"Critically examine the conflict between common morality and the lawyer's 'role morality' under the adversary system" "The first thing we do lets kill all the lawyers."[1]
Lawyers and Society (264) Assessed Coursework Naveed Ahmed
"CRITICALLY EXAMINE THE CONFLICT BETWEEN COMMON MORALITY AND THE LAWYER'S 'ROLE MORALITY' UNDER THE ADVERSARY SYSTEM"
"The first thing we do lets kill all the lawyers."1
Perhaps Shakespeare's splendidly evocative proclamation best encapsulates the hostility pervading the moral integrity of the legal profession a sentiment which has struck a responsive chord throughout the ages.2 Accordingly, Burk remonstrates: "It is what a lawyer tells me I may do, but what humanity, reason and justice, tell me I ought to do." Thus Sandberg: "Why is there always singing when a lawyer cashes in?" Thus Judge Learned Hand: "About trials hang a suspicion of trickery and a sense of result depending upon cajolery or worse."3 Similarly folklore and popular opinion reflect a deep rooted probably ineradicable suspicion regarding the lawyer's veracity the corollary of which is that an ethically exemplary lawyer is probably taken to be an idealisation rather than a descriptive category.4 Taken from this vista there would seem to be an element of accuracy in the paradoxical suggestion that the expression "legal ethics" is nothing more than a oxymoron.5 One may wonder why it is that conceptions of the legal profession which traditionally enjoyed widespread respect amongst the community and images of the lawyer as professionals of practical wisdom and judgment whose concerns extend beyond the interests to the public good6 are juxtaposed with malevolent portrayals of lawyers as "nothing more than whores for powerful clients who will lie, cheat, or exploit loopholes to get their client's off without regard for truth or justice."7 To find a definitive answer to the question an important conceptual starting point concerns the ambivalent perceptions of the lawyer's role. It is palpable that the inherently litigious nature of the legal profession will inevitably lead to circumstances when lawyers are required to behave in ways which seem to conflict with common perceptions of morality.8 Taken from this perspective lawyer's are perceived as acquiescent professionals or "hired guns" complying with client's requests even when the request is morally objectionable excusing or rationalising their conduct as required by professional detachment and respect for client's autonomy.9 Indeed the apparent incongruity of accepting ethical obligations which require otherwise immoral behaviour has acquired its own terminology the lawyers "role morality" the expression most eloquently typified as "the effective performance of [a] role requires actions that conflict with moral commitments the individual makes outside the role."10 It is an analysis of precisely this conflict which the following discourse will aim to delineate by focusing on the structural tension in the lawyer's role questioning whether under the adversary system of justice the lawyer's inherently contentious role conflicts with common morality.
The underlying nature of the conflict (a) The theoretical divergence between the concept of common morality and the notion of the lawyer's role differentiated morality.
In elucidating whether the lawyer's litigious role and notion of professional responsibility initiate divergence from common perceptions of morality an essential starting point is to briefly11 explicate some form of understanding in relation to the moral values the lawyer's role ostensibly subverts. In actual fact providing a definitive answer which encapsulates the various perspectives espoused in relation to the notion of common morality is a somewhat unfeasible task as the concept remains elusive.12 Nevertheless one feature has remained dogmatically constant throughout the various interpretations advocated and that is the importance of the moral sense. One need only look at ancient mythology and Zeus's solution to the inexorable decline of the human race, the gift of a moral sense, to gain a mesmerising insight into the inherent importance of morality.13 Although historically religious ideology provided much of the framework in relation to the assessment of moral standards it is argued that in a modern pluralistic society biblical authority no longer determines the formulation of ethical principles.14 Thus moral philosophy has made a number of attempts to provide a definitive answer in relation to what the concept of morality actually embraces and it has been conveyed that moral duty "is the action which will cause more good to exist in the universe than any other possible alternative.15 Similarly it has been advocated that common morality gives rise to an obligation to prevent that which is bad unless that would require the sacrifice of something of comparable moral significance.16 Perhaps for the purposes of this discourse the notion of morality is best elucidated in terms of what Esau advocates as the "moral imagination."17 Taken from this vista the imagination is essential to morality because imagination is necessary for sympathy. In this context, sympathy is freed from its usual hand-wringing connotations and taken as a form of ethical understanding as the human's primary moral talent.18 From this perspective one is required to place oneself in the shoes of others likely to be affected by one's act's or omissions.19 Without this fundamental imaginative acknowledgment of others one cannot begin to reason about what is right or wrong and it is this "moral imagination" notion of common morality which will be employed in this discourse.
