[3.1.3.] The Role-Differentiated Behavior of Professionals.
The role of the professional brings with it alterations in the professional’s “moral world” that are analogous to those that occur for parents and scientists. This is true for the doctor and the psychiatrist, as well as for the lawyer. There is one way in particular in which the role of the professional is quite similar to that of the parent:
... the professional qua professional has a client or patient whose interests must be represented, attended to, or looked after by the professional. And that means that the role of the professional (like that of the parent) is to prefer in a variety of ways the interests of the client or patient over those of individuals generally. (5)
[3.1.4.] The Role-Differentiated Behavior of the Lawyer.
The first moral criticism that Wasserstrom will consider is that it is morally unjustifiable for lawyers to act as amoral technicians. That view of lawyers is summarized in the following points:
· “Provided that the end sought is not illegal, the lawyer is, in essence, an amoral technician whose peculiar skills and knowledge in respect to the law are available to those with whom the relationship of client is established.” (6, emphasis added)
· “[W]here the attorney-client relationship exists, it is often appropriate and many times even obligatory for the attorney to do things that, all other things being equal, an ordinary person need not, and should not do.” (5, emphases added)
· In particular, the lawyer is sometimes obligated to be indifferent toward facts and moral ideas that would demand his attention were he not a lawyer.
The “typical, simple” way of defending the view that it is morally permissible (maybe even obligatory) for lawyers to act as amoral technicians is to generalize from the example of the criminal defense attorney. A criminal defense attorney should still mount the strongest defense possible within the law, even if she suspects the defendant is guilty. Hence, she is required to ignore the potential guilt of the client, something that would be morally relevant for someone who is not a lawyer.
If the amorality of the criminal defense attorney stopped there, this defense would be less problematic. But it seems not to stop there; other examples are more troubling. They involve “the obligation to invoke procedures and practices which are themselves morally objectionable and of which the lawyer in other contexts might thoroughly disapprove.” (6) For example...
· At the time of Wasserstrom’s article (1975-76), in California defendants accused of rape could require that the accuser undergo a psychiatric examination before the trial begins. “[I]t appears to be part of the role-differentiated obligation of a lawyer for a defendant charged with rape to seek to take advantage of this particular rule of law—irrespective of the independent moral view he or she may have of the rightness or wrongness of such a rule.” (7)
· Morally relevant considerations seem to become irrelevant in lots of legal contexts outside of criminal defense, as well...
· estate law. Your client wants to revise his will to exclude one of his children because the child has become an anti-war activist.
· tax law. Your client, who is very wealthy, can take advantage of a loophole open only to the very wealthy; you think this is unfair, but shouldn’t you still tell your client about the loophole?
· corporate law. Preparing articles of incorporation for a company that makes a product that is legal but that the lawyer believes to be unsafe or immoral, e.g., cigarettes.
On this point of view, the lawyer’s job is simply “to provide that competence which the client lacks and the lawyer, as professional, possesses.” (8) It is not to judge the client’s motives and purposes (which may well be immoral), but rather to help the client fulfill his ends so long as they are legal. The lawyer thus occupies “a simplified universe which is strikingly amoral.”
[3.1.5.] An Argument for the Amoral Role of the Lawyer.
Argument 1: “It is good ... that the lawyer’s behavior and concomitant point of view are role-differentiated because the lawyer qua lawyer participates in a complex institution which functions well only if the individuals adhere to their institutional roles.” (9) In other words, this is how lawyers must behave if our justice system is to function well.
· criminal defense: If lawyers were to refuse to represent defendants who they themselves believed to be guilty, then very many defendants would never receive a fair trial. In such a situation, “[t]he private judgment of individual lawyers would in effect be substituted for the public, institutional judgment of the judge and jury. The amorality of lawyers helps to guarantee that every criminal defendant will have his or her day in court.” (10) ‘[This defense resembles Milde’s argument that act utilitarianism is not an appropriate normative approach for legal ethics.]
