I. INTRODUCTION. The debate in theoretical legal ethics has largely been over the content of what may be called maxims of action or act-prescriptions. This type ...
Legal Ethics and Moral Character ALICE WOOLLEY * AND W. BRADLEY WENDEL **
I. INTRODUCTION The debate in theoretical legal ethics has largely been over the content of what may be called maxims of action or act-prescriptions. This type of normative theorizing is aimed at reaching a conclusion of the form, “lawyers should do such-and-such.” For example, William Simon concludes that “[l]awyers should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice.” 1 In a similar vein, Deborah Rhode argues that lawyers should “make decisions as advocate in the same way that morally reflective individuals make any ethical decision.” 2 And David Luban would have lawyers uphold human dignity rather than assault it, 3 limiting the ability of lawyers to rely on their professional role to justify violations of ordinary morality. The act-prescriptions provided above are illustrative of how one strand of legal ethics scholars views the role of a lawyer. On the other side of the debate, however, defenders of the standard conception of legal ethics have their own preferred act-prescriptions. 4 Stephen Pepper, for *
Faculty of Law, University of Calgary. Cornell Law School. The authors are grateful for the helpful comments from audiences at a faculty workshop at the University of Washington – Seattle, and the Law and Society Association’s 2009 meeting in Denver, Colorado. 1. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS’ ETHICS 138 (Harvard University Press 1998) [hereinafter SIMON, THE PRACTICE OF JUSTICE]; William H. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083, 1090 (1988) [hereinafter Simon, Ethical Discretion]. 2. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION 67 (Oxford University Press 2000). 3. DAVID LUBAN, LGAL ETHICS AND HUMAN DIGNITY 66 (Cambridge University Press 2007). 4. The normative theoretical literature in legal ethics has largely been preoccupied with so-called standard conception (also called the “dominant view” and the model of “neutral partisanship”), which maintains that the lawyer ought to act exclusively with respect to her client’s interests, and not take into account ordinary moral considerations which would otherwise bear on a similar action by a non-lawyer. For summaries of the standard conception, see, e.g., SIMON, THE PRACTICE OF JUSTICE, supra note 1, at 7 (using the term “dominant view”); LUBAN, supra note 3, at 20 (using “neutral partisanship”); TIM DARE, THE COUNSEL OF ROGUES? A DEFENCE OF THE STANDARD CONCEPTION OF THE LAWYER’S ROLE 11-12 (Ashgate Publishing Limited 2009); Murray Schwartz, The Zeal of the Civil Advocate 150-52 in THE GOOD LAWYER: LAWYERS’ ROLES AND LAWYERS’ ETHICS (David Luban, ed., Rowman & Allanheld 1983); Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63, 73 (1980). **
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instance, instructs lawyers to provide access to the law to further client autonomy, scrupulously withholding judgment about the morality of their clients’ projects. 5 Charles Fried stresses the moral value of loyalty, and insists that lawyers exhibit loyalty to clients, whatever their need or situation, taking the interests of clients more seriously than the interests of “the wider collectivity.” 6 More recently, in a new round of normative debate, one scholar has sought to rehabilitate “the humble task of serving the client’s lawful ends.” 7 Similarly, one of us has argued that the fundamental obligation of the lawyer is to pursue the client’s ends consistent with a good faith interpretation of what legality permits. 8 On the other hand, new critics of the standard conception of legal ethics argue that lawyers giving legal advice should offer their own moral perspective openly. 9 In articulating these act prescriptions, scholars emphasize the individual lawyer as decision-maker and actor. 10 They posit a lawyer capable of independence from situational or institutional pressures who does more than simply follow applicable legal norms – whether the bar’s disciplinary rules or the requirements of generally applicable law. Rather, she is able – and required – to make choices about what should be done in any particular situation, and to exercise her judgment to choose between different actions. Our claim is that, in so doing, legal ethics scholars have paid insufficient attention to the claims about the individual’s personal features – about, inter alia, her dispositions, personality, character, cognition, emotions, or virtues – that correlate with (or inhere in) these actprescriptions. The conclusions of normative arguments within legal ethics seem to imply that lawyers will act straightforwardly on the answer to the question, “what ought to be done, all things considered?” The familiar debate over the standard conception is aimed at persuading lawyers that 5. Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 616-17 (1986). 6. Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1062, 1066 (1976). 7. Norman W. Spaulding, Reinterpreting Professional Identity, 74 U. COLO. L. REV. 1, 2 (2003). 8. W. Bradley Wendel, Professionalism as Interpretation, 99 NW. U. L. REV., 1167, 1169 (2005). 9. Robert K. Vischer, “Legal Advice as Moral Perspective,” 19 GEO. J. LEG. ETHICS 225, 229 (2006). 10. Some theories do so more than others. In the course of our inquiry into this question we will consider as well the extent to which some act prescriptions operate more at the level of individual discretion and judgment, while others operate more at the level of elaborating the rules of conduct applicable to different circumstances of lawyering, such that not much more is required of the lawyer than that she be prepared to follow the particular rule.
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the answer to that question is some maxim of action, M (do justice, exhibit loyalty, etc.), without expressly inquiring further into what kind of person, with what kind of attributes and dispositions, will in fact conduct herself in the manner prescribed by the theory. People have personalities that are not reducible to acting on all-thingsconsidered judgments, and these personalities are “not simply malleable by casuistical argument.” 11 Ethical considerations have to be embodied in a psychological form so that when we ask (and answer) the question, “what should a lawyer do?,” we are also implicitly asking (and answering) the question, “how should the lawyer be?” 12 Very roughly, our aim in this article is to inquire into who is the person tacitly presupposed as the ideal lawyer by these normative theories, and to ask how that person is likely to fare as an ethical decision-maker in actual legal practice. This is an imaginative reconstruction, akin to analyzing a character in a play or novel, as opposed to a project within empirical psychology. The findings of cognitive and social psychology are important tools for understanding how people make ethical decisions, alone and in groups and organizations. Our methodology is not primarily empirical, however, but is a distinctive normative approach. Rather than considering only act-prescriptions as objects of analysis, we suggest that legal ethicists should also pay attention to the kind of person who is likely to act in accordance with some set of maxims of action. We can ask whether the personal characteristics of the lawyer favored by some ethical theorist are stable, functional, and attractive. To put it more colloquially, would this lawyer be able to work and play well with others? It may turn out that some of the most prominent normative ethical theories are bound up with psychological states that are not necessarily desirable ones for the lawyer herself, her coworkers and clients, or for society in general. Answers to the question of “who is this imagined lawyer?” can operate in different registers. 13 They may orientate primarily to 11. Bernard Williams, Professional Morality and Its Dispositions, in MAKING SENSE OF HUMANITY 192, 199 (Cambridge University Press 1995). A version of this essay is reprinted in THE GOOD LAWYER: LAWYERS’ ROLES AND LAWYERS’ ETHICS 259 (David Luban, ed., Rowman & Allanheld 1983). 12. Id. at 200. 13. One would normally understand the question of “how should the lawyer be?” to be answered solely with reference to moral dispositions; this is how Williams analyzes the question, for example. See infra notes 21-25. However, some ethical theories make strong and consistent demands on personal features other than moral dispositions. For example, a lawyer following Simon’s maxims of action will almost always need to have a high level of cognitive ability to consider the multiplicity of factors that go into determining the action most likely to contribute to the appropriate resolution of a case. As we discuss more in Part II, these demands are as relevant for critiquing and understanding an ethical theory as are demands of a particular moral disposition. They too can be assessed for desirability, plausibility and other factors. Part of our project is to
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requirements of cognition, to what the lawyer is able to perceive and analyze given the norms and factual contexts at issue. 14 They may orientate to requirements of disposition or personality, to the relatively stable set of traits that characterize any individual’s basic temperament, 15 and that, in admittedly complex ways, affect how individuals act and respond to given situations. 16 These personality traits inhering in an act prescription may also be expressed in terms of social role identity, so that the theory permits one’s responses to be “scripted” to some extent by socially salient narratives about how people respond to given situations. 17 point out this aspect of the leading theories of legal ethics, and to open up the possibility for critique of those theories on that basis. 14. RICHARD H. THALER & CASS R. SUNSTEIN, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH AND HAPPINESS (Penguin Books 2009). Thaler and Sunstein review the cognitive assumptions made by classic economic theories, summarize the evidence of behavioral psychology which calls into question many of those assumptions, indicating instead the cognitive biases and distortions which influence human decision-making, and then suggest some policy initiatives which could be used to improve human decisionmaking given those issues in human cognition. Our point here is related to Thaler and Sunstein’s – to consider whether the act prescriptions of theoretical legal ethics similarly presume cognitive capacities that most people do not necessarily have under normal circumstances. 15. David Matsumoto, Culture, Context, and Behavior, 75(6) J. PERSONALITY 1285, 1290 (2007). 16. Wiliam Fleeson & Erik E. Noftle, Where Does Personality Have Its Influence? A Supermatrix of Consistency Concept, 76(6) J. PERSONALITY 1355 (2008). To anticipate an objection from readers familiar with the behavioral psychology literature, we are aware of the research showing that behavioral variation, across populations, owes more to situational differences than to differences in dispositions. See, e.g., JOHN DORIS, LACK OF CHARACTER: PERSONALITY AND MORAL BEHAVIOR (Cambridge University Press 2002); LEE ROSS & RICHARD NISBETT, THE PERSON AND THE SITUATION: PERSPECTIVES OF SOCIAL PSYCHOLOGY (Temple University Press 1991); OWEN J. FLANAGAN, VARIETIES OF MORAL PERSONALITY: ETHICS AND PSYCHOLOGICAL REALISM (Harvard University Press 1991). Each of us has written about how the regulation of lawyers needs to take a more realistic approach, in light of the findings of empirical psychology. See Alice Woolley, Tending the Bar: The Good Character Requirement for Law Society Admission, 30 DALHOUSIE L.J. 37 (2007); W. Bradley Wendel, Ethical Lawyering in a Morally Dangerous World, 19 GEO. J. LEGAL ETHICS 299 (2006). As we will discuss in Section II, it is possible to draw implications from this research that are too strong, in effect concluding that there is no such thing as a stable moral personality (whether defined in terms of character, dispositions, virtues, etc.) that has explanatory significance with respect to actions. Moreover, it is impossible to have a coherent concept of personal identity – an integrated, motivationally effective, relatively cross-situationally stable self – without some reference to psychological traits, or what we are calling here personal capabilities. Some notion of personal identity, in turn, is necessary for having a concept of moral agency and responsibility. See, e.g., Amélie Oksenberg Rorty & David Wong, Aspects of Identity and Agency, in IDENTITY, CHARACTER, AND MORALITY 19 (OWEN J. FLANAGAN AND AMÉLIE OKSENBERG RORTY, eds., MIT Press 1990). We will argue in Section II that the situationalist critique, the fundamental attribution error, and related research on character can be misunderstood as a demonstration that there is no such thing as personal identity, which can be analyzed in its own terms, apart from actions. 17. Rorty & Wong, supra note 16, at 22-23.
