The recent post by Simon Chester on, as he put it, “[t]hree unrelated thoughts on law and honour” was truly thought provoking. Indeed, it made me wonder if it was not a terminal diagnosis. It is not just that lawyers face an historical culture that places an emphasis on acting on ‘instruction,’ but a current economic reality that brings the bottom line into sharp relief. This raises the disturbing proposition, then, that a lawyer may never be in a position to ‘do the right thing.’
If you won’t do it, I’ll find someone who will!
You’ve all seen it on tv. The intrepid doctor is faced with a patient who requests a questionable procedure/prescription. Our ‘hero’ is caught on the horns of a moral dilemma. Does she respect the patient’s wishes or honour their own ethical code? After much deliberation, she is resolved to tell the patient she can’t go through with their request. The patient, furious, inevitably retorts “if you don’t do it, I’ll find someone who will.” The kicker is often “anyway, I’m paying you good money for this!”
Now, on tv these kinds of issues crop up with an unnatural regularity to be sure. Your average law practice may never even face such a conundrum. That said, the sorts of practices that do face them on a regular basis are from the ordinary: justice departments, firms specializing in securities, and criminal law of all flavours. It is also not beyond the imagination for a family lawyer to question her client’s motives. But what are these lawyers to do? Its not as if there aren’t other lawyers who can do the job. If lawyers were independently wealthy, then this wouldn’t be a problem; but when you need to put bread on the table it can get rather hard to say ‘no.’ It’s the classic ‘good guy’ paradox: why be good when it pays to be bad?
There is also the second trap, also often reprised on tv, of the well meaning doctor acquiescing to the patient’s unconscionable demands. If someone is going to do it, they say, it might as well be me so that I can stop it before it gets too far. Right, because that’s usually how it turns out. Slippery slopes are, well, slippery. Once you start down them, it’s not just hard to bet back to where you came from, it’s near impossible to stop sliding down at all. Given the alternatives, however, what’s a lawyer to do?
What was that counsellor?
The style of address says it all, doesn’t it? A counsellor, by definition, provides counsel. That can be pretty hard to do when your client doesn’t trust you. And why would he, if, in his perception, you don’t have his best interests at heart. What do you say to the quintessential utility maximizer who demands to know how much it might cost him to contaminate the local well? “I’m sorry, I don’t think that’s really the question you should be asking…” Even if he doesn’t fire you, you might find yourself doing less stimulating work. At least there won’t be moral ambiguity in his lease renewals.
It comes down to this: a lawyer purports to provide a valuable service. How does your client decide your service is valuable? It will likely come down to whether or not he makes more (or at least loses less) money than he would have without you. If that is the only criteria, as I submit it is, by which he makes this decision, then ‘good’ advice might not be the same as ‘valuable’ advice at all. To borrow from Matthew Good, Mill is fighting Kant and you’re in the stands.
Personal Integrity v. Professional Integrity
The problem seems to be one of trying to serve two masters simultaneously. Is the lawyer a servant of justice or merely the employee of a mega-conglomerate? Perhaps the two are not always mutually exclusive, corporations have rights after all. That said, the tension is palpable and, where they do conflict, it is not clear what the lawyer is to do.
Even where the latter wins out, it is unclear, at least to me, how the lawyer, as a person, is meant to respond to the demands of her profession. Are the two meant to be divorced such that you follow one set of rules from 9-5 (or whatever your workday looks like) and another during what’s left of the day? Or are you really able to separate the two. You do not cease to be a lawyer when you leave the office anymore than you cease to be a person when you enter it. This tension, at least, seems intractable.
Of Foxes and Lions
Perhaps this will all be cleared up in my mandatory professional ethics class next term. This is a murky topic, and there may be no easy answer. That alone, however, seems like a poor excuse not to try. The answer might be, as it so often seems to be, to focus less on the cost/benefit analysis and more on the result.
Make no mistake, this is not an apology for how things are, but a lament for the way things may never be. Given the personal cost associated with doing the right thing, the honourable thing, it seems unlikely that anyone will take that heroic step. Instead, lawyers might have to content themselves, as they long have, with living by their wits and doing what little they can with what little they have.
In this respect at least, J.G.A. Pocock could have been describing the legal profession when he said “we are all foxes, never lions.”
