal officials . . . is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”).
45. Lehman, supra note 30, at 1090 (1970); Postema, supra note 19, at 69 (1980); Rhode, supra note 9, at 643.
46. In 1977, the National Socialist Party of America applied for a permit to march through Skokie, Illinois, a community with a large number of Holocaust survivors. Opponents of the march argued that allowing the march in Skokie would do enormous psychological damage to innocent people who had already suffered grievously at the hands of the Nazi Party’s hero, Adolf Hitler. The American Civil Liberties Union supplied legal assistance to the American Nazi Party, seeking to vindicate the Party’s first amendment right of peaceful political expression. See Wash. Post, Sept. 16, 1977, § A, at 26, col. 1; Wash. Post, July 30, 1977, §A, at 7, col. 1; Wash. Post, June 16, 1977, § A, at 3, col. 13. See generally Downs, Skokie Revisited: Hate Group Speech and the First Amendment, 60 NOTRE DAME L. REV. 629 (1985).
47. The argument that “someone has to do it” has an equally unacceptable second cousin–“if I don’t do it, somebody else will.” Schwartz, supra note 12, at 690, labels the latter argument the defense of “replacement” and calls it “‘singularly unpersuasive in moral terms.” See also M. GREEN, supra note 12, at 288.
48. T. HOBBES, LEVIATHAN ch. XIII, at 64 (Everyman’s Library ed. 1962) (1st ed. 1651).
49. Id. at 65.
50. Id., ch. XXIX, at 170.
51. Id., ch. XXVII, at 87.
52. See, e.g., Nieting v. Blondell, 306 Minn. 122, 131, 235 N.W.2d 597, 602-03 (1975) (“[P]aramount interests of the members of an organized and civilized society are that they be afforded protection against harm to their persons, properties and characters.”).
53. M. WEBER, Politics as a Vocation, in FROM MAX WEBER 78 (1946).
54. Whatever forms of self-help the state does not monopolize, such as self-defense, it legitimizes and delineates.
55. The argument in the text reflects the concept of noblesse oblige, i.e., that people of rank and power are obliged to act honorably. THE AMERICAN HERITAGE DICTIONARY 844 (2d College Ed. 1988). See also Shapero v. Kentucky Bar Ass’n, 108 S. Ct. 1916, 1930 (1988) (O’Connor, J., dissenting) (“[S]pecial ethical standards for lawyers are properly understood as an appropriate means of restraining lawyers in the exercise of the unique power that they inevitably wield in a political system like ours.”), and Levinson, Making Society’s Legal System Accessible to Society: The Lawyer’s Role and Its Implications, 41 VAND. L. REV. 789, 800-01 (1988). For a comparable notion in another profession, see “‘The Faith of the Engineer,” which states in part: “From my special capacity springs the obligation to use it well in the service of humanity; and I accept the challenge that this implies.” Promulgated by the Engineers’ Council for Prof. Dev., quoted in J. KULTGEN, ETHICS AND PROFESSIONALISM 82 (1988).
56. Our society has endorsed the economic philosophy of the “invisible hand” in the Sherman Act, 15 U.S.C. §§ 1-7 (1982), which has been called “almost an economic constitution for our complex national economy.” NBO Indust. Treadway Cos. v. Brunswick Corp., 523 F.2d 262, 278-79 (3d Cir. 1975), vacated on other grounds, 429 U.S. 477 (1977); see also United States v. Topco Assoc., 405 U.S. 596, 610 (1972) (“Antitrust laws in general, and the Sherman Act in particular . . . are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms.”); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, Inc., 340 U.S. 211, 213 (1951) (essential to workings of national economy is “the freedom of traders”); Gilson, The Outside View of Inside Trading, N.Y. Times, Feb. 8, 1987, § 4 at 23, col. 3 (discussing opinion surveys which indicate that “the market is regarded as ‘fair and wise’ and political practices . . . are regarded as neither”).
