[9.4.4.] Rule Utilitarianism and Legal Ethics.

 

Milde now considers legal ethics as rule utilitarianism.

 

On this view, the ethical guidelines within which lawyers are expected to operate (e.g., the ABA’s Model Rules) are not absolute deontological duties which hold apart from considerations of consequences. Rather, they are “rules that have been shown (or are generally expected) to maximize positive outcomes overall (in the long run, all things considered, etc.)”(53)

 

There is an advantage to taking rule utilitarianism as our account of legal ethics, viz. it “combine[s] two generally appealing commitments: first, a concern with adherence to duty, and second, a concern with the consequences of one’s actions.” (54)[1]

 

Nonetheless, rule utilitarianism has distinct disadvantages, which Milde conveys by returning to the Lake Pleasant Bodies Case. Consider once again the Model Rules which came into conflict in that case:

 

Rule 1.6: Confidentiality of Information: ... A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent ...

 

Rule 8.4: Misconduct: It is professional misconduct for a lawyer to: ... commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] engage in conduct that is prejudicial to the administration of justice; ...

 

Rule 3.4: Fairness to Opposing Party and Counsel: A lawyer shall not: ... unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value.

 

With regard to codes of ethics like the Model Rules and to the laws themselves, there is an “underlying assumption that it is adherence to the entire system of rules of conduct that generates maximally positive outcomes. And, in some cases, at least [such as the Lake Pleasant case] the rules conflict.” (54) So as with the deontological approach, rule utilitarianism yields conflict cases.

 

How are these conflicts to be resolved?

 

Milde describes two options, but argues that neither is satisfactory:

 

1.      Appeal to some other, higher-level rule—a rule about rules and how to decide among them—in order to choose which rule to follow and which to break. Such a higher-level rule would tell you how to rank or prioritize the more specific rules. But this approach is problematic. The higher-level rule “would ... have to be justified on the basis that it actually maximizes overall utility. Clearly this is a very difficult claim to make out. On what basis could such a determination be made?” (54)

·        Milde’s point seems to be an epistemic one (“epistemic” means having to do with knowledge or evidence). In actual practice it would be extraordinarily difficult for a lawyer to know which kind of ranking or prioritization would result in maximized utility.

 

2.      Revert to act utilitarianism: prioritize the rule the following of which would increase utility in the specific case at hand. But, says Milde, this takes us right back to the problems with act utilitarianism we’ve already considered.

 

Mile will now argue that the best approach is neither deontology nor consequentialism, but virtue ethics...

 

 

[9.5.] Legal Ethics and Virtue Ethics.

 

Having given negative arguments against deontology and (both act and rule) utilitarianism as accounts of legal ethics, Milde here begins building his positive argument in support of virtue ethics as the best account of legal ethics.

 

As he has done in earlier in the paper, he focuses his investigation around cases where black letter law and professional codes turn out to be insufficient as moral guidelines: “hard cases in which the rules of professional conduct and the jurisprudence developed by the courts run out, or run into a dead end, or run into each other.” (55)

 

And he makes explicit a point that he has hinted at earlier in the article: in these difficult cases, “the lawyer becomes a moral agent who has the added responsibility of framing responses appropriate for the profession as well as for [himself].” (55)

·         In other words, there is a sense in which a lawyer, making a decision in a hard case (like the Lake Pleasant Bodies Case), is serving as an example for other members of his profession.

·         His duty is not simply to make the best possible decision for that case, but to behave in a manner that will serve as an appropriate model for other lawyers, as well.

 

Milde believes that virtue ethics provides the best account of this situation, and he turns specifically to Aristotle’s version of virtue ethics.

 

 

[9.5.1.] Aristotle and Eudaimonia.

 

According to Aristotle’s (384-322 BCE) Nichomachean Ethics[2], the goal of all human activity is eudaimonia. This Greek word is frequently translated as “happiness,” but Aristotle had in mind something richer than a mere psychological state. A better translation might be “flourishing” or “well-being.”

 

But as Aristotle is aware, simply to point out that all human activity is directed towards eudaimonia is not to say very much. So what is eudaimonia, according to Aristotle?

 

To answer this question, we need first to answer a more fundamental question: what is the function of “man,” i.e., what is the function of a human being?

 

Aristotle is assuming something that seems strange to modern ears, viz., that human beings have a function. Just like the flute-player has a function (to play the flute), just like the eyes have a function (to see), and just like a hammer has a function (to pound nails), so a human being also has a function.

 

...just as for a flute-player, a sculptor, or an artist, and, in general, for all things that have a function or activity, the good and the ‘well’ is thought to reside in the function, so would it seem to be for man, if he has a function. Have the carpenter, then, and the tanner certain functions or activities, and has man none? Is he born without a function? Or as eye, hand, foot, and in general each of the parts evidently has a function, may one lay it down that man similarly has a function apart from all these? What then can this be? Life seems to be common even to plants, but we are seeking what is peculiar to man. Let us exclude, therefore, the life of nutrition and growth. Next there would be a life of perception, but it also seems to be common even to the horse, the ox, and every animal. [3]

 

Whatever the purpose of a human being is, it has to be something unique to us, a function that only human beings have. So it is not simply living (since plants do that, too), and it is not simply perception (since non-human animals do that).

