[11.1.5.] 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.

 

For example:

 

·         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) [Cf.  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)

 

 

[11.1.6] Further Points about Amoral RDB.

 

Wasserstrom says that even if his reasoning so far has been wrong, still, the following points seem true:

 

1. “[A]ll of the arguments that support the role-differentiated amorality of the lawyer on institutional grounds can succeed only if the enormous degree of trust and confidence in the institutions themselves is itself justified.” (12-13)

 

2. “[I]t is clear that there are definite character traits that the professional such as the lawyer must take on if the system is to work. What is less clear is that they are admirable ones.” (13) He mentions competitiveness, aggressiveness, and ruthlessness. [As we saw in our coverage of business ethics, this is a possible vice that has characterized many prominent business leaders.]

 

3. “The verbal, role-differentiated behavior of the lawyer qua advocate puts the lawyer’s integrity into question in a way that distinguishes the lawyer from the other professionals.” (13)

·         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)

·         This will frequently involve asserting claims to which the lawyer herself is not  genuinely committed... and this gives the impression that her very thoughts and words are for sale.

 

4. “[E]ven if on balance the role-differentiated character of the lawyer’s way of thinking and acting is ultimately deemed to be justifiable within the system on systematic instrumental grounds, it still remains the case that we do pay a social price for that way of thought and action. ...  In important respects, one’s professional role becomes and is one’s dominant role, so that for many persons at least they become their professional being.” (15) The amoral attitudes and behavior of the lawyer qua lawyer thus affects, in important ways, the attitudes and behavior of the lawyer qua human being.

 

 

Stopping point for Friday April 17. For next time, begin reading the second article by Wassterstrom, “Roles and Morality” (pp.25-33). (This is the article that is in Luban, ed., The Good Lawyer, on reserve at the circulation desk at the library.)