57. Bowie, The Law: From a Profession to a Business, 41 VAND. L. REV. 741, 745-46 (1988). Cf. Wasserstrom, supra note 4, at 13 (analogizing the character traits that make for a successful lawyer with those that make for a successful capitalist). As an example of business ideology’s power of reassurance, consider the following passage from P. BENTLEY, INHERITANCE 31-32 (1932). The Oldroyd family is about to mechanize part of its cloth manufacturing operation, and Mr. Oldroyd is speaking to his son, Will, about the reactions of the workers. “Why the silly lads can’t see now that if we turn out cloth cheaper we shall sell more, and so there’ll be more work for them, passes my understanding . . . . In a few years . . . the trade’ll be ten times what it is today.” “I suppose there’ll be a time between now and then when some of the hand-croppers will be out of work,” mused Will. “That can’t be helped,” said his father shortly. “They’ll be better off in the long run.”D’
58. Bates v. State Bar of Ariz., 433 U.S. 350 (1977).
59. See CANONS OF PROFESSIONAL ETHICS Canon 12 (1908) (“the profession is a branch of the administration of justice and not a mere money-getting trade”).
60. SIR DUDLEY NORTH, DISCOURSE ON TRADE (1691), quoted inL.A. CLARKSON, THE PRE-INDUSTRIAL ECONOMY IN ENGLAND 1500-1750, at 209 (1971).
61. See, e.g., Shapero v. Kentucky Bar Ass’n, 108 S. Ct. 1916, 1926 (1988) (O’Connor, J., dissenting) (criticizing targeted direct mail solicitation and stating, “The advice contained in unsolicited ‘free samples’ is likely to be colored by the lawyer’s own interest in drumming up business, a result that is sure to undermine the professional standards that States have a substantial interest in maintaining.”); see also Rhode, supra note 9, at 593 nn.10 & 11. A year before the decision in Bates, Professor Fried argued that, while “[i]t is undeniable that money is usually what cements the lawyer-client relationship,” the relationship nonetheless transcends the commercial. Fried, supra note 16, at 1075. In support of his position, Professor Fried cited the MODEL CODE OF PROFESSIONAL RESPONSIBILITY in EC 2-31, 2-32 (1980), which requires a lawyer to continue to represent a client who has failed to pay his or her bill, if withdrawal would prejudice the client. The Code provision, however, seems a frail reed upon which to base an argument. Lawyers with good commercial sense (or their office managers) watch their “accounts receivable aging” so they can “fire” clients before rules of ethics get in the way. Alternatively, they may seek security for the accumulating bill. See, e.g., Northwestern Nat’l Bank v. Kroll, 306 N.W.2d 104 (Minn. 1981) (invalidating an attorney’s lien placed on a client’s homestead). Moreover, the Model Rules specifically allow withdrawal where “the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.” MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.16(b)(4) (1987). But see id. Rule 1.16(c) (approval of tribunal may be required).
62. See Note, Attorney Advertising: Who’s Really Afraid of the Big Bad Lawyer?, 22 NEW ENG. L. REV. 727, 727-28 (1988). Justice O’Connor, in dissent in the case of Shapero, 108 S. Ct. at 1925, argues that the cases which have relaxed restrictions on lawyer advertising and solicitation are “built on defective premises and flawed reasoning.” For an argument that restrictions should be further relaxed, see Calvani, Langenfeld & Shuford, Attorney Advertising and Competition at the Bar, 41 VAND. L. REV. 761 (1988).
63. There even exists a National Association of Law Firm MarketingAdministrators. The Association has begun presenting annual awards in six categories (brochure, client newsletter, identity program, announcement, advertisement, and market research). 45 BENCH & B. MINN. 8 (May/June 1988). The A.B.A. Journal, which bills itself as “The Lawyer’s Magazine,” now has a monthly feature on “marketing.” See, e.g., Burke, Fine-Tuning a Newsletter, A.B.A. J., July 1, 1988, at 60.