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To the extent a theory of legal ethics articulates its maxims of action as a matter of role morality, 18 it will not be surprising that lawyers’ actions are inherently understood in such theories to be influenced, even if not determined, by the expectations and patterns of behavior that are identified with the social role of lawyer. The idea of “zealous advocacy,” for example, and stories of lawyers like Atticus Finch and Clarence Darrow, provide a readymade script for lawyers to follow in ambiguous situations. Alternatively, ways of being prescribed for lawyers may orientate to affective responses, such as fearlessness in the face of criticism from one’s peers, or deriving satisfaction from representing an oppressed client. And, finally, responses to how a lawyer should be may orientate towards the philosophical concept of virtue, to requiring that individuals who will follow the act-prescriptions have the requisite “acquired human quality the possession and exercise of which tends to enable us to achieve those goods which are internal to practices and the lack of which effectively prevents us from achieving any such goods.” 19 The purpose of this paper is to attempt to make express the implicit answers given to the question of “how should the lawyer be?” in some notable and representative theoretical treatments of legal ethics and, as well, to identify the normative challenges for the different theories that may result. To pursue this purpose our basic methodology is as follows. Part II will explain why the registers of personal features identified here – cognition, emotion, dispositions, and virtue – are those employed for analysis of the theories. The heart of the paper, in Part III, is an exploration of the implicit answers to the question, “how should the lawyer be?” given by some representative normative legal ethics – those of Simon, Luban, and Fried. 20 Through one of the hypothetical ethical dilemmas used by Simon to articulate his theory – a private university dealing with a problem in collective bargaining – we will attempt to identify what a lawyer following each act-prescription would be required to do according to these various theories, and then begin to work inductively toward a conception of the kind of person the theories presuppose. Will this person, for example, be required to shift her decision-making depending on the facts as she sees them, or can she 18. For a contemporary defense of the role morality, see Dare, supra note 4. 19. ALASDAIR MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 178 (University of Notre Dame Press 1981). See generally ROSALIND HURSTHOUSE, ON VIRTUE ETHICS (Oxford University Press 1999); MICHAEL SLOTE, FROM MORALITY TO VIRTUE (Oxford University Press 1992). 20. Due to space constraints we have had to be more selective than we would have liked. In the course of the analysis we will attempt to note other theoretical perspectives as well to the extent they may complicate or expand our analysis usefully. The positions we consider here should be understood as case studies relevant to our general claim that one can usefully ask “who is this lawyer?” in response to a set of act-prescriptions that a lawyer ought to follow.
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respond in relatively consistent ways regardless of the facts? Can she rely on the guidance of institutions and rules, or does she need to exercise highly individualized judgment? And what kind of person is it who will be able to do those things? How can she be generally described, and how does that description fit with the registers of personal features previously identified? The last section of the paper, Part IV will identify in preliminary form what the assessment in Part III suggests about the vulnerabilities of the various theoretical perspectives to critique. It will also indicate some further questions and complications that may arise when applying this analytical methodology to the act prescriptions of other ethical theorists. II. THE TAXONOMY OF PERSONAL FEATURES In his article, Professional Morality and Its Dispositions, Bernard Williams notes the significance of moral dispositions – the ways individual people have of approaching the world that affects how those individuals act. 21 Dispositions are, Williams suggests, psychological facts about persons by virtue of which they will “give answers to practical questions, or react to situations with which they are presented” in distinct ways. 22 Dispositions can be “professional” or “general,” 23 and it is possible – and perhaps even desirable – for an individual to experience tension between her general and professional dispositions. These dispositions are distinct from compliance with codified rules (although a willingness to comply with rules is a relevant disposition): “sticking by rules of confidentiality, as David Luban has remarked, is not the same as having a secretive disposition.” 24 They are what, when more is required than mere rule compliance, will orientate a person towards a particular form of action. What follows from this, Williams suggests, is that in articulating an act prescription, it is not sufficient simply to present casuistical argument in favor of the particular act. Attention must also be paid to the disposition underlying the act, to whether the act is consistent with the professional disposition of the lawyers who are to undertake it, given that those dispositions are not infinitely malleable and may indeed be resistant to change. 25 Along these lines, Gerald Postema has criticized the standard conception of the lawyer’s role for putting the lawyer in the uncomfortable position of being required to oscillate between professional dispositions 21
WILLIAMS, supra note 11 22. WILLIAMS, supra note 11, at 262. 23. Id. at 268. 24. Id. at 267. 25. Id.
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and ordinary moral ones. 26 As a result, lawyers may tend to adopt a stance of detachment toward their pre-professional moral commitments. This meta-disposition makes it easier to go in and out of role, but may lead to the adoption of a pervasive attitude of skepticism or cynicism about morality. Regardless of whether one agrees with this critique, the important thing is to notice that, like Williams’ observation, it is aimed at the lawyer’s personal characteristics, not directly at the maxims of the standard conception. Postema and Williams are offering an indirect criticism of the standard conception of the lawyer’s role by pointing to dispositions associated with it. Williams does not provide much explanation, however, of how one delineates the dispositions relevant to a form of action, whether professional or general. He seems to have some sense of dispositions as linked to concepts of morality, what we have earlier called virtues. For example, he describes secretiveness, but not squeamishness, as a matter of disposition. Beyond that, however, it is not clear what Williams counts as a relevant disposition for accomplishing a particular act prescription. Further, it is also not obvious that limiting the focus to specifically moral dispositions makes sense. 27 A person’s motivation for choosing a particular course of action is not necessarily restricted to his moral dispositions. It can also include such things as lack of squeamishness (say, for surgeons), possessing discipline or focus, the willingness to incur personal costs by annoying others, or the cognitive capacity to take a multitude of considerations into account in deliberation. And presumably a professional morality, whether encoded in rules or simply posited as an appropriate maxim of action, needs to account for any personal features which exist as a necessary precondition of the individual making the appropriate choice, whether the precondition is a matter of morality or not. This then raises the question of how, if one explores the question of the dispositions inherent in various act prescriptions, one can do so rigorously and properly. As noted, stopping at the point of moral descriptors seems insufficient to the case. But this then leads to the problem, for our purposes, of how one can identify and label other personal features of the actors assumed by in the various theories once one moves beyond the category of morality. What non-moral descriptors are appropriate objects for analysis? 26. Postema, supra note 4, at 78-82. 27. Williams himself elsewhere acknowledges that there are other psychological pressures on morality, and argues that, as a matter of the metaphysics of personal identity, the very notion of morality must be modified to acknowledge the need of persons to maintain a commitment to certain personal desires and projects that constitute one’s self. See BERNARD WILLIAMS, Persons, Character And Morality, in MORAL LUCK 1, 5-9 (Cambridge University Press 1981).
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To answer this question it is useful to turn, albeit in a fairly limited way, to psychological research on the intersection between decisionmaking and the person. As has now been well aired within legal ethics literature, 28 an important contribution of psychology to ethics has been to indicate the influence of circumstances and situations on individual conduct. Psychological research demonstrates clearly and consistently that acts correlate most strongly to circumstances. 29 Psychology is by no means, however, radically situationalist – it does not show that actions are purely a product of circumstances. Indeed, much of the research done in psychology aims to determine the relationship between individuals and behavior. Recognizing “that context exerts powerful influences on behavior,” 30 psychologists nonetheless attempt to explain the effect of individual differences on how, within contexts, individuals will respond to, and make choices about, what to do. Psychologists have not of course achieved consensus on what that influence is, how extensive it is, how it can be measured, or how it can be explained, and it is clear that psychological identification and assessment of individuals is enormously complicated. 31 Nevertheless, personality and other forms of psychological analysis of individuals provide some terminology and an analytical framework through which we can explore the personal features implied by the act prescriptions of theoretical legal ethics. Specifically, psychologists agree that individual differences in personality (personal dispositions) can be meaningfully explained in
28. See, e.g., LUBAN, LEGAL ETHICS AND HUMAN DIGNITY, supra note 3, at 237-297; MILTON C. REGAN, JR., EAT WHAT YOU KILL: THE FALL OF A WALL STREET LAWYER 291-351 (University of Michigan Press 2004); Kimberly Kirkland, Ethics in Large Law Firms: The Principle of Pragmatism, 35 U. MEM. L. REV. 631 (2005); Donald C. Langevoort, The Epistemology of Corporate-Securities Lawyering: Beliefs, Biases, and Organizational Behavior, 63 BROOK. L. REV. 629 (1997); Donald C. Langevoort, Where Were the Lawyers? A Behavioral Inquiry Into Lawyers’ Responsibility for Clients’ Fraud, 46 VAND. L. REV. 75 (1993). 29. See, e.g., John M. Doris, Persons, Situations, and Virtue Ethics, 32 NOÛS 504 (1998); JOHN M. DORIS, LACK OF CHARACTER: PERSONALITY AND MORAL BEHAVIOR (Cambridge University Press 2002); LEE ROSS & RICHARD E. NISBETT, THE PERSON AND THE SITUATION (McGraw-Hill 1991); PHILIP ZIMBARDO, THE LUCIFER EFFECT: HOW GOOD PEOPLE TURN EVIL (Random House 2007); Gilbert Harman, Moral Philosophy meets Social Psychology: Virtue Ethics and the Fundamental Attribution Error, 99 PROC. ARISTOTELIAN SOC’Y 315 (1999); Gilbert Harman, The Nonexistence of Character Traits, 100 PROC. ARISTOTELIAN SOC’Y 223 (2000). 30. Matsumoto, supra note 15 at 1285. 31. For a sense of some different approaches to the problem see Yuichi Shoda & Walter Mischel, 55 APPLIED PSYCHOL.: INT’L REV. 439 (2006); Walter Mischel, Toward an Integrative Science of the Person 55 ANN. REV. PSYCHOL. 1 (2004); Fleeson & Noftle, supra note 16; Jüri Allik & Robert R. McCrae, Toward a Geography of Personality Traits: Patterns of Profiles Across 36 Cultures, 35 J. CROSS-CULTURAL PSYCHOL. 13 (2004); Matsumoto, supra note 15, at 1285.
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relation to a limited set of observable traits, 32 namely the “Big Five”: agreeableness, conscientiousness, emotional stability, extraversion, and openness to experience. 33 These traits are not identified theoretically; rather they arise practically and analytically from the “natural language terms people use to describe themselves and others.” 34 They reflect our collective and cross-cultural identification of those things that distinguish each of us from each other in general terms. They do not provide a precise delineation of individual differences; as one researcher notes, these traits are not described as “big” to “reflect their intrinsic greatness but to emphasize that each of these factors is extremely broad . . . the Big Five structure does not imply that personality differences can be reduced to only five traits.” 35 Nonetheless, the traits employ the language that reflects the consensus view on the differences that exist between people, and in particular the differences that influence behavior distinct from any influence that may arise (in a “virtues” sense) from specific moral commitments or from specific circumstances. 36 Provided due respect is given to the influence and significance of other variables, there is reason to believe that the traits do correlate to consistency in individual behavior across different situations, albeit in all sorts of complex ways. Indeed, “[t]here is now growing acceptance that behavior is consistent and that personality does exist.” 37 Thus, for example, while everyone may talk more at a cocktail party than at a funeral, an extroverted person may talk 32. “[T]here is consensus that humans come to the world with some set of traits that may characterize their basic temperament.” Matsumoto, supra note 15 at 1290. More detail on the meaning of these five traits is given below. 33. BOELE DE RAAD ESTHER SULLOT AND DICK P.H. BARELDS, Which of the Big Five Factors Are in Need of Situational Specification 22 EUROPEAN JOURNAL OF PERSONALITY 269, 270 Openness to experience can also be referred to as “intellectual autonomy”. 34. OLIVER P. JOHN & SANJAY SRIVASTAVA, The Big Five Trait Taxonomy: History, Measurement, and Theoretical Perspectives, in HANDBOOK OF PERSONALITY: THEORY AND RESEARCH 103 (Lawrence A. Pervin & Oliver P. John, eds., 2001). 35. Id. at 105. 36. Although it may be that some combinations of personality traits correlate to more ethical behavior than others. See, e.g., Nor Shahriza Abdul, Nurul Hidayah Ahmad Zamzuri, Yakinah Muhamad Nor, Exploring the Relationship Between Internet Ethics in University Students and the Big Five Model of Personality, 53 COMPUTERS & EDUC. 86, 86-93 (2009). 37. Fleeson & Noftle, supra note 16, at 1363. They note further that “Behavioral consistency arguably has been the most consequential issue in the history of personality psychology. It concerns the very existence and nature of personality; indeed, the presence of the field in psychology departments has waxed and waned with opinions about the true extent of behavioral consistency.” Id. at 1355. Fleeson and Noftle discuss various forms of behavioral consistency to create a “supermatrix of 36 consistency concepts.” Consistency can be differential (the funeral example), coherent (where superficially different behavior can in fact be understood as similar); ipsative (judged relative to one’s own behavior in other contexts as opposed to in relation to others); across time; and of contingencies (individuals “differ from each other in how they respond to situations . . . these differences are stable over time”). Id. at 1362.
