[11.3.] Pepper’s Defense of the Amoral Role of the Lawyer.

 

The final reading is Stephen Pepper, “The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some Possibilities,” American Bar Foundation Research Journal, Vol. 11, No. 4 (Autumn, 1986), pp. 613- 635.

 

Pepper is Professor of Law at the University of Denver College of Law.[1]

 

In this paper, he defends “the lawyer’s amoral role” against the criticisms that Wasserstrom examined. He describes the amoral role of the lawyer as follows:

 

Once a lawyer has entered into the professional relationship with a client, the notion is that conduct by the lawyer in service to the client is judged by a different moral standard than the same conduct by a layperson. ... [I]f ... conduct by the lawyer is lawful, then it is morally justifiable, even if the same conduct by a layperson is morally unacceptable and even if the client’s goals or means are morally unacceptable. As long as what lawyer and client do is lawful, it is the client who is morally accountable, not the lawyer. (614)

 

 

[11.3.1.] Justifying the Amoral Role.

 

Pepper argues that the amoral role of the lawyer is morally good. His argument is as follows:

 

The First Class Citizenship Argument

 

1.      “[L]aw is intended to be a public good which increases autonomy.” (617)

 

·         In other words, law is intended to be available to everyone in society, and “[a]ccess to [it] increases one’s ability to successfully attain goals.” (616) [For examples, see the paragraph that ends with the sentence just quoted on 616.]

 

2.      “[I]ncreasing individual autonomy is morally good.” (617)

 

·         “This belief is incorporated into our legal system, which accommodates individual autonomy by leaving as much room as possible for liberty and diversity.” (617) It does set limits as to what individuals are permitted to do, but it allows as much room as possible for free choice within those limits.

·          “It may be morally wrong to manufacture or distribute cigarettes or alcohol, or to disinherit one’s children for marrying outside the faith, but the generality of such decisions are left in the private realm. Diversity and autonomy are preferred over ‘right’ or ‘good’ conduct.” (617)

 

3.      In our society, “autonomy is often dependent on access to the law” and thus “requires the assistance of a lawyer.” (617)

 

·         In other words, to be a full-fledged member of our society—to be a “first class citizen”—one must have access to a lawyer.

·         Were the lawyer to substitute his own moral judgment for that of the client’s, this would make each client subject “to the prior restraint of the [lawyer who acts as a] judge/facilitator and to the rule of an oligarchy of lawyers.” (617)

 

4.      Therefore, “[i]f the conduct which the lawyer facilitates is above the floor of the intolerable—is not unlawful—then ... what the lawyer does is a social good.” (617)

 

Subsidiary points:

 

·         If the conduct or end to which the lawyer objects (e.g., excluding a child from one’s will because he has left your religion; incorporating a business to sell cigarettes or pornography) is really that bad, it should be made illegal; and if it is not really that bad, the client should not be subjected “to the happenstance of the moral judgment of the particular lawyer to whom each has access”. (618)

 

·         An example: Wasserstrom considers the case of a person who excludes one of her children from her will because the child’s political views are very different (the child is an activist protesting against a war of which the mother approves). Wasserstrom suggests that it would be proper for a lawyer to refuse to revise the will for his client, presumably because the mother is behaving too paternalistically. But Pepper (quoting Monroe Freedman’s response to this example) asks: “is the lawyer’s paternalism toward the client preferable—morally or otherwise—to the client’s paternalism toward her children?” (618)

 

·         Another important moral value promoted by the amoral role of the lawyer is equality, specifically, equality of access to the law: “If law is a public good, access to which increases autonomy, then equality of access is important. For access to the law to be filtered unequally through the disparate moral views of each individual’s lawyer does not appear to be justifiable.” (618)

 

 

[11.3.2.] Objection 1: Economic Inequality.

 

This objection challenges the first premise of Pepper’s argument, according to which “law is intended to be a public good which increases autonomy.” (617) The objection is that, in fact, law is not a public good, since not everyone has the same access to it. Rather, like many other things in our society, it is rationed through the market and so people with more money have a greater access to it.

 

Pepper’s response: this objection runs together two different issues: how legal services are in fact distributed and the moral content of those legal services:

 

While the effort to make law a more truly public good is under way ... the other issue remains: what is to be the moral content of the legal services that are available? To suggest that transforming the amoral facilitator role of the lawyer into the judge/facilitator role follows from the insufficient availability of legal services is a non sequitor. Such a transformation would compound inequality upon inequality—first the inequality of access to a lawyer, then the inequality of what law that particular lawyer will allow the client access to. (620)

 

 

[11.3.3.] Objection 2: Most Legal Work Not Within Adversary Setting.

 

The basic point of this objection is that, even if Pepper’s First Class Citizen Argument works, it only works with regard to the amoral role of the criminal defense attorney. Most lawyers, most of the time, are not engaged in criminal defense, and so Pepper’s point simply does not apply to most lawyers.

 

In the context of criminal law, the work of adversarial lawyers on each side of a case is constrained by the controlling hand of a judge and the decision-making of a jury, and the judge and jury are expected to behave morally. This produces moral boundaries around the amoral activities of the lawyers.

 

But in most legal work, there is no judge or jury and no such moral boundaries. Thus, the amoral role is not appropriate for other lawyers: “in these situations ... the lawyer must take on the neutral judge’s role and screen access to and use of the law. ... [A] role modeled on Perry Mason does not fit the lawyer working for Sears drafting form consumer contracts.” (621-22)

 

Pepper’s response: his argument does not mention, and does not depend on, the adversary system or the moral constraints provided by a judge and jury: “In this essay, the model is the office lawyer advising about the law and implementing client goals through legally available devices, and one need not stretch to apply that model to litigation. Litigation is simply one of the available devices for implementing goals, like a trust or a corporation.” (622)

 

 

Stopping point for Friday April 24. For next time, finish reading the article by Stephen Pepper.