Can I be a Good Lawyer and a Good Person?

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This article is a topic within the subject Law, Lawyers and Society.

Required Reading

Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012), pp. .

Case Study: The Law Firm

  • [1] Dispute over CravathSwaine representing Credit Suisse against families of Holocaust victims from certain practitioners.
    • Credit Suisse was used by the Nazis in their money laundering activities, most of which were seized from their Jewish Holocaust victims.
  • [2] Many Jews left money in Swiss bank accounts as inheritance if they were killed in WWII, but their descendants are having trouble recovering them due to Swiss bank law
  • [3] Jews around the world continued to condemn Credit Suisse’s bureaucracy and they began to make demands of Credit Suisse to set up accounts. CS eventually caved in but account recovery still faces a bureaucratic process.

Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues

  • [4] whether there is adequate justification for the kind of moral universe that comes to be inhabited by the lawyer as he or she goes through professional life
  • Complexity of client-lawyer relationship, especially role-differentiation
  • What is characteristic of this role of a lawyer is the lawyer’s required indifference to a wide variety of ends and consequences that in other contexts would be of undeniable moral significance
  • The role-differentiated character of the lawyer’s way of being tends to render irrelevant what would otherwise be morally relevant considerations
  • The lawyer need not of course agree … but there is nothing wrong with representing a client whose aims and purposes are quite immoral
  • [5] One difficulty in even thinking about all of this is that lawyers may not be very objective or detached in their attempts to work the problem though
  • There is, I think, something quite seductive about being able to turn aside so many ostensibly difficult moral dilemmas … but there is, of course, also an argument which seeks to demonstrate that it is good and not merely comfortable for lawyers to behave this way.
  • Just imagine what would happen if lawyers were to refuse, for instance, to represent persons whom they thought to be guilty
  • The amorality of lawyers helps to guarantee that every criminal defendant will have his or her day in court
  • Often objections are with the law, not the client
  • If lawyers are needed to effectuate the wishes of clients, the lawyer ought to make his or her skills available to those who seek them without regard for the particular objectives of the client
  • I do believe that the amoral behaviour of the criminaldefense lawyer is justifiable … but outside criminal law the lawyer ought to have some liberty as a moral subject
  • [6] A lawyer’s amorality only works if backed up by a just legal system; if the lawyer holds certain character traits; and dues to the distinction of the lawyer’s role differentiation (compared to a doctor, is his/her advocacy always completely good?)
  • People think that lawyers are hypocrites because they don’t see the picture of them being actors
  • There is still a social cost to a lawyer’s role-differentiated behaviour
  • In such critics’ view, the submersion of self into role is particularly damaging for lawyers, whose work often rewards deception, combativeness, and insensitivity to non-client interests … from this perspective, role obligations should be abandoned when the moral costs of adhering to role are too great for lawyers, society, or third parties
  • Role morality vs. role utilitarianism? How can role morality be separated from ordinary decision-making?
  • Proposed four-step alternative analysis

William H. Simon, Ethical Discretion in Lawyering

  • [7] Lawyers should have ethical discretion to refuse to assist in the pursuit of legally permissible courses of action …
  • The lawyer should take those actions that, considering the relevant circumstances of the particular case, seem most likely to promote justice
    • It’s not about being arbitrary and having liberties for the sake of it; it’s about the ability to use one’s ethical judgment
  • Can it really be anything but arbitrary? Maybe, at least in the case of a judge or the public prosecutor
  • Proposed discretionary approach would allow a fulfilment of a lawyer’s role but through:
    • An assessment of the relative merits of the client’s goal and claims and the goals and claims of others whom the lawyer might serve
    • An effort to confront and resolve the competing factors that bear on the internal merits of the client’s goals and claims
  • [8] Relative merit: Includes criteria such as the extent to which the claims and goals are grounded in the law, the importance of the interests involved, and the extent to which the representation would contribute to the equalization of access to the legal system
    • Merit can also help in the appropriate and fair distribution of legal costs
    • Lawyer’s financial needs should also be considered
    • Also applies to pro-bono work
  • [9] Internal merit:
    • Substance vs. Procedure: Only where the law can make an informed decision?
    • Purpose vs. Form: i.e. the purposive argument and approach to legal decisions. A lawyer will need to establish the merits of each case in discerning purpose
    • [10] Broad vs. Narrow framing: Is it appropriate to look strictly at a small number of characteristics or the big picture and background?

T. Shaffer, The Ethics of Care, On Being a Christian and a Lawyer: Law for the Innocent (1981)

  • [11] Three orientations govern the moral dimension of lawyers: role, moral isolation and aspiration to care
  • The ethics of care … make conscience relevant
  • [12] Moral conversation is an art
  • The substantive moral idea involved is freedom. Those who write on the subject do not talk about particular virtues; they talk instead about providing information, time for thoughtful choice, and institutional (and professional) procedures which forbid coercion
  • Discern isolation from autonomy. Autonomy focuses on both the person and the problem
  • Dworkin’s guidelines
    • Methods of influence (should be used) which are not destructive of the ability of individuals to reflect rationally on their own interests (time/space/environment for reflection)
    • Methods which rely essentially on deception, on keeping the (client) in ignorance of relevant facts, are to be avoided (full information)
    • (One should prefer) methods of influence which work through the cognitive and affective structure of the (client), which require the active participation of the (client) in producing the change, (over) those which short-circuit the desires and beliefs of the (client) and make him a passive recipient of the changes (collaboration)
  • [13] It is possible for two people to discuss an issue of conscience, and to discuss it deeply, even though neither of them comes to change his mind

End

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References

Textbook refers to Y. Ross & P. MacFarlane, Lawyers’ Responsibility and Accountability: Cases, Problems and Commentary, Fourth Edition (Butterworth’s, 2012).

  1. Textbook, p. 109
  2. Textbook, p. 110
  3. Textbook, p. 111
  4. Textbook, p. 112
  5. Textbook, p. 113
  6. Textbook, p. 114
  7. Textbook, p. 117
  8. Textbook, p. 118
  9. Textbook, p. 119
  10. Textbook, p. 120
  11. Textbook, p. 121
  12. Textbook, p. 122
  13. Textbook, p. 123
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