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more than an introverted person in both circumstances. 38 This suggests that where a theory posits the desirability of a consistent form of behavior across a variety of circumstances, it is necessary to consider what personality traits would, in whatever complex way, correlate to that behavior. Other factors are also relevant. In a recent paper, David Matsumoto explains the complex interaction of forces that determine how individuals actually think or behave at any particular moment in time. 39 Situational factors and personality together determine behavior; however, situation and personality are themselves the product of a complex set of interacting factors, such as intelligence, disposition, universal psychological processes (e.g., fear), universal biological needs (e.g., food), and culture. Behavior is a combination of “basic human nature (via universal psychological processes), culture (via social roles), and personality (via individual differences in role identities) . . . moderated by the situational context which the individual is in and behavior is occurring.” 40 Put simply, what Matsumoto’s model suggests is that in talking about the individual inherent in any act prescription, it is important to recognize that it is not only personality, morality, and/or situation that will determine that individual’s actions. The individual’s affective states (including psychological processes such as fear), her intelligence, and her cognitive ability, will also affect how she responds to a particular circumstance, and how she chooses to act in that circumstance. The significance of cognition to decision-making was recently overviewed by Richard Thaler and Cass Sunstein, who related the extensive psychological literature on human cognition with the achievement of public policy goals that, they argue, too frequently rely on a false assessment of human cognitive capacities for successful implementation. Thaler and Sunstein distinguish between “humans” and “econs”: an econ being the person assumed by economists and policymakers who “thinks and chooses unfailingly well,” 41 and a human being the typical person limited by the cognitive tricks and tools we use to make decisions in our daily lives. Thaler and Sunstein note the complex interaction between our “automatic” and “reflective” ways of thinking about problems, and the role of heuristics or cognitive biases such as anchoring (the affect on conclusions from one’s given starting point), availability (the affect on conclusions from the information that is available and accessible), and representativeness (the affect on conclusions of relating and grouping categories of information). They 38.Id. at 1361. 39.Matsumoto, supra note 15, at 1304. 40. Id. 41. Thaler & Sunstein, supra note 14, at 6.
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also note the general human tendencies towards overconfidence, risk aversion, preferring the status quo, social conformity, and being influenced in analysis by how questions are framed. Thaler and Sunstein do not indicate the extent to which individuals are more or less subject to these cognitive biases, although Matsumoto’s analysis suggests there is likely some variability. They do, however, usefully highlight the broader point made by Matsumoto, that the cognitive capacities (or incapacities) of people will significantly affect how they behave. And for our purposes it is useful to consider whether, in articulating act prescriptions, theoretical legal ethicists rely on particular cognitive abilities – or, more precisely, on the absence of normal cognitive inabilities – in asserting an act prescription for lawyers to follow. From this point, incorporating Williams’ concept of moral dispositions, the Big Five personality traits, affective states, and cognition, we can set out a lexicon of terms potentially relevant to delineating the personal features of the ethical actor inherent in the various theories. It should be emphasized, though, that we use this lexicon simply to anchor our relatively impressionistic sense of the “how should the lawyer be” claims inherent in the act prescription we consider. We are not claiming that our analysis is empirically verifiable or demonstrable, and our use of empirically supportable descriptions should not be seen as an attempt to make it so. Moral dispositions: Universal dispositions such as courage, honesty, justice, respect for dignity and equality of others, as well as role dispositions or virtues, such as zealousness or fidelity. 42 Personality (the extent to which a person has or lacks these qualities): Agreeableness: “pleasant, equable, participative, cooperative, and inclined to interact with others harmoniously;” 43 Conscientiousness: “reliable, trustworthy, orderly, dependable, organized, and rule-following;”
42. Fidelity or “negative capability” is the role specific moral virtue identified by Daniel Markovits as crucial for making the work of a lawyer morally satisfying. See DANIEL MARKOVITS, A MODERN LEGAL ETHICS: ADVERSARY ADVOCACY IN A DEMOCRATIC AGE 11, 93-98 (Princeton University Press 2008). Markovits’ maxim of fidelity to client narratives should not be confused with fidelity to law, which one of us argues is the fundamental obligation of all lawyers. See W. BRADLEY WENDEL, LAWYERS AND FIDELITY TO LAW (Princeton University Press 2010) (forthcoming). 43. John W. Lounsbury, Ryan M. Smith, Jacob J. Levy, Frederick T. Leong & Lucy W. Gibson, Personality Characteristics of Business Majors as Defined by the Big Five and Narrow Personality Traits, 200 J. EDUC. FOR BUS. 201 (2009). All other personality definitions given here are quoted from the same source.
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Emotional stability: “overall level of adjustment and emotional resilience in the face of stress and pressure;” Extraversion: “sociable, outgoing, gregarious, warmhearted, expressive, and talkative;” Openness: “receptive to learning, new experiences, novelty, and change” Affective states: Calm, fear, empathy, sensitivity. Cognition: Reflective or automatic responses; reasoning; avoidance of cognitive biases in relation to information (availability, anchoring, receptiveness), the status quo, risk aversion, over confidence, social conformity and framing effects. III. A MORAL-PSYCHOLOGICAL READING OF LEGAL ETHICS THEORY. A. WHAT DO NORMATIVE LEGAL ETHICS THEORIES PRESCRIBE?: THEORIES AND APPLICATIONS
With this taxonomy in place, we can now use these concepts to critique some well-known normative theories of legal ethics. Making the discussion manageable requires some selectiveness in choosing the theories to discuss. There is no grand theory unifying our selection methodology, other than a sense of some theorists as especially representative and familiar. The approaches selected are from both sides of the long-standing academic debate over the standard conception of the lawyer’s role. One side of the academic debate represented here consists of critics of the standard conception – Simon and Luban – while the other consists of a defender of it – Fried. In what follows we will consider the general act prescriptions set out by each theorist and what those act prescriptions would specifically require in the context of a particular hypothetical, Simon’s extended example of a lawyer acting for a university in a case involving collective bargaining with a union local which arguably lacks proper certification. 44 We will also identify, using the categories identified previously, what type of person would be best able (most likely) to act in the way each theory prescribes. B. SIMON I. THE ACT PRESCRIPTION
In articulating the appropriate maxim of action for the ethical lawyer, Simon begins by rejecting categorical conceptions of the lawyer’s role as 44. See Simon, Ethical Discretion, supra note 1, at 1109-1113.
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libertarian 45 or regulatory. 46 He argues that the lawyer’s obligations should instead be understood as contextual and discretionary, leading to the over-arching maxim of action outlined earlier: a lawyer should “take those actions that, considering the relevant circumstances of the particular case, seem most likely to promote justice.” 47 This applies both with respect to client selection, where lawyers should choose clients based at least in part on an assessment of “their merits in relation to the merits of the claims and goals of others whom she might serve,” 48 and with respect to the conduct of a matter itself. When representing a client, the lawyer should attempt to “achieve the most appropriate resolution in each case,” reconciling “the conflicting legal values implicated directly in the client’s claim or goal.” 49 While other legal ethics scholars (notably Monroe Freedman) have urged lawyers to exercise moral discretion in selecting clients, 50 Simon’s theory is unique in its insistence that lawyers carry through this discretionary decision-making process to all aspects of an ongoing representation. The ethical obligation of a lawyer, according to Simon, is to “make her best effort to achieve the most appropriate resolution in each case,” 51 with appropriateness being understood in terms of the legal merits of the client’s position. 52 Legal merit is for Simon a substantive concept; 45. The unqualified duty to the client, with a corresponding jurisprudential claim that the law ought to be read narrowly, to avoid infringing on the liberty of citizens. Id. at 1085. 46. The unqualified duty to the system of laws, for example an obligation to further a process of truth-seeking. Id. at 1085-86. 47. Id. at 1090. 48. Id. at 1093. 49. Id. at 1096. 50. See MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS’ ETHICS § 4.02, at 82-83 (2d ed. 2002). For a subtle analysis of the moral complexities of client selection, see David B. Wilkins, Error! Main Document Only.Race, Ethics, and the First Amendment: Should a Black Lawyer Represent the Ku Klux Klan?, 63 GEO. WASH. L. REV. 1030 (1995). 51. Simon, Ethical Discretion, supra note 1, at 1096. 52. Id. at 1091. As Simon puts it, Error! Main Document Only.“The lawyer should take those actions that, considering the relevant circumstances of the particular case, seem most likely to promote justice.” Id. at 1090. Ordinarily one would understand justice (in the relevant sense) as a result that is consistent with what morality requires. See, e.g., RONALD DWORKIN, LAW’S EMPIRE 97 (Harvard University Press 1986) (“Justice is a matter of the correct or best theory of moral and political rights . . ..”). Simon seems to want to avoid defining justice in terms of congruence with the requirements of morality, and in places collapses the idea of justice into legal merit. See SIMON, THE PRACTICE OF JUSTICE, supra note 1, at 138. Elsewhere, however, his examples of injustice involve cases in which the client had a legal entitlement to do something morally wrongful. See, e.g., id. at 62 (noting the divergence between the “technical” rules respecting confidentiality and the intuitions of lawyers and clients regarding what justice requires). He also praises lawyers who are willing to bend or break the law where necessary to do justice. See William H. Error! Main Document Only.Simon, Moral Pluck: Legal Ethics in Popular Culture, 101 COLUM. L. REV. 421
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it is always possible, in principle, to determine whether a litigant has a meritorious case, without reference to the outcome actually achieved through the procedures of the legal system. Therefore, the first step in the exercise of discretion is for the lawyer to assess the reliability of those procedures in a given case and to determine whether they are likely to produce the meritorious result. Simon offers a kind of sliding-scale approach, in which a lawyer’s personal responsibility for achieving justice varies inversely with the expected capacity of the relevant procedures to do so: “the more reliable the relevant procedures and institutions, the less direct responsibility the lawyer need assume for the substantive justice of the resolution; the less reliable the procedures and institutions, the more direct responsibility she need assume for substantive justice.” 53 Thus, where a lawyer is acting against counsel who is ineffective, or where the opposing party cannot afford proper representation, that lawyer must take more responsibility for ensuring the substantive merits of the case than if counsel for the other side is competent and well funded. Where, for example, the plaintiff’s counsel has made an obvious error in the law in offering a settlement, and the content of the settlement would be substantively unfair – it does not “reasonably vindicate . . . the merits of the relevant claims” – the defense counsel must disclose the error. 54 The second step in the exercise of discretion is for the lawyer to consider the relationship between the purpose and form of the law. Where the purpose of the law is clear and unproblematic, the lawyer should consider herself bound by it, and should not pursue technical arguments that rely on the formal terms of the law where doing so would undermine that purpose; where, by contrast, the purpose of the law is unclear or problematic, the lawyer may treat the terms of the law more formally. 55 With respect to “problematic” purposes, Simon suggests that a purpose is problematic if it potentially infringes “fundamental legal values.” 56 Thus, where a welfare statute reduces by 25% the entitlement of a single mother with three children in the event that she receives free housing, a lawyer can use the “formal” solution of having the mother pay to her parents $5/month in rent so as to avoid the application of the law, since the law’s
(2001). Considering Simon’s overall position, with its emphasis on a flexible, noncategorical style of legal interpretation, and even occasional advocacy of outright nullification, the best understanding of justice in his theory is a substantive one, in which compliance with law is neither necessary nor sufficient for justice. 53. Simon, Ethical Discretion, supra note 1, at 1097-98. 54. Id. at 1099. See also William H. Simon, Role Differentiation & Lawyers’ Ethics: A Critique of Some Academic Perspectives, 23 GEO. J. LEGAL ETHICS XX (2010). 55. Simon, Ethical Discretion, supra note 1, at 1103. 56. Id. at 1104.