· drawing up a will / giving tax advice: The real complaint that lawyers in this situation have is with the law itself, not with the clients who want to pursue their own interests within the law. That law (the parts of estate law that allow someone to bequeath his estate to whomever he chooses, independent of those parties’ political views; the loopholes within tax law from which only the wealthy may benefit) is the result of a democratic process; it was enacted by a democratically elected law-making body. Therefore, “[i]f lawyers were to substitute their own private views of what ought to be legally permissible and impermissible for those of the legislature, this would constitute a surreptitious and undesirable shift from a democracy to an oligarchy of lawyers.” (10-11)
Wasserstrom thinks that this kind of argument actually does work in justifying the amoral role of the criminal defense lawyer.
But this is not because the RDB of lawyers in general justifies their amoral stance. Rather, it is (at least in part) because of the special vulnerability of criminal defendants:
Because a deprivation of liberty is so serious, because the prosecutorial resources of the state are so vast, and because, perhaps, of a serious skepticism about the rightness of punishment even where wrongdoing has occurred, it is easy to accept the view that it makes sense to charge the defense counsel with the job of making the best possible case for the accused—without regard, so to speak, for the merits. This coupled with the fact that it is an adversarial proceeding succeeds, I think, in justifying the amorality of the criminal defense counsel. (12)
But we cannot generalize from this conclusion about criminal defense law to say that all lawyers are justified in behaving amorally. Wasserstrom thinks that many people, including himself, have been misled by the example of criminal defense into thinking that it is appropriate for all lawyers, qua lawyers, to behave amorally.
He indicates that “we might all be better served if lawyers were to see themselves less as subject to role-differentiated behavior and more as subject to the demands of the moral point of view. In this sense it may be that we need a good deal less rather than more professionalism in our society generally and among lawyers in particular.” (12)
[3.1.6] Further Points about Amoral RDB.
Wasserstrom says that even if his reasoning so far has been wrong, still, the following points seem true:
· Unlike doctors qua doctors, lawyers qua lawyers (and especially qua advocates), “directly say and affirm things. The lawyer makes the case for the client.” (14)
· Within some areas of legal practice, lawyers frequently have to assert claims to which they are not genuinely committed... and this gives the impression that their very thoughts and words are for sale.
[3.1.7] The Professional-Client Relationship as Inherently Unequal.
In the second section of “Lawyers as Professionals,” Wasserstrom turns to the second sort of criticism he mentioned at the beginning, one having to do with the lawyer’s relationship with her client: “[T]he lawyer-client relationship ... is morally objectionable because it is a relationship in which the lawyer dominates and in which the lawyer typically, and perhaps inevitably, treats the client in both an impersonal and a paternalistic fashion.” (1)
Here he puts the point as follows: “the relationship between the lawyer and the client is typically, if not inevitably, a morally defective one in which the client is not treated with the respect and dignity that he or she deserves.” (15-16)
Much of what he says about this applies not just to lawyers but to all professionals (including doctors, professors, and members of the clergy). DISCUSS: Did you think that any of the points he made might also apply to college professors?
Wasserstrom lists a number of factors that contribute to the inherit inequality of the client and the professional:
1. Difference in Power.
· The professional possesses expert skill or knowledge that the client lacks. For this reason, the client is dependent upon the professional for that skill or knowledge.
· Each profession, especially law and medicine, has its own technical language that the professional, but typically not the client, has mastered. This prevents the client from talking about his own situation (be it his medical condition or his legal situation) in the language of the profession itself.
· A consequence of these two facts is that “the client is in a poor position effectively to evaluate how well or badly the professional performs.” (17) Professionals frequently rely on their own self-assessments; and when they are assessed by others, it is by other members of their own profession.
2. Perceived Difference in Perspective
· Clients seek professionals, especially doctors and lawyers, for assistance with matters that are both personal and very important.
· For this reason, the view within the professions tends to be that a client, even if he had the requisite knowledge, would still lack the impartiality, detachment, and disinterestedness to adequately serve as, e.g., his own doctor or lawyer.
· So the professional comes to be viewed as having a more objective (in the sense of “impartial”) perspective than the client.
3. Perceived Superiority of the Professional.
· Professional training is lengthy, difficult, and not something at which everyone can succeed.
