[11.1.7] 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: 

 

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.

 

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).

 

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 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 professional 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.

 

 

[11.1.8] 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.]

 

 

[11.1.9] 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)[1]

 

 

Stopping point for Monday April 20. For next time, finish reading the second article by Wasserstrom: “Roles and Morality” (pp.33-37). We will complete our coverage of Wasserstrom’s views next time.