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purpose violates the fundamental value of ensuring a “minimally adequate income” to the claimant. 57 Simon’s final step in the exercise of discretion is with respect to the framing of the analysis of the appropriateness of a particular representation. Does one consider the appropriateness relative to a narrow question – e.g., whether the witness being cross-examined is in fact truthful – or relative to a broad question – e.g., whether the case which will be supported by undermining the cross-examination is meritorious overall? Simon argues that in determining the appropriate framing one can consider whether a factor is “implicated by the most plausible interpretation of the applicable law,” 58 whether it will have a “substantial practical influence” on the outcome, and whether you have sufficient knowledge of the issue to take it into account properly. 2. IMPLEMENTING THE ACT PRESCRIPTION
In explaining the lawyer’s duties Simon uses an extended example to demonstrate what his theory would require. 59 He posits a private university entering into collective bargaining with its clerical and technical workers. Formerly those workers had been part of a single bargaining unit but had recently merged with a larger industry bargaining unit also representing workers from other employers. The merger was unsuccessful, and the original unit had reconstituted itself for the purpose of entering into negotiations with the university. The reconstitution took place with the consent of the larger unit and with 5:1 support of the 57. Id. at 1106-07. The distinction between problematic and unproblematic purposes shows the Dworkinian roots of Simon’s position. Simon gamely argues that the U.S. Supreme Court has recognized a fundamental right to minimal subsistence; however, this right has been recognized only in some contexts (as Simon admits), and the Supreme Court’s welfare-rights jurisprudence has changed dramatically since the late 1960’s and early 1970’s cases he cites. See ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES §9.7.3 at 756-58 (2d ed. 2002). The foundation of Simon’s claim that the right to minimal subsistence is fundamental must therefore be the view, taken from Frank Michelman, that “the most plausible general theory of American constitutional democracy . . . impl[ies] or strongly suggest[s] a right to minimal subsistence.” See Simon, Ethical Discretion, supra note 1, at 1107 n. 55. In Dworkin’s terms, a legal norm must satisfy the demands of both fit and justification. See DWORKIN, LAW’S EMPIRE, supra note 51, at 255. As long as an interpretation satisfies a threshold requirement of fit, the judge’s decision becomes explicitly normative. “[H]e must choose between eligible interpretations by asking which shows the community’s structure of institutions and decisions . . . in a better light from the standpoint of political morality.” Id. at 256. There is no way to reach the conclusions Simon argues for, in his welfarerecipient and union-busting university (see infra) examples, without making this Dworkian move. 58. Simon, Ethical Discretion, supra note 1, at 1108. 59. See SIMON, THE PRACTICE OF JUSTICE, supra note 1, pp. 151-56; see also Simon, Ethical Discretion, supra note 1, at 1109-13. References here are to the problem as discussed in the article, but the treatment is the same in the book.
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reconstituted unit’s own prospective membership, in a vote participated in by 55% of prospective members. The reconstitution does not, however, comply with the requirements of a National Labor Relations Board certification process and arguably such a process was required because of an absence of sufficient continuity between the various bargaining units. The issue presented by Simon is whether the lawyer for the university can ethically pursue a strategy in which the university “refuses to recognize the local or to pay over dues to it under the ‘check-off’ provisions of the collective bargaining agreement,” insisting that absent a proper certification election the unit has no authority to represent the workers in the collective bargaining process. To put it colloquially, can the university use the formal rules governing collective bargaining to bust the union? Simon argues that the lawyer cannot do so. He notes that the delay and expense associated with a proper certification election creates a “procedural breakdown” which makes the lawyer responsible for assessing the “substantive merits” of the university’s position. And those merits are doubtful – the objections of the university are formal and technical, and do not relate to the real purpose of the certification election process, which is to ensure that the unit formed is properly representative. In these circumstances it seems fairly clear that the union has at most been careless, and “this carelessness does not seem to have prejudiced anyone.” 60 If anything, Simon suggests, the university’s conduct would “frustrate another relevant statutory purpose – to minimize employer disruption of union operations and intervention into union affairs.” 61 Finally, Simon rejects the argument that the university can justify its conduct through broad framing – through justifying its actions on the basis that “the local is in the hands of zealots who are out of touch with the membership.” 62 He says that such framing is inconsistent with the presumption of representativeness given to the union by the statute, and introduces matters that are considered irrelevant under the National Labor Relations Board legislation. In addition, the university is biased and generally not well positioned to assess the union’s relationship with its members. Overall, Simon concludes, “university counsel should frame the issue in relatively narrow terms that obviate judgments they are poorly situated to make.” 63 In articulating the example in this way there are some aspects of what the university’s lawyer would be required to do to comply with Simon’s act prescriptions which Simon himself does not emphasize, largely because of the limited purpose for which he uses the example. These 60. Simon, Ethical Discretion, supra note 1, at 1110. 61. Id. 62. Id. at 1111. 63. Id. at 1112.
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other aspects are nonetheless important to our analysis. For example, Simon’s theory would additionally require that the lawyer in question make an initial decision about whether she would take on the representation of the university at all – whether the claim of the university is meritorious relative to other matters she could pursue. In making this decision Simon would prohibit the lawyer from relying on economic imperatives, on the judgment of the firm within which she works or on the fact of prior representation of the client in another matter. Simon rather glibly states that the lawyer should ignore these things and take only substantive justice into account in making the representation decision. But economic returns and the collective judgment of the firm are the most important considerations from the firm’s point of view. 64 The lawyer is therefore in a position of being required to assert criteria for assessing relative merit, likely along the lines used by Simon to assess the limits on how she can advise the university if she takes the case. The analysis, properly conducted by Simon’s lights, would make it unlikely that the lawyer would ever choose to represent the university, except if it agrees to abandon its union busting approach. This may or may not be the right judgment on the substantive merits in the abstract, but of course lawyers do not practice in the abstract; they practice in institutional settings, working for organizations that have their own distinctive norms and values. 65 Simon requires his lawyer to swim upstream by making decisions on the basis of values that would probably seem alien to the management of a large law firm, and then insisting that the firm respect her somewhat idiosyncratic (by the firm’s lights) ethical decision. As we will discuss below, but as should be obvious to the reader by now, this presupposes a particular type of person – confident, self-actualized, not inclined to defer to hierarchical structures of authority, resistant to framing her own ethical decisions in terms of values that are salient within the organization, and so on. Simon’s ideal lawyer would also, in making her decision to represent the university and in deciding how to represent the university if she takes the case, have to act independently, without putting any particular weight on the client’s own conception of what justice requires. This is, of course, 64. This is not to suggest that law firms are explicitly indifferent to moral reasons, but as sociological studies have shown, the imperatives and incentives facing lawyers in large firms are primarily driven by economic considerations. See, e.g., Kirkland, supra note 27, at 664-78; see generally ROBERT L. NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM (University of California Press 1988). 65. See, e.g., Ann E. Tenbrunsel et al., Building Houses on Rocks: The Role of Ethical Infrastructure in Organizations, 18 SOC. JUST. RES. 285, 291-93 (2003) (arguing that informal structures, including “norms, heroes, rituals, language, myths, sagas, and stories,” convey messages about what is “really” appropriate in an organization, notwithstanding the presence of formal structures that may be more explicitly aimed at compliance with ethical norms).
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a central aspect of Simon’s critique of the standard conception, which instructs lawyers to defer to the evaluative decisions made by clients. At points in his analysis it is unclear whether Simon would have the lawyer follow a particular perspective on what constitutes merit in a given case, or whether Simon’s lawyer is permitted to support the client’s conception of merit, as long as it is plausible. 66 But through the union busting hypothetical Simon makes it clear that his analysis does not permit a lawyer to use loyalty to her client as a tie-breaker if there seem to be good legal arguments on both sides of a case – in this case the differing perspectives of the union and the university as to whether, in fact, the union is representative of its membership. This means that the lawyer must go against the grain not only within the firm, but must be willing and able to stand up to the client, declare that the client’s desired course of action runs contrary to justice (or at least is less meritorious than other causes the lawyer might pursue), and therefore that the lawyer is disinclined to represent such an unworthy client. Needless to say, it is a particular type of person who is likely to be able to make this sort of statement to a client. The lawyer cannot rely on loyalty and nor can she be agnostic to these competing claims. Instead, the lawyer must aspire to omniscience, placing herself in a position where she can make the appropriate judgments as to what justice requires. This is why she must adopt narrow framing, because it is only within such framing that she has the information necessary to assess what justice requires. Simon insists that lawyers make these judgments sub specie aeternitatis, 67 as it were, so that the lawyer’s commitment must be to impartial justice, not to a plausible conception of justice, favorable to the client’s view of things. This seems rather unrealistic in a world in which both clients and law firms are committed to a distinctive set of norms, not necessarily those of impartial justice. Organizations tend to coalesce around particular ends, and unsurprisingly in the business world the most important goal is making money – or maximizing shareholder value, to put it somewhat more sympathetically.68 66. Simon, Ethical Discretion, supra note 1, at 1124 (setting out the critique that “the bare notion of right cannot provide a basis for the lawyer’s decision, since there are rights on both sides.”). 67 From a universal or impartial perspective. 68. See, e.g., Saul W. Gellerman, Why ‘Good’ Managers Make ‘Bad’ Ethical Choices, HARV. BUS. REV., Jul.-Aug. 1986, at 85, 88; Ronald R. Sims & Johnannes Brinkman, Enron Ethics (Or: Culture Matters More Than Codes), 45 J. OF BUS. ETHICS 243, 243 (2003). In a well known article, Ann Tenbrunsel and David Messick argue that ethical decision-making is affected, as a matter of cognitive psychology, by the framing or coding of decisions in terms of values that are particularly salient within an organization. As a result, ethical values “fade” from the decision-making process, and managers think through a problem solely in terms of economic considerations. Ann E. Tenbrunsel & David M. Messick, Ethical Fading: The Role of Self-Deception in Unethical Behavior, 17 SOC. JUST. RES. 223, 224, 228-229 (2004).
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There is no reason to believe that lawyers are better monitors of compliance with the norms of justice or morality than managers of a corporate client. 69 Simon, however, appears to believe that a lawyer will be in a position to make more reliable judgments about the requirements of justice than the lawyer’s client is able to make. This much is implicit in his insistence that the lawyer take responsibility for the decision to accept a particular representation. Simon’s hypothetical does not tell us the circumstances in which counsel for the university works. For Simon, these circumstances are irrelevant, because he places the primary – perhaps exclusive – responsibility on the individual lawyer to determine whether to proceed with the representation and how to do so in order to ensure the most appropriate resolution. There is little explicit recognition in Simon’s account that lawyers practice in organizations with a division of labor and a hierarchical structure in which they may have limited ethical responsibilities. Simon might acknowledge that if intra-firm procedures for resolving ethical questions were reliable, then a lawyer within an organization would be justified in deferring to them. 70 But ultimately the lawyer in Simon’s model retains individual responsibility, and if the processes are not reliable, or she doubts the judgment of others within her organization, she must make her determination along the lines that Simon has outlined, and either refuse to represent the university or, if she does represent them, refuse to go along with their unjust union busting strategy. It also follows from Simon’s example, although again implicitly, that the university lawyer must have a well developed and sophisticated capacity for jurisprudential analysis, and maybe even moral and political theory more generally. In identifying what the university lawyer should do Simon posits that the lawyer will be able to determine the purpose of the National Labor Relations Board statute and associated regulatory scheme (with all its interpretive history). She will understand the relationship between the legislation’s purpose and the technical rules, and know within a specific factual context whether a particular action not only complies (or breaches) the technical rules, but how it additionally relates to the broader purpose as she has identified it. Simon’s analysis of the relationship between process and substance, purpose and form, and broad and narrow framing within the union busting example is persuasive as an example of legal reasoning; it also, though, glosses over what goes into being able to make assessments of that kind, and the difficulty of doing so given that the legislative scheme almost certainly has competing and 69. See Donald C. Langevoort, Monitoring: The Behavioral Economics of Corporate Compliance with Law, 2002 COL. BUS. L. REV. 71, 76 (2002) [hereinafter Langevoort, Monitoring]. 70. Simon, Ethical Discretion, supra note 1, at 1097-98.
