[11.] Lawyers and Role-Defined Morality.

 

In this final unit, we will consider whether professional roles, including the role of lawyer, make a difference with regard to the moral obligations and rights of the people who occupy them.

 

 

[11.1.] Wasserstrom: “Lawyers as Professionals: Some Moral Issues.”

 

Richard Wasserstrom is Professor Emeritus of Philosophy at the University of California—Santa Cruz.

 

Wasserstrom considers “two moral criticisms of lawyers”:

 

1.      “[T]he lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.” (1) This is about the lawyer’s relationship with other human beings in general.

 

2.      “[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) This is about the lawyer’s relationship with her client. [we will consider this criticism next time]

 

Both criticisms arise because the lawyer is a professional.

 

As this implies, some of what Wasserstrom has to say with regard to these two criticisms will apply to other professionals, e.g., doctors.

 

But some will be specific to lawyers, since in some ways the lawyer’s situation is different from that of other professionals.

 

Wasserstrom says he “is undecided about the ultimate merits of either criticism.” (2) So he is not fully convinced that either criticism actually works. The goal of the paper is “to exhibit the relevant considerations and to stimulate additional reflection” (2).

 

 

[11.1.1.] Professionals and Professions.

 

In an important footnote (n.1, pp.1-2), Wasserstrom clarifies the sense in which he is using the word “professional.” In doing so, he makes a distinction between two senses of the word:

 

professional (broad sense): “a person who possesses sufficient skill to engage in an activity for money and who elects to do so.” In this sense, there are professional athletes, professional actors, and professional hairstylists; lawyers and doctors are professionals in this sense, too.

 

professional (narrow sense): this is not as easy to define, although lawyers and doctors (and I would add: college professors and members of the clergy) are definitely included, and actors, athletes and hairstylists are not. Wasserstrom gives six characteristics of the professions [see note 1, pp.1-2]. Any occupation that  has all six of these is a profession, and anyone working within it is a professional in the narrow sense.

 

 

[11.1.2.] Role-Differentiated Behavior.

 

Both the professional (be she a lawyer, doctor, or some other sort of professional) and the client/patient engage in role-differentiated behavior (RDB), behavior that is specific to persons who occupy a particular social role.

 

What Wasserstrom takes to be important about RDB is that it “often makes it both appropriate and desirable for the person in a particular role to put to one side considerations of various sorts—and especially various moral considerations—that would otherwise be relevant if not decisive.” (3)

 

In other words, when an individual engages in RDB, she is often justified in ignoring specific facts and moral ideas that she would not be justified in ignoring were she not engaged in that RDB. RDB “often alters, if not eliminates, the significance of those moral considerations that would obtain, were it not for the presence of the role.” (4)

 

Examples of social roles that require RDB (4):

·         being a parent;

·         being a scientist.

 

According to Wasserstrom, “the burden of proof ... is always upon the proponent of the desirability of this kind of role-differentiated behavior.” (5)

 

 

[11.1.3.] The Role-Differentiated Behavior of Professionals.

 

The role of the professional brings with it analogous alterations in the professional’s “moral world.” This is true for the doctor and the psychiatrist, as well as for the lawyer. There is one way 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)

 

 

[11.1.4.] The Role-Differentiated Behavior of the Lawyer.

 

According to “conventional wisdom” ...

·         “where 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 towards facts and moral ideas that, were he not a lawyer, would demand his attention.

·         “[p]rovided 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)

 

The first moral criticism that Wasserstrom will consider is that this is unjustifiable, from a moral point of view.

 

An example of how the RDB of a lawyer brings with it different moral obligations: a criminal defense lawyer 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.

 

Still other examples are more troubling, these 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)[1]

 

·         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.”

 

 

 

Stopping point for Wednesday April 15. For next time, finish reading Wasserstrom’s “Lawyers as Professionals: Some Moral Issues” (pp.15-24)