 

There remains, then, an active life of the element that has a rational principle ... Now if the function of man is an activity of soul which follows or implies a rational principle, ... human good turns out to be activity of soul in accordance with virtue, and if there are more than one virtue, in accordance with the best and most complete. (Nic. Eth. 1.7, 1097b22-1098a20, trans. by W. D. Ross; this is a different translation that that quoted by Milde)

 

So the function of man is to engage in activity that is guided by reason. (In fact, Aristotle defined a human being as a rational animal.)

 

It follows that human good is rational activity in accord with virtue:

 

Why should we not call happy [eudaimon] the man who exercises his abilities according to the highest standards of virtue and excellence in a context which affords him sufficient resources and not merely for a brief moment but throughout his life?

 

 

[9.5.2.] Role Models and Training.

 

Milde notes that it is relatively easy to apply a function-based analysis to a person practicing a specific profession, such as law: “it makes sense that a good lawyer (or physician or accountant or farmer) is one who performs the function of his/her profession, and does so in accordance with recognized standards of excellence.” (56)

 

[So, as we will see in the next lecture, a complete account of legal ethics will need, among other things, an explanation of the function of the law (and thus, as we will see, it will require a definition of “law”).]

 

“[O]ne acquires the appropriate virtues for a given task ... through habituation and training...” (57)

 

Again, it is from the same causes and by the same means that every virtue is both produced and destroyed, and similarly every art; for it is from playing the lyre that both good and bad lyre-players are produced. And the corresponding statement is true of builders and of all the rest; men will be good or bad builders as a result of building well or badly. For if this were not so, there would have been no need of a teacher, but all men would have been born good or bad at their craft. This, then, is the case with the virtues also; by doing the acts that we do in our transactions with other men we become just or unjust, and by doing the acts that we do in the presence of danger, and being habituated to feel fear or confidence, we become brave or cowardly. ... Thus, in one word, states of character arise out of like activities. This is why the activities we exhibit must be of a certain kind; it is because the states of character correspond to the differences between these. It makes no small difference, then, whether we form habits of one kind or of another from our very youth; it makes a very great difference, or rather all the difference.[4]

 

Milde believes that this Aristotelian claim about training and habituation applies to lawyers as well:

... one acquires the virtues of the legal profession through professional practice. And clearly one has to learn these practices (and their attendant ‘habits’) from someone who both knows what they are and is capable of executing them. This process of modeling in order to transmit knowledge is the key to both professional and moral education. (57, emphases added)

 

Professional Practice

 

Lawyers can receive the right sort of “practice” by relying on the institutional supports that are available to them. These things all “provide information regarding the dispositions and capacities required to be a lawyer ... [and] indicate what one has to do, how one has to be, in order to be a good lawyer.” (58) Lawyers are

·         required to attend an accredited law school (a school that has been evaluated and approved by an accrediting organization)[5];

·         required to pass the bar examination in the jurisdiction in which they will practice[6]; and

·         provided with codified moral guidelines, such as the ABA’s Model Rules, court rulings and the findings of disciplinary bodies.

 

Role Models

 

And most importantly for Milde’s virtue ethics approach, lawyers have access to examples of “successful and honored members of the profession ... lawyers who attain senior positions in the profession, as senior partners, judges, or officers of the bar, assume the status of role models: in their actions, decisions, and pronouncements they are seen to be reconciling the often conflicting demands of the profession.” (58)

 

Milde recognizes that not all successful lawyers can serve as the role models that his virtue ethics approach requires:

·         There are examples of successful lawyers who lack moral integrity (Milde might cite Mike Nifong here!)

·         Some successful members of the profession, held up as role models, may possess moral luck: they have never been put in a position where they have to make a morally difficult decision, and so they have no experience that would justify looking to them as moral exemplars.

 

 

[9.5.3.] The Role of Reasons.

 

Milde believes that adequate moral training requires the trainee to “absorb the reasons upon which the exemplars themselves rely” (58, emphasis added) rather than simply emulating their behavior. It is not enough simply to do what they do. You have to understand why they do it, and then do it yourself for those same reasons.

 

Those reasons will usually be either utilitarian (they do it in order to create good consequences) or deontological (because they recognize some pre-existing duty or obligation).

·         In this way his Aristotelian virtue ethics approach “allows for a principled accommodation of both deontological and consequentialist perspectives. Each can be assigned a role in the process of education, habituation, and decision making.” (58)

 

It is not enough simply to do what another, senior lawyer has done. If forced to defend one’s action, it will not do simply to point out that a respected lawyer or judge did the same thing, or even to point out that a respected legal professional advised you to do the same thing.

 

You will need to be able to provide some independent reasons for having made the choice you did: “moral agency requires, in the end, that one take responsibility for one’s actions and decisions. Thus, at the least, one will have to reproduce (and be able to defend) the rationale behind the action.” (59)

 

 

[9.5.4.] The Need for a Definition of “Law.”

 

Milde acknowledges that so far, his account of legal virtue ethics is somewhat lacking in content. For example, he has not yet told us what the specific virtues of legal ethics are.

 

Milde says that in order to answer that sort of question and thereby flesh out legal virtue ethics, we must first get clear on the function of the law.

 

And to do this we need to have in hand a definition of “law.” What is a law? What makes given rule a law rather than simply a rule? What makes a system of rules a legal system? But there are different ways of defining law, as we will see...

 

 

Stopping point for Friday March 27. For next time, finish reading the article by Milde (“Legal Ethics: Why Aristotle Might be Helpful,” pp.60-64).