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occasionally irreconcilable purposes, and the relationship between particular provisions and those purposes may be opaque in general and in particular given complex and contested factual circumstances. Simon grants no leeway to the lawyer, refusing to condone reliance on the client or anyone else (including the judgments about justice embodied in legal norms), instead making the rendering of such jurisprudential judgments the heart of the lawyer’s ethical obligation. It is through this jurisprudential analysis that she will succeed (or fail) in doing those acts most likely to result in justice, impartially considered. The lawyer is not to act as if she occupies the role of judge or prosecutor, but she is to follow that “style of judgment” 71 in making her decision. Most significantly, Simon’s lawyer is not relieved of the obligation of deciding what justice requires by the fact that the law permits something. Reasoning in this way would be impermissibly categorical, which is the principal target of Simon’s critique. As he emphasizes in the introduction to The Practice of Justice (the core argument of which is contained in the paper we are discussing here), legal ethics must carry through the rejection of formalistic, categorical, and mechanical ways of thinking that have been developed by legal scholars in other contexts. 72 Again, this approach reflects the Dworkinian heritage of Simon’s theory. Simon’s lawyer is very much intended to be the counterpart to Dworkin’s ideal judge Hercules, who is called upon to construct a coherent political-normative account that explains and justifies the holding in any given case. 73 Like Hercules, Simon’s lawyer may be an ideal only, but like Dworkin, Simon intends his lawyer to reason in this way when the exigencies of the case demand it. Routine cases may be suitable for relatively categorical deliberation, but in a genuine ethical dilemma, Simon’s lawyer must be attentive to the considerations of substance and form, broad and narrow framing, problematic versus unproblematic purposes, and so on. 3. HOW SHOULD SIMON’S LAWYER BE?
Simon’s lawyer is, in a word, a maverick. She is confident in her own judgments, disinclined to defer to institutional authority and procedures, and willing to ruffle feathers. Notwithstanding the permission granted by the disciplinary rules to defer to the reasonable instructions of her supervisory lawyers, 74 a lawyer who adheres to Simon’s conception of ethical lawyering would give virtually no deference to lawyers above her in the chain of command. Why should she, when Simon has insisted that 71. Id. at 1091. 72. SIMON, THE PRACTICE OF JUSTICE, supra note 1, at 3. 73. For the description of how Hercules decides a case on the recoverability of damages for emotional distress, see DWORKIN, supra note 51, at 238-54. 74. The Model Rules permit a lawyer to follow the reasonable instructions of a superior. MODEL RULES OF PROF’L CONDUCT (2002), Rule 5.2(b) [hereinafter MODEL RULES].
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lawyers be reluctant to defer to the resolution of a court or other tribunal, absent a reason to believe that the adjudicator is likely to decide the case fairly? 75 To put it slightly differently, Simon’s lawyer is not motivated by pleasing others, or the approval of those in her immediate area. She must not be motivated by the fact that her colleagues and client will be angry if she decides not to proceed with the case or fails to follow the client’s instructions on matters like resisting the union’s claims. She is also relatively free of the cognitive phenomena of framing decisions in terms of locally salient narratives and norms. 76 This is a remarkable feat given the findings of social psychologists, who have shown that individuals acting in groups tend to take cues from those around them when interpreting ambiguous situations. 77 Simon’s lawyer must also be hard-working, doing nothing by rote or rule, but questioning in every instance the justice of her actions. She must take every case on as a new challenge or problem, resisting the embracement of the routine or ordinary, or a sense of life as defined by the role she chose to take on. She can never simply identify the rules and follow them. To do so would be a kind of bad faith action, because Simon insists that the justice of a particular legal norm is at best presumptive, and a lawyer must always inquire into whether a statute or regulation, for example, should be interpreted formalistically or purposively, whether the underlying purpose is “problematic” in relation to fundamental values, whether the inquiry should be broadened to include related legal norms, and so on. Somewhat more pragmatically, Simon’s lawyer must put in all of this work without expectation of being able to bill clients for it, which runs counter to the most basic of incentives facing lawyers in large firms: to bill as many hours as possible. The ideal Simonian lawyer is also a person of awesome cognitive capabilities, and not just because of the enormous demands placed upon her by Simon’s contextual approach to legal interpretation. She almost certainly operates largely in the reflective not automatic cognitive mode, 78 and will be able to overcome cognitive biases that would otherwise arise from the fact that the information she receives will come from her client, and tend to favor resolution of issues as the client sees them. She will also 75. Simon, Ethical Discretion, supra note 1, at 1101-02. 76. See Tenbrunsel & Messick, supra note 66, at 228. 77. See, e.g., John W. Darley, The Cognitive and Social Psychology of Contagious Organizational Corruption, 70 BROOK. L. REV. 1177, 1186 (2005); David M. Messick & Max H. Bazerman, Ethical Leadership and the Psychology of Decision Making, 37 SLOAN MGMT. REV., Winter 1996, at 39, 39-56. 78. See Darley, supra note 75, pp. 1182-83 (summarizing recent research in the psychology of judgment and decision-making, showing that “acts that can originate unethical chains of occurrences arise from the quick decisions that are products of the intuitive judgment system”).
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be able to overcome the cognitive biases that arise from our desire to conform with those around us, and the preference for the status quo – ‘how things are done around here.’ 79 Internal organizational imperatives, such as building a reputation as a team player, will be less important to her than doing the right thing by the standards of impartial justice. She will not be risk adverse or prone to the optimistic belief that, even if she does not take responsibility for her actions, things will work out fine in the end. Finally, Simon’s lawyer does not need any particular moral commitments or views of her own, only the ability to analyze the moral commitments imbedded in and underlying the legal system within which she works. Simon’s work is not a plea for conscience or moral integrity – it is essentially an argument for fidelity to law, albeit one in which “law” is understood in a highly moralized way. Accordingly, the ideal Simonian lawyer must be able to identify those instances in which the law’s purposes are problematic in relation to its “fundamental values” but she herself does not need to decide what those fundamental values should be, only what they are. Like Dworkin’s imaginary judge Hercules, Simon’s ideal lawyer must inquire into the deep structure of the community’s law to determine which apparent legal entitlements are just (or meritorious, as he sometimes puts it) and which are formally valid but not to be respected by a “contextual” lawyer. 80 A lawyer following Simon’s contextual view should be concerned with uncovering those values that are immanent in the community’s legal and political practices, not with expressing and acting upon her own moral commitments. 81 In terms of our taxonomy, then, Simon’s lawyer should be disagreeable (since being “participative, cooperative, and inclined to interact with others harmoniously” are positively undesirable in this context), conscientious in the sense of hard working but not in the sense of rule-compliant, emotionally stable, introverted, open to experience, fearless, calm, cognitively reflective and rarely automatic, free of cognitive biases, and highly intelligent. The question to be considered in Part IV, after first setting out the other normative theories, is whether this personality has maladaptive versions, unintended consequences, is realistic, creates the possibility for an ungovernable profession, or is incapable of a healthy existence within an institutional context. In other words, we have set up a new object of critical scrutiny – the person who is 79. But see Joseph L. Badaracco, Jr. & Allen P. Webb, Business Ethics: A View from the Trenches, 37 CAL. MGMT. REV., Winter 1995, at 8, 18 (arguing that considerations of pleasing superiors, building a good reputation, being a team player, and not rocking the boat are significantly more important in ethical decision-making in organizations, as compared with “corporate credos, the exhortations and examples of senior executives, or philosophical principles or religious reflection . . .”). 80. See DWORKIN, supra 51, pp. 260-63. 81. But see Vischer, supra note 9.
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Simon’s ideal lawyer – and we may be able to assess Simon’s theory as more or less normatively attractive based on how stable, functional, and attractive the personality is which follows from his act-prescriptions. B. LUBAN 1. THE ACT PRESCRIPTION
Like Simon, David Luban’s act prescription orientates towards the agency of the individual lawyer. Luban’s concern is not, however, with articulating the appropriate conception of the lawyer’s role, but is instead with the question of how lawyers reconcile fundamental moral obligations with the demands of their professional role. Roles for Luban are the moral problem, not its solution; a role does not answer the question of the right thing to do, all things considered. 82 Luban quotes William Whewell (author of a widely used nineteenth century treatise on ethics) as insisting that “[e]very man is . . . by being a moral agent, a Judge of right and wrong . . . This general character of a moral agent, he cannot put off, by putting on any professional character.” 83 We must therefore always evaluate role-specific obligations from the perspective of a “pure” moral agent, unencumbered by roles, except to the extent there is a good moral reason for occupying roles and accepting their associated responsibilities. The persistence of agency implies, in turn, that roles are transparent to moral analysis. And the transparency of roles demands that a moral justification for an action taken within a role must be given all the way down, until it rests on some basic moral value. From this, Luban, like Simon, makes claims with respect to both for whom the lawyer should act, and in what way. With respect to choice of clients, Luban argues that a lawyer always remains fully morally responsible for the causes he represents; a lawyer must assess potential representations against standards of ordinary morality and represent those clients whose causes are most consistent with ordinary moral norms. With respect to the manner in which a lawyer conducts a representation, Luban argues that any appeal to role-specific obligations as an excuse from criticism in ordinary moral terms must satisfy a process of justification. 84 Specifically, the lawyer must consider the moral justification for her institutional role – that of partisan advocate, morally neutral to her client’s ends – in the circumstances. In the context of criminal defense work, that 82. Compare Simon’s claim that his position “rejects the common tendency to attribute the tensions of legal ethics to a conflict between the demands of legality on the one hand and those of nonlegal, personal or ordinary morality on the other.” Simon, Ethical Discretion, supra note 1, at 1113-14. 83. LUBAN, supra note 3, at 19. 84. DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 129-33 (Princeton University Press 1988).
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moral justification is strong, and acts as a counter-weight to other moral claims – such as truth telling or the pursuit of substantive justice. In the context of civil litigation or advising, however, that moral justification is much less strong, and consequentially does much less work in rebutting other moral claims. In the end, all the lawyer obtains from her professional role is a presumption that what the role requires is the right thing to do, a presumption which can and should be rebutted when it is in error, or when other moral claims are more significant: All I am insisting on is that the standards by which such judgments [about the right thing to do] are made are the same for lawyers and for nonlawyers. If a lawyer is permitted to puff, bluff or threaten on certain occasions, this is not because of the adversary system and the Principle of Nonaccountability, but because, in such circumstances, anyone would be permitted to do these things . . . . The adversary system and the system of professional obligation it mandates are justified only in that, lacking a clearly superior alternative, they should not be replaced. This implied, I have argued, a presumption in favor of professional obligation, but one that any serious and countervailing moral obligation rebuts. Thus, when professional and serious moral obligation conflict, moral obligation takes precedence. When they don’t conflict, professional obligations rule the day. 85
The professional role should always be “transparent” to the claims of ordinary, non-professional morality, in the sense that the obligations of a role may be understood as summing up the requirements of morality in a shorthand way, but do not supplant them. 86 2. IMPLEMENTING THE ACT PRESCRIPTION
Luban would say that the fundamental task for the university lawyer in Simon’s hypothetical is, then, to understand what the traditional “role” of counsel would require, and to assess that obligation against the claims of ordinary morality. She will begin by observing that she is under no role obligation to act for any particular client. That means, therefore, that the ethics of her choice will depend purely on her assessment of the moral validity of the client’s goals. And, unlike the lawyer following Simon’s act prescription, her consideration of moral validity need not be limited to those moral values instantiated, however imperfectly, in the legal system. What moral values might be at issue in this case? Respect for the dignity of the union employees, the right of employees to a fair wage, the 85. LUBAN, supra note 3, at 63. 86. LUBAN, supra note 82, at 125 (“[T]he appeal to a role in moral justification is simply a shorthand method of appealing to the moral reasons incorporated in that role.”).