· Society recognizes these facts by paying professionals relatively high salaries and extending to them a certain degree of prestige and respect.
· For these reasons, “[i]t is hard ... if not impossible, for a person to emerge from professional training and participate in a profession without the belief that he or she is a special kind of person, both different from and somewhat better than those nonprofessional members of the social order. It is equally hard for the other members of society not to hold an analogous view of the professionals.” (18)
In sum, the criticism that Wasserstrom is considering is this: because of these factors, the professional-client relationship, including (and perhaps especially) the lawyer-client relationship, is “inherently unequal,” and this is morally objectionable.
[3.1.8] Why This Inequality is Morally Objectionable.
Some degree of inequality might be inevitable in the professional-client relationship, and some of that inequality might even be, in some circumstances, desirable. So Wasserstrom is not implying that this sort of inequality is necessarily a bad thing.
The problem, on Wasserstrom’s view, is that, because of this inequality, professionals sometimes treat their clients in manipulative and paternalistic ways.
...from the professional’s point of view the client is seen and responded to more like an object than a human being, and more like a child than an adult. The professional does not, in short, treat the client like a person; the professional does not accord the client the respect that he or she deserves. And these ... are ... genuine moral defects in any meaningful relationship. (19)
The professional can come to manipulate the client, i.e., to treat him more like an object than like a human being:
· They treat clients as mere parts of people rather than as entire persons. A professional is led to “see the client in a partial way. The lawyer qua professional is, of necessity, only centrally interested in that part of the client that lies within his or her special competency.” (21) So instead of viewing a patient as a person, a doctor will view him as a special kind of kidney condition. And instead of viewing a client as a person, a lawyer might view him as an interesting tax law or estate law problem to be solved.
· Ability to communicate is one thing that distinguishes persons from non-persons... and since clients typically cannot communicate in the technical language of the professional, this encourages the professional to think of the client as something less than a full person.
And she can come to treat her clients paternalistically:
· Because the professional belongs to a group of highly trained people to whom society accords prestige, it is easy for her to believe that she knows more and is better than most other people.
· The client seeks the help of the professional because the professional can do something for him that he cannot do for himself. This encourages the professional to treat the client in a paternalistic and patronizing way: “[T]he lawyer qua professional responds to the client as though the client were an individual who needed to be looked after and controlled, and to have decisions made for him or her by the lawyer, with as little interference from the client as possible.” (22)
[Wasserstrom’s point can be put in Kantian language by saying that professionals are sometimes led to treat their clients as something other than ends-in-themselves, as something less than fully autonomous and rational beings; i.e., they are sometimes led to treat their clients in ways that violate the second version of the Categorical Imperative.]
[3.1.9] What to Do?
Wasserstrom considers the possibility of identifying the sources of this manipulation and paternalism and then changing the professions themselves in order to eliminate those sources. [See Wasserstrom’s description of how, in the 1960s and 70s, some thinkers proposed that psychiatry be changed in order to avoid objectionable doctor-patient inequality, pp.19-20.]
But this is easier said than done: “The question ... is how to weaken the bad consequences of the role-differentiated relationship without destroying the good that lawyers do.” (23)
Wasserstrom concludes by endorsing “a sustained effort to simplify legal language and to make the legal processes less mysterious and more directly available to lay persons.” (23)
Stopping point for Monday August 30. For next time, begin reading the second article by Wassterstrom, “Roles and Morality” (pp.25-33). (Online at the Ingram Library website course reserves page for this class.)
 The case law that established this right of defendants (Ballard v. Superior Court), has, since Wasserstrom’s article was published, been superseded by California Penal Code section 1112, which states in part that “the trial court shall not order any prosecuting witness, complaining witness, or any other witness, or victim in any sexual assault prosecution to submit to a psychiatric or psychological examination for the purpose of assessing his or her credibility.” On this general issue, see Oriana Mazza, “Re-Examining Motions to Compel Psychological Evaluations of Sexual Assault Victims,” St. John’s Law Review 82 (2).
This page last updated 8/30/2010.
Copyright © 2010 Robert Lane. All rights reserved.