64. See Jones, The Challenge of Change: The Practice of Law in the Year 2000, 41 VAND. L. REV. 683, 688 (1988).
65. Id. at 686-88. As the majority opinion in Bates acknowledged, “The belief that lawyers are somehow ‘above’ trade has become an anachronism . . . . ” Bates v. State Bar of Ariz., 433 U.S. 350, 371-72 (1977).
66. Cf. Shapero, 108 S. Ct. 1916, 1930 (O’Connor, J., dissenting) (“Imbuing the legal profession with the necessary ethical standards is a task that involves a constant struggle with the relentless natural force of economic self-interest.”); see also Cramton, supra note 15, at 511 (1987) (commercialism leads to the “deprofessionalization” of the legal profession).
67. Karl Llewellyn’s classic comments still apply. Addressing new law students he said, “The hardest job of the first year is to lop off your common sense, to knock your ethics into temporary anesthesia. Your view of social policy, your sense of justice–to knock these out of you along with woozy thinking, along with ideas all fuzzed along their edges.” K. LLEWELLYN, supra note 12, at 101. See also M. KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES 27 (1987) (describing “the hierarchical classroom style in which phony priests first crush and then they bless each new group of initiates”); T. SHAFFER, supra note 26, at 165-66 (1981) (describing Llewellyn’s view as “celebrated in American legal culture”); Flynn, supra note 25, at 441.
68. See T. SHAFFER, supra note 26, at 172-73.
69. See Cramton, The Ordinary Religion of the Law School Classroom, 29 J. LEGAL EDUC. 247, 259 (1978) (describing a lawyer as an “intellectual prostitute”); Flynn, supra note 25, at 434 (relativism leads to cynicism).
70. M. WEBER, supra note 53, at 148.
71. Id. at 146.
72. See Bok, Ethics, the University & Society, 90 HARVARD MAGAZINE, May-June, 1988, at 39, 40; Cramton, supra note 69, at 250, 253-54.
73. But see T. SHAFFER, supra note 26, at 172. Shaffer argues that developing ethical sensitivity in law students requires that the instructor have some familiarity with “the tools of analysis used by students and teachers of ethics . . . . It would not do . . . to deal with moral assertions only by subjecting them to legal logic, wit, and sarcasm.” The author has heard the same sentiment expressed by a first-year law student at a meeting called to discuss how to inject a greater concern for ethics into the curriculum. The student had previous training in the study of ethics, and felt that most of her classmates lacked even the rudimentary intellectual equipment necessary to analyze complicated moral issues. Perhaps Professor Shaffer and the student are correct, at least once the process of examining lawyers’ ethics has truly gotten under way. Before that process can begin, however, we need to dissolve the dominant preconception of amorality. At the threshold level we need a solvent, and that is a function well-suited to “legal logic, wit, and [perhaps even occasionally] sarcasm.” Id. For an example of an effective, solvent-like use of legal logic and wit, see Shaffer, supra note 12.
74. Dean Cramton quotes a comment of M. McDougal to illustrate the “skeptical attitude towards . . . principles and received wisdom” that law school inculcates: “‘Legal rules are but the normative declarations of particular individuals, conditioned by their own particular milieu, and not truths revealed from on high.”DD” Cramton, supra note 69, at 248-49 (quoting McDougal, Fuller v. The American Legal Realists, 50 YALE L.J. 827, 834 (1941)). At present, our law schools teach lawyers to be skeptical of everything except the conventional amorality of the legal profession.
75. For an example of such scrutiny and critique, see Brazil, supra note 17, at 107.
76. Shapero v. Kentucky Bar Ass’n, 108 S. Ct. 1916, 1933 (1988) (O’Connor, J., dissenting) (“Such knowledge by its nature cannot be made generally available and it therefore confers the power and the temptation to manipulate the system of justice for one’s own ends. . . . [L]awyers must be provided with expertise that is both esoteric and extremely powerful.”).
77. Cramton, supra note 69, at 254.
78. Bok, supra note 72, at 42.
79. See supra note 73 and accompanying text.
80. See Cramton, supra note 15, at 515.
81. M. WEBER, supra note 53, at 147, 152.