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autonomy interest to choose whether or not to be in a union through a fair process, property rights of employers, and values such as “honesty and fair play” 87 which may be violated by attacking the representativeness of a union which the university and the lawyer believe is, in fact, representative. At the end of the day, the university lawyer will have to determine where her own moral values lie – what she believes, for example, about the moral validity and desirability of unions, and of the duties and obligations that labor laws place on employees and employers – and decide whether this cause is one she believes is morally virtuous, and worthy of her time and energy. 88 Assuming that she does act for the university, the university lawyer must then determine what her role requires. On a conventional reading – and notably this is what Simon seems to be responding to – her obligation as counsel is to pursue the good faith legal entitlements of her client, which in this case include the right to require the union to have been properly certified prior to treating it as representative of employees. Doing so privileges process and form over substance and purpose, as Simon notes, but under the standard conception of the lawyer’s role, pursuing process and form is something a lawyer ought to do if her client wishes it. As Luban notes, though, following that conception in this context – which involves civil interests and, particularly, the interests of a relatively powerful social organization as opposed to one that is less powerful, both institutionally and in terms of those it represents – can claim little independent moral justification.89 The university lawyer must, therefore, give only a mild presumption in favor of the pursuit of her professional obligation to represent the university in this way, and must pay serious attention to the claims of ordinary morality. What might those claims be? As noted with respect to client selection, they could include respect for the dignity of the union members, in the form of respecting their choice to be represented by the reconstituted local; they could include opposition to all union initiatives as 87. Daniel Markovits argues, rather idiosyncratically, that the role of lawyer demands pervasive lying and cheating, where those terms are defined, respectively, as promoting beliefs personally rejected as false, and obtaining unjustified advantages. See DANIEL MARKOVITS, supra note 41, at 3-4. One need not accept the claim in the strong form defended by Markovits to see the point that the structure and function of a professional role can impose demands that are inconsistent with the requirements of ordinary morality. 88. To say the lawyer must determine where here own values lie is not to suggest that moral values are subjective. It may be the case (as one of us has argued at length) that moral values are objectively plural. As a result, one could expect reasonable disagreement over how various competing values should be prioritized. See WENDEL, supra note 41, at Ch. 2. 89. In Lawyers and Justice, Luban argues that the moral justification of criminal defense advocacy may carry over to representation of individuals against powerful corporate or organizational interests. LUBAN, supra note 82, at 157.
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a violation of the employer’s autonomy or property rights; they could include commitments to honesty and fair play – focusing on what would be involved in using procedural and formalistic arguments to defeat what the lawyer in fact believes to be substantively just. In the end, how the lawyer represents the university will depend on her assessment of these competing moral claims, and on what she believes is morally justified in the circumstances. Luban’s theory likely gives the lawyer some leeway to factor in the university’s own assessment of the moral circumstances, but only insofar as the assessment made by the university is in fact a moral one, and not simply a self-interested pursuit of its economic interests. 3. HOW SHOULD LUBAN’S LAWYER BE?
Luban’s ideal lawyer bears some relationship to Simon’s, in that she is willing to make, and capable of making, complex multifactorial judgments about what she ought to do, with relatively little reliance on roles, rules, or the directives of institutional authorities. She must be highly – perhaps even radically – individualistic in her approach to decision-making. Like Simon, Luban is extremely mistrustful of claims of authority to obedience. “If moral agency divides along lines of institutional authority,” he writes, “it seems to me that every agent in the institution will wind up abdicating moral responsibility.” 90 Lawyers must constantly be aware that they as individuals, not institutions, ultimately bear moral responsibility, and that it is a kind of bad faith to rely on others for guidance in morally ambiguous situations. 91 Luban’s act prescriptions arguably go even further than Simon’s in this respect, however, due to the explicitly moral nature of the analysis. While both Luban and Simon arguably permit some respect for the institution of legality as a source of moral authority – that is, for the argument that the fact that something is permitted by the laws of a free and democratic society is, in and of itself, a reason to view it as morally permissible, also – for Luban that respect is always qualified and subordinate to his assertion that, in the end, the claim to have acted morally requires compliance with what morality itself demands. Put simply, Luban argues that institutional views of morality cannot trump those of the individual moral agent. 92 Accordingly, this requirement of moral compliance places additional demands on Luban’s lawyer. Lawyers are famously averse to talking
90. LUBAN, supra note 3, at 46. 91. Id. at 295-96. 92. Simon may not accord more respect to institutional views given his position that a lawyer can disregard purposes that are “problematic” given fundamental values; on the other hand, fundamental values may incorporate some institutional moral assessment, such as constitutional values.
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about morality per se, as distinct from illegality or practical downsides. 93 One of the findings of the study commissioned by the ABA Section on Litigation of the ethics of large-firm lawyers was that lawyers believed that clients did not want moral advice from their lawyers. As one respondent put it, “[the client] can go talk to his minister if he wants moral advice. That’s not why he’s coming to you.” 94 Another lawyer said, “I personally would have a problem even conveying my own view of the morality of the situation to a client. I think morality is a very slippery concept, primarily in the eye of the beholder.” 95 As a consequence, Luban’s lawyer will be required to think and justify her actions in terms of a conceptual vocabulary that is disfavored in the environment in which she works. It may be possible to translate ethical qualms into pragmatic arguments, such as the possibility of reputational penalties, 96 but this process of translation would force Luban’s lawyer to give up the distinctive responsibilities of moral agency that are such a central feature of his theory. Like Simon’s lawyer, Luban’s lawyer must therefore have a degree of independence of thought, and a disregard for the fact that her opinions will be unpopular in the institutional and professional context within which she works. She must not be afraid that she will lose her client and perhaps her job. While the complexity of the analysis in which she must engage seems less onerous than Simon’s in the first instance, it is also quite significant. Assessing the moral justification for institutional roles in general, and then the relationship between that moral justification and the moral claims that arise in the particular circumstances of actions within the institutional role, is no small feat of cognitive engagement, particularly considering that many lawyers do not have specialized training in the kind of philosophical analysis this calculus would require. Most significantly, this lawyer must also possess basic virtues consistent with ordinary morality – empathy, honesty, fair play, justice, respect for the dignity and equality of others. She must be sensitive to the circumstances in which those virtues are implicated and capable of the practical judgment necessary to pursue those 93. See Mark C. Suchman, Working Without a Net: The Sociology of Legal Ethics in Corporate Litigation, 67 FORDHAM L. REV. 837, 843-46 (1998) (distinguishing ethical pragmatism from ethical moralism, and noting that the lawyers studied assumed that the requirements of rules of professional conduct were coextensive with pragmatic concerns). 94. Robert L. Nelson, The Discovery Process as a Circle of Blame: Institutional, Professional, and Socio-Economic Factors that Contribute to Unreasonable, Inefficient, and Amoral Behavior in Corporate Litigation, 67 FORDHAM L. REV. 773, 780 (1998). Another lawyer in the study echoed this comment, saying: “I don’t want to have a moral dialogue. The client didn’t hire me to be a philosopher. If he wants that kind of advice he can go to a priest.” Austin Sarat, Enactments of Professionalism: A Study of Judges’ and Lawyers’ Accounts of Ethics and Civility in Litigation, 67 FORDHAM L. REV. 809, 819-20 (1998). 95. Nelson, supra note 63, at 780. 96. Suchman, supra note 91, at 844.
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virtues in particular circumstances. She must, therefore, be reflective rather than automatic in her assessments, and able to avoid most forms of cognitive bias. Indeed, Luban devotes several chapters of Legal Ethics and Human Dignity to considering the cognitive challenges faced by the ethical lawyer, and the steps she can take to reduce the pitfalls posed by, for example, the tendency towards reducing cognitive dissonance. In terms of her personality traits and emotional responses, she must be conscientious and disagreeable, and above all fearless, even in the face of the incomprehension and hostility with which her ethical judgment may be received. C. FRIED 1. THE ACT PRESCRIPTION
As noted earlier, Charles Fried is a defender of the standard conception of the lawyer’s role; to Fried the lawyer’s role is inextricably bound with the right of any individual to access the legal system, and to be free from unwarranted state interference. 97 As a consequence, he believes that the lawyer has no moral obligation one way or another with respect to client selection – every individual navigating the legal system is, in the relevant sense, morally worthy of representation. Fried’s analogy is distracting, 98 but his point that the legal system creates a “limited-purpose friend,” called a lawyer, makes a normative claim that the lawyer’s role is necessarily understood in terms of the values that underlie real friendship, namely recognizing the intrinsic dignity of all persons. 99 In this sense Fried stands very much in opposition to Simon, who sees client selection as a decision that must be made with reference to criteria of distributive justice. For Fried, that style of lawyering would be a sacrifice of the interests of a concrete other to the demands of the collectivity.
97. Fried, supra note 6, at 1073. 98. Id. at 1078. Fried’s theory is easily misunderstood because of his analogy with friendship to describe the moral worth of the lawyer-client relationship. It is easy to poke fun at the analogy if it is understood literally; critics have frequently observed that if one person pays another to form a close relationship, the best analogy is prostitution, not friendship. More substantively, the moral quality of a real friendship is bound up with a shared history and bonds of affection, which cause friends over time to regard the interests of the other as on a par with their own interests. That is why friends are authorized to “take the interests of concrete persons more seriously and to give them priority over the interests of the wider collectivity.” Id. at 1066. 99. Stephen Pepper’s theory is similar in many respects, and can be considered here alongside Fried’s. Pepper argues that the role of the lawyer has to be understood in terms of “a societal commitment to the principle of individual autonomy.” Pepper, supra note 5, at 616. Individual autonomy would be limited if citizens were unable to understand their legal entitlements (i.e. the extent of their liberty to act without wronging others) because expert legal advice was withheld on the basis of a lawyer’s belief that the citizen’s proposed course of action is immoral. Id. at 617.
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With respect to the manner of representation, the dominant maxim of action for Fried is that the lawyer should be loyal to his client, and should exercise the law to its fullest extent on behalf of his client, even if this means “procur[ing] advantages for the client at the direct expense of some identified opposing party.” 100 Loyalty does not excuse illegal acts by the lawyer; it permits the lawyer to challenge governing institutions, but not to defy them. It also does not excuse immoral acts that are not required for effective representation of a client. Thus, Fried suggests, challenging a witness in court is morally acceptable, but humiliating a witness is not. Conversely, though, immoral acts of the client committed through the lawyer do not implicate the lawyer’s own morality. If a client lies on the stand or in negotiations, the client commits an immoral act but the lawyer does not do so, even though he is present at the time. A lawyer may encourage a client to do the right thing but he is under no moral obligation in that respect. 2. IMPLEMENTING THE ACT PRESCRIPTION
For the university counsel to implement Fried’s act prescription is straightforward for anyone steeped in the norms that currently govern the work of lawyers. The university has legal claims, and the counsel who pursues those claims can assert that she has done something worthwhile, morally speaking. Nothing the university is asking the lawyer to do is illegal or subversive of the institutional norms of the legal system – the lawyer must simply identify the rights and duties arising from the terms of the collective bargaining legislation, and exercise the rights that the university has, whether formal, purposive, substantive, or procedural. In this case it appears that those rights include the right to insist that the union have a proper certification election. The morality of so doing, and its relationship to the underlying purpose of the legislation, do not need to motivate the lawyer’s analysis or advice. The complexity for the lawyer providing this advice is that she has to subsume her own moral judgment and assessment of the case – any sympathy she has with the union, for example – in order to pursue her client’s interests. She must not allow personal moral qualms to restrict what she does on behalf of her client. 101
100. Fried, supra note 6, at 1062. 101. Id. at 1083-84. This discussion shows why Fried’s friendship metaphor is dangerous, unless it is understood as he intends, as a “special purpose” or “legal” friendship. Id. Fried notes that considerations of personal integrity would limit one from lying, cheating, or humiliating others in the interests of a friend. However, the special kind of legal friendship “is occasioned by the right of the client to exercise his full measure of autonomy within the law.” Thus, “one must not transfer uncritically the whole range of personal moral scruples into the arena of legal friendship.” Id. Bev must be
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3. HOW SHOULD FRIED’S LAWYER BE?
As noted, the act-prescriptions entailed by Fried’s theory are familiar to practicing lawyers. The imperative of client loyalty is perhaps the dominant ethical norm in contemporary law practice in common law countries. The actor capable of filling this role is, therefore, likely to be consistent with our conception of the normally competent and rule compliant legal practitioner. She will be intelligent enough to understand and comply with the requirements of the law governing lawyers. She will be empathetic in listening to her client’s concerns, and have the skill to translate potentially inchoate interests into legally cognizable terms. She will be non-judgmental, and willing to take certain steps even if she personally views them as morally dubious. She will need, in this respect, a strong moral commitment to role-specific moral norms like zeal, partisanship, and loyalty to clients. In order to maintain this moral perspective she will need to be skeptical of truth claims, so that she can accept the possibility that an issue can legitimately be approached in a variety of ways, and that what constitutes truth may not be clear. This will allow her to effectively advocate for positions she might not personally be committed to, and to undermine the credibility of truthful witnesses. She will need to be fairly aggressive, and to enjoy the challenge of bringing a case forward successfully, even where it is not likely to succeed. At the same time, in order to respect her own status as a moral agent within her role, she needs to have sufficient judgment and moral sensitivity to determine those actions which are not permissible, that constitute personally immoral action, rather than the morally appropriate pursuit of her client’s legal interests. 102 Unlike Simon’s lawyer, Fried’s lawyer can work within the constraints of an organization, and is free to take into account the perspective of others in deciding which clients to represent. In addition, rule compliance can be a strongly governing disposition for Fried’s lawyer. If the law governing lawyers forbids the university counsel from acting in a particular way, Fried’s theory also requires that she not act in that way. In this sense Fried’s theory is notably distinct from Simon and Luban, both of whom in different ways appear to countenance or require non-compliance with rules where necessary for the pursuit of legal merit (justice) in substance or for compliance with ordinary morality. As also noted, however, the practicing lawyer’s familiarity with the norms Fried endorses should not result in underestimating the challenges careful, therefore, not to assume that just because some action would be wrong if done in ordinary moral life, it is also wrong when done in a representative capacity, as a specialpurpose friend, on behalf of a client. 102. Lawyers are permitted to withdraw from representing clients if the lawyer would regard the continued representation as repugnant. MODEL RULES, Rule 1.16(b)(4).
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for an ordinarily ethical person in taking on that role. An attitude of skepticism towards truth claims, and a willingness to take steps which violate norms of ordinary morality, may push the lawyer towards a position of amorality, towards not taking any moral stand because it may undermine the lawyer’s ability to pursue her client’s interests zealously. It also creates the possibility for a dis-integrated life, in the sense noted by Postema, of a lawyer required to take one moral position in one context and a radically different one in another context. In a case like this, for example, the university counsel may have a moral perspective on collective bargaining, and nonetheless be required as a Fried-ian lawyer to subsume that perspective in her representation. Adopting the role of zealous advocacy may also push the lawyer towards being non-judgmental to the point of having no judgment at all. 103 Fried’s lawyer is instructed to make sure that she does not take personally immoral action, but since much of the lawyer’s function is to reserve judgment and to adopt her client’s position, this can place the lawyer in tricky cognitive territory. Viewed taxonomically, Fried’s lawyer will be rational. She probably needs a certain degree of reflective cognitive ability, but because she is operating within the status quo and in harmony with her peers, she can also employ automatic responses and be effective even if operating under some cognitive biases. She will require emotional resilience in the face of stress and pressure, although she requires less of this than Simon or Luban’s lawyer, because she typically acts consistently with the institutional demands of those around her. A certain amount of neuroticism may be functional within her working life. She will need a high degree of openness, a willingness to accept the differing experience of practicing law as opposed to how she lives the rest of her life. She may need to be extraverted, although introversion is probably functional in this context. In terms of her moral dispositions, she will have a weak or constrained commitment to ordinary moral values and a stronger commitment to the role specific moral values of fidelity and zeal. She must be able to accept or live with a level of dis-integrity in her moral person, and be willing to be highly contextual in her moral analysis. IV. HOW DO WE WANT LAWYERS TO BE? A. IS THIS THE KIND OF PERSON WE WANT LAWYERS TO BE?
The most familiar debate in legal ethics involves a critique of theories, such as those of Fried, Simon, and Luban, in terms of their attractiveness as maxims of action. Simon’s act prescriptions, for example, can be critiqued on the basis that they require a reasoning style that is at odds 103. Which appears to be the aspect of the standard conception that troubles Luban most significantly.
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with the expectations of clients, and may result in the disregarding of client interests if they happen not to coincide with the discretionary judgment of the lawyer in question.104 Moreover, the act prescriptions of Simon’s theory give insufficient weight to the procedural norms and ideals which justice arguably constitutes. 105 His theory is relentlessly focused on substantive justice. This position leaves little room to recognize the possibility that what we call justice, and what we as lawyers should aim for, is what results from the procedures of the legal system and is not a concept that identifiably exists outside of those procedures and constraints. 106 On the other hand, Fried’s act prescriptions can be critiqued on the basis that they result in the perpetuation of distributive injustices, simply cementing existing social disparities. 107 The critiques offered from a dispositional or psychological perspective are, however, of a different nature. The point here is not to ask whether the acts prescribed, if accomplished, would be desirable. But is to ask whether the type of lawyer who would be able to accomplish those acts in a given case is the type of lawyer we would want to have across every case, across the totality of the legal system as a whole. Further, it is to ask whether, even if desirable, the type of lawyer posited is realistic. Simon and Luban, for example, rely on lawyers to be relentlessly focused on justice or morality. This may be how we think lawyers should be, but is it the equivalent of wanting basketball players who are 12 feet tall? Each theory faces some uncomfortable questions when analyzed in this way. For Simon, the major challenge for his theory is that the maverick nature of Simon’s lawyer has an obvious maladaptive version. In its (perhaps) best conception, it may simply make the lawyer more like a critic or academic and less like an advocate. In its worst conception it turns the lawyer into the equivalent of a whistleblower. As sociological studies of whistleblowers show, the maladaptive version of Simon’s
104. Cf. Robert W. Gordon, The Radical Conservatism of The Practice of Justice, 15 STAN. L. REV. 919, 928 (1999) (worrying that Simon’s tool-kit will be used for ill by lawyers for powerful clients). 105. Simon has criticized the Ideology of Advocacy (his term in his 1978 paper for the standard conception) for making a fetish out of “formal, established institutions and practices” for the resolution of conflict. William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29, 119-20 (1978). In his view, social conflict arises not only with respect to substantive conceptions of the good, but also with respect to the procedures used to resolve these conflicts; his concern is therefore that legality obscures the conflicts inherent in procedural ordering, and renders citizens passive in the face of authority. Id. at 123. 106. See, e.g., STEWART HAMPSHIRE, MORALITY AND CONFLICT (Harvard University Press 1983). 107. See, e.g., SIMON, THE PRACTICE OF JUSTICE, supra note 1, at 109 (“Fried explicitly tries to infuse with pathos and dignity the financial problems of the tax chiseler and the ‘disagreeable dowager.’”).
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lawyer is not the “hysterical malcontent” of stereotypes, 108 but someone for whom individuality is a defining fact of life. The “unassimilated individual” 109 is not necessarily the best building block for a stable and functional organizational culture. Research by business ethicists and social psychologists shows that organizational cultures may be much more important, as a determinant of behavior, than the personal characteristics of individuals within the organization. 110 Individuals are susceptible to biases and other cognitive failings, which predictably cause certain kinds of dysfunctions within organizations. 111 Organizational cultures can be designed to blunt the impact of some of these psychological processes. 112 Assuming that it is possible to reform the cultures of law firms, government offices, and in-house legal departments, the last thing one would want in a lawyer is a disposition to regard established rules and procedures as optional guidelines, to be disregarded whenever the lawyer believed justice or morality would be better served. The whole point of rules and procedures is to supplant individual decision-making, presumably because we have reason to believe that following the procedures will do better in the long run, as compared with relying on the judgment of individuals. In addition, it is not obvious that adopting the personality of the whistleblower or outlier is something that people can do as an act of choice or will. Being willing to question and stand outside the institutional, cultural, and personal structures within which you work may require exceptional fearlessness as to the consequences of your actions, a willingness to fight instead of conciliate those with whom one spends a great deal of time, and a preference for autonomy in judgment over relationships with others. Particularly given the social stigmatization suffered by many whistleblowers, it is unlikely that most individuals within an organization would want to be mavericks. It seems odd to ground a general theory of ethical lawyering, intended to be applicable to all lawyers, on a complex of personal characteristics that occurs only infrequently in the form of exceptionally courageous and individualistic people. 108. C. FRED ALFORD, WHISTLEBLOWERS: BROKEN LIVES AND ORGANIZATIONAL POWER 18 (Cornell University Press 2002).. 109. Id. at 24. 110. See generally Thaler & Sunstein, supra note 14; Darley, supra note 75; Tenbrunsel, et al., supra note 64; Sims & Brinkmann, supra note 66. 111. See generally Messick & Bazerman, supra note 75; Tenbrunsel & Messick, supra note 66; Mahzarin R. Banaji, et al., How (Un)ethical Are You?, HARV. BUS. REV., Dec. 2003, at 56-64 (reviewing experimental evidence on biases like implicit prejudice, ingroup favoritism, and conflicts of interest). 112. See, e.g., Lynne L. Dallas, Enron and Ethical Corporate Climates, in ENRON: CORPORATE FIASCOS AND THEIR IMPLICATIONS 201-06 (Nancy B. Rapoport & Bala G. Dharan, eds., Foundation Press 2004).
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This critique is similarly applicable to Luban’s lawyer. As noted, discourses of morality are highly disfavored in legal practice. The ability to swim upstream against those norms either requires an agility in negotiating human relations, which may not be realistic to expect across the population as a whole, or an unwillingness to “go along and get along” which may be undesirable and dysfunctional in institutions which are generally good rather than generally corrupt. Luban worries a great deal about the possibility of organizations socializing individuals into acquiescing in great evils – what may be called the Eichmann problem. 113 In response, he emphasizes relying on personal moral tripwires. Lawyers should establish in advance lines they will not cross, and be willing to walk away from a situation that seems to be pushing them to cross these lines. 114 The experimental evidence showing how easily individuals may be socialized into corruption is both what pushes Luban to recommend this all-or-nothing solution and the grounds for criticizing his reliance on integrity as a way of ensuring ethical conduct by lawyers. If organizations are indeed such a powerful socializing force, then it would appear futile to regulate organizational wrongdoing by insisting on right conduct by individuals. Instead, it would be more effective to regulate organizations directly to ensure that they maintain healthy ethical cultures. 115 Yet another issue for Luban is his reliance on possession of moral character. This is where the critique of social psychology and the observation of the relationship between conduct and circumstances has the most bite. While psychological personality has, as noted, some ability to withstand the situationality critique, moral character has relatively little. Moral character seems neither identifiable nor predictive of conduct. 116 That is to say, managers of an organization might do well to try to select employees on the basis of “Big Five” personality characteristics such as agreeableness, stability, or conscientiousness. It would be less helpful, and possibly even counterproductive, to choose on the basis of perceptions that a candidate is honest or loyal. One must consider the possibility of
113. See David Luban, The Ethics of Wrongful Obedience, in LEGAL ETHICS AND HUMAN DIGNITY, supra note 3, at 250-52 (citing Hannah Arendt’s description of Adolf Eichmann’s personality). 114. David Luban, Integrity: Its Causes and Cures, in LEGAL ETHICS AND HUMAN DIGNITY, supra note 3, at 295. 115. See, e.g., Ted Schneyer, Professional Discipline for Law Firms?, 77 CORNELL L. REV. 1 (1991). 116. This point is made most strongly by Doris, supra note 28. Luban himself is aware of the situationalist literature, and spends a significant amount of time discussing the implications of the Milgram experiment and other things in his most recent book. His focus is, however, on the extent to which moral blame is still possible given the influence of circumstances. He does not address the relationship between the situationalist critique and his reliance on lawyers’ moral commitments in his act prescriptions.
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committing the fundamental attribution error, and confusing responses to situational pressures with cross-situationally stable moral dispositions. 117 For Fried the issues are different, and relate to the problem of the maladaptive version of the morally skeptical lawyer, who loses her moral compass altogether, pursuing victory for her client at any cost. Fried’s ideal of being a special purpose friend is attractive on its face, but does not carry over completely to the lawyering context. As many of Fried’s critics have pointed out, friends are not privileged to do nasty things for each other merely because they are friends. 118 Moreover, lawyers sometimes treat their clients in ways they would never treat their friends – for example, refusing to help a client once he runs out of money. Indeed, some lawyers learn to be hired guns rather than friends. An obviously extreme version of this is the New Jersey lawyer who (allegedly) arranged for the murder of witnesses to secure acquittal for his clients on the basis of “no witnesses, no case.” 119 This is not to suggest that every lawyer who embraces zealous advocacy so loses his moral bearings as to view murder as an acceptable litigation strategy, but is to suggest the fine line that exists between reserving moral judgment and losing the capacity for it. Critics of Fried’s metaphor complain that he drained the morally attractive features out of friendship in order to make it work as an analogy for representing clients. By doing that, he made it difficult to find anything of real moral value in the lawyer-client relationship. Thus, as Postema suggests, a lawyer feels torn between her personal moral commitments and the requirements of role, and thus begins to identify with a stance of detachment from all normatively significant commitments. B. INSTITUTIONAL EXISTENCE
All lawyers work within institutions, one way or another. Law firms, corporations, and government are institutions within which lawyers work, but the legal system itself is an institution within which lawyers are intended to function, and the operation of which lawyers are intended to foster and protect. “How a lawyer should be,” therefore, can never be considered apart from those institutional contexts. And nor should it be. In organizations, individual ethical commitment is a less significant determinant of ethical behavior than functional organizational climates, including shared norms of responsibility. Further, organizations can accomplish ethically valuable ends that individuals may have a difficult 117. See, e.g., ROSS & NISBETT, supra note 28. 118. See, e.g., Edward A. Dauer & Arthur Alan Leff, Correspondence: The Lawyer as Friend, 86 YALE L.J. 573, 574-575 (1977). 119. David Kocieniewski, Lawyer’s Ways Spelled Murder, U.S. is Charging, N.Y. TIMES, May 20, 2009, available at http://www.nytimes.com/2009/05/21/nyregion/21witness.html?_r=2&hp.
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time achieving. For this to happen, however, the institution must operate as an institution: with coordination, a chain of command, and some level of deference to the institution and to authority within the institution. A relevant critique of the “how should a lawyer be” claims inherent in Simon, Luban, and Fried is, therefore, whether the lawyer posited by the theory can work within an institutional structure. Building on our previous comments, both the Simon and Luban lawyers have difficulties doing so because the fundamental premise of each theory is that the lawyer alone is responsible for judging what should be done in a given case and, as well, because both to some extent reject even the authority of the institutional norms of the legal system itself. Both theorists strongly mistrust institutions – Luban under the rubric of the Eichmann problem, and Simon with his thoroughgoing critique of the categorical decisionmaking process. Accordingly, they insist on a high level of individual responsibility for complying with norms of morality or justice, which incidentally might be norms to which an institution is also committed. The person who takes those maxims of action seriously and resists the pressures of institutional compliance cannot function easily within an institution. Her capacity to resist institutional compliance makes institutional compliance something she cannot do well or easily. This undercuts the capacity of institutions to establish an infrastructure that is conducive to compliance with regulatory or ethical norms. If institutions are ever to be a source for positive social change, or at least are not to be viewed as unmitigated sources of evil, the implications of this observation are seriously problematic for both theories. For Fried the issue around institutions is the problem of stasis. Even if institutions have the potential to do good, and in some cases may indeed be necessary for certain kinds of goods to be achieved, there is no necessary connection between institutions and goodness. A lawyer who does not question authority can end up quiescent in the wrongdoing of an institution, and will not be one of the forces pushing an institution towards socially positive directions and norms. Fried’s emphasis on friendship tends to suggest a slightly uncritical attitude. Granted, friends are sometimes able to speak uncomfortable truths to each other (like “he’s just not that into you” or “you’ve got a booger hanging from your nose”), but in a stable friendship the parties do not endlessly nitpick each other’s failings. The role of the lawyer, however, may be to do exactly that. Lawyers are often believed to be in an advantageous position to monitor clients’ compliance with the requirements of law (although they are prone to certain predictable errors that should be taken into account when designing compliance regimes). 120 The idea of loyal advocacy is ill-suited
120. See Langevoort, Monitoring, supra note 69, at 75-76.
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to this role at least, although it may aptly describe what lawyers do when they function as litigators.
C. RULE COMPLIANCE
A strong component of all the leading theories of legal ethics is to emphasize the individual as the source of ethical conduct. The idea that legal ethics could be embodied meaningfully – even fully – in a system of regulatory norms and rules does not register if the question being asked is “can a good lawyer be a good person.” A significant reality of legal ethics, however, is the significance and complexity of the law governing lawyers. Legal ethics is no longer (if it ever was) a matter of individual lawyers selecting the right course of action. In addition to the disciplinary rules promulgated and enforced by state supreme courts, the law governing lawyers consists of: tort and agency law rules establishing civil liability to clients for negligence and breach of fiduciary duty, as well as liability to non-clients for aiding and abetting fraud; the regulation of lawyers by administrative agencies (such as the adoption of SEC rules governing the conduct of lawyers representing public corporations, and the IRS’s Circular 230 governing professionals advising on tax shelters); and sanctions imposed by courts for litigation-related misconduct. Moreover, when embodied in rules, particularly rules from courts or regulatory bodies independent of the legal profession itself, the law governing lawyers can make a claim to rightness in political morality rather than in individual morality. The lawyer who complies with the SEC’s SarbanesOxley regulations even where doing so makes her a tattle-tale, can support her actions through the fact that the Sarbanes-Oxley Act is a democratically legitimate law, reflecting the public will. The law can make a moral claim because of its status as law in a democratic state, rather than because of the virtue of its content. If this is the case, if legal ethics and lawyer morality can be a product of a democratically legitimate regulatory regime, then a legitimate question for theories of legal ethics is the extent to which the person posited by the theory will be rule compliant. Assuming a just and democratic legal system capable of producing results reflective of the public will, what type of lawyer is best able to further those results and to comply with the public will reflected therein? Again, the types of person posited by both Simon and Luban have problems in this respect. Both Simon and Luban place little weight on the virtues of legal compliance per se. It is true that Simon equates justice with legal merit, but he does so in a way which is more technically than substantively true; Simon’s legal merit is Hercules’ legal merit, not the ordinary legal practitioner’s attempt to comply with rules in a manner consistent with the interpretive 37
community to which she belongs. And Luban does not place merit on compliance with the norms of the adversary system where doing so violates ordinary morality in a manner not justified by the four-fold root of sufficient reason. Fried’s lawyer fares better on this ground. Compliance with legality is inherent to his theory, since the moral claim of the client is only to that to which he is legally entitled. That to which he is not legally entitled – whether in terms of his lawyer’s representation or otherwise – is not something to which he can make a claim, regardless of the lawyer’s obligation to represent him with zeal. As noted, however, Fried seems to have in mind primarily a conception of lawyers as litigation advocates, not transactional engineers or compliance counselors. The act prescriptions for lawyers may vary, depending on whether they are serving as representatives litigation or counseling contexts. For example, lawyers may generally assert legal positions in court filings that are supported only by a good faith argument for the extension, modification, or reversal of existing law. 121 It would be inappropriate to assert a similar position in a third-party opinion, or as the basis for advice to a client that a course of action was legally permissible. 122 Just as these act prescriptions vary by the context of a lawyer’s practice, it may turn out that certain personal characteristics are also better suited (in terms of being more realistic, stable, functional, etc.) for litigators, deal lawyers, or compliance counselors. V. CONCLUSION Our intention in this paper is to open up for consideration a different way of thinking about the claims made within theoretical legal ethics. More prescriptively, our intention is to suggest that it is not enough to assert that a particular maxim of action is more or less justified than others, or more or less likely to improve the circumstances, outcomes and conduct of legal practice than others. It must also be determined what conception for “how the lawyer should be” inheres in that maxim, and whether that conception is functional, realistic, or desirable. In the end, the questions of theoretical legal ethics are never merely theoretical – they 121. FED. R. CIV. P. 11(b). 122. Arguably Justice Department lawyers in the Bush Administration did exactly this, in advising on the treatment of detainees alleged to be involved in terrorism. Many of the legal positions in the so-called “torture memos” would be appropriate only – if at all – as arguments for a change in the law, to be asserted in a brief filed with a court. See W. Bradley Wendel, The Torture Memos and the Demands of Legality, 12 LEGAL ETHICS 107 (2009) (review essay, reviewing books by Harold Bruff, Jack Goldsmith, Jane Mayer, Philippe Sands, and John Yoo); W. Bradley Wendel, The F.W. Wickwire Lecture on Legal Ethics and Professional Responsibility: Executive Branch Lawyers in a Time of Terror, 31 DALHOUSIE L.J. 247 (2009).
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are always practical, and practical questions are unlikely to lend themselves to neat resolution through the application of a specific moral principle or maxim of action. As Bernard Williams also noted, maxims of action can conflict, and the reconciliation of them in a particular circumstance – or the choice about what to do when no such reconciliation is possible – will rest with the actor and her judgment about what the best thing is to do in that circumstance, all things considered. 123 This means, in the end, that a concern with who that actor is, the circumstances within which she works, and what she will bring to bear in making a decision, may merit our attention to an even greater extent than do the formulation of just the right maxim for ethical conduct by a lawyer. This inquiry will, in turn, bring with it all sorts of vexing questions, particularly given the insights of social and behavioral psychology about the complexity of human behavior and intelligence, but the vexatious nature of those questions does not mean that they can be avoided.
123. BERNARD WILLIAMS, PROBLEMS OF THE SELF 166-86 (Cambridge University Press 1973).
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