So to what extent does the lawyer's contentious role conflict with this notion of common morality, is "professionalism" incompatible with human decency?20 From the onset it is evident "that one of the most persistent criticisms of lawyer's ethics is that lawyer's are permitted or required to act ex officio in ways that they would not consider proper in their personal conduct."21 Thus professional responsibility may require the lawyer to advise a husband who seeks custody of his children in a divorce battle simply to hurt his wife a phenomenon which common morality may decree as immoral. Lawyer's may have traditionally defended their contentious position by arguing that their primary function was to provide the client access to the law in its multitude of facts.22 Lawyers therefore, may have been considered to be merely tools that enable their clients to accomplish lawful projects and if the clients actions were deemed to be immoral the blame properly belonged with the client not the lawyer.23 Nevertheless more sophisticated reasoning has been developed to elucidate this gap between ordinary ethics and the special ethics of the professional role a theory by no means confined to the legal profession but considered to be an ideology of every profession24. This theory is often expounded in terms of the lawyer's role differentiated morality the expression utilised to exemplify the fact that different roles demand differing levels of deviation from common perceptions of morality the corollary of which is that the lawyer may be required to deviate from the world of common personal morality to the world of special institutional morality. Perhaps this phenomenon is best depicted by Esau in terms of an unorthodox comparison to a deck of playing cards.25 "We have this deck of playing cards which normally allows us to deal them out in most situations as ordered, but sometimes we have to shuffle them to priorise them differently in relation to a situation if we are to remain true as much as possible to the overall commitment we have to be a certain kind of person and live in a certain kind of life." Thus, Esau conveys that when one is ingrained within a professional role many of the cards are simply discarded from the deck and set aside completely the deck is not reshuffled and reprioritised given the professional context but rather a bunch of cards are "tossed" out as being irrelevant to the professional role.26 From this perspective "professionals are entitled to do whatever is permitted by the regulations promulgated by their profession, even when their actions conflict with wider social norms."27 The interposition of the special professional norm between the professionals ordinary moral perception is justified in terms of the deeper moral teleology of the lawyer's profession. It must be shown that some central institutional value will fail to be realised without the limitation or augmentation of his authority or responsibility, and the realisation of this value is worth the moral price paid for strong role differentiation.28 Hence, lawyer's can appeal to the social institution in which they operate under to excuse their otherwise immoral acts a phenomenon depicted by Luban as the "institutional excuse".29 According to Luban the key point is that role morality can not deviate from common morality without a reason but such a reason may be advanced by following a four step process of justification. "First, one justifies a morally disquieting action by appealing to a role-related obligation; second, one justifies this role-related obligation by showing that it is necessary to the role; third, one justifies the role by pointing to the institutional context like the adversary system that gives rise to it; and fourth one demonstrates that the institution is a morally worthy one."30 Consequently it becomes essential to analyse this institutional context, the adversary system, to gain an insight into how conflict develops.
"CRITICALLY EXAMINE THE CONFLICT BETWEEN COMMON MORALITY AND THE LAWYER'S 'ROLE MORALITY' UNDER THE ADVERSARY SYSTEM"
"The first thing we do lets kill all the lawyers."1
Perhaps Shakespeare's splendidly evocative proclamation best encapsulates the hostility pervading the moral integrity of the legal profession a sentiment which has struck a responsive chord throughout the ages.2 Accordingly, Burk remonstrates: "It is what a lawyer tells me I may do, but what humanity, reason and justice, tell me I ought to do." Thus Sandberg: "Why is there always singing when a lawyer cashes in?" Thus Judge Learned Hand: "About trials hang a suspicion of trickery and a sense of result depending upon cajolery or worse."3 Similarly folklore and popular opinion reflect a deep rooted probably ineradicable suspicion regarding the lawyer's veracity the corollary of which is that an ethically exemplary lawyer is probably taken to be an idealisation rather than a descriptive category.4 Taken from this vista there would seem to be an element of accuracy in the paradoxical suggestion that the expression "legal ethics" is nothing more than a oxymoron.5 One may wonder why it is that conceptions of the legal profession which traditionally enjoyed widespread respect amongst the community and images of the lawyer as professionals of practical wisdom and judgment whose concerns extend beyond the interests to the public good6 are juxtaposed with malevolent portrayals of lawyers as "nothing more than whores for powerful clients who will lie, cheat, or exploit loopholes to get their client's off without regard for truth or justice."7 To find a definitive answer to the question an important conceptual starting point concerns the ambivalent perceptions of the lawyer's role. It is palpable that the inherently litigious nature of the legal profession will inevitably lead to circumstances when lawyers are required to behave in ways which seem to conflict with common perceptions of morality.8 Taken from this perspective lawyer's are perceived as acquiescent professionals or "hired guns" complying with client's requests even when the request is morally objectionable excusing or rationalising their conduct as required by professional detachment and respect for client's autonomy.9 Indeed the apparent incongruity of accepting ethical obligations which require otherwise immoral behaviour has acquired its own terminology the lawyers "role morality" the expression most eloquently typified as "the effective performance of [a] role requires actions that conflict with moral commitments the individual makes outside the role."10 It is an analysis of precisely this conflict which the following discourse will aim to delineate by focusing on the structural tension in the lawyer's role questioning whether under the adversary system of justice the lawyer's inherently contentious role conflicts with common morality.
The underlying nature of the conflict (a) The theoretical divergence between the concept of common morality and the notion of the lawyer's role differentiated morality.
In elucidating whether the lawyer's litigious role and notion of professional responsibility initiate divergence from common perceptions of morality an essential starting point is to briefly11 explicate some form of understanding in relation to the moral values the lawyer's role ostensibly subverts. In actual fact providing a definitive answer which encapsulates the various perspectives espoused in relation to the notion of common morality is a somewhat unfeasible task as the concept remains elusive.12 Nevertheless one feature has remained dogmatically constant throughout the various interpretations advocated and that is the importance of the moral sense. One need only look at ancient mythology and Zeus's solution to the inexorable decline of the human race, the gift of a moral sense, to gain a mesmerising insight into the inherent importance of morality.13 Although historically religious ideology provided much of the framework in relation to the assessment of moral standards it is argued that in a modern pluralistic society biblical authority no longer determines the formulation of ethical principles.14 Thus moral philosophy has made a number of attempts to provide a definitive answer in relation to what the concept of morality actually embraces and it has been conveyed that moral duty "is the action which will cause more good to exist in the universe than any other possible alternative.15 Similarly it has been advocated that common morality gives rise to an obligation to prevent that which is bad unless that would require the sacrifice of something of comparable moral significance.16 Perhaps for the purposes of this discourse the notion of morality is best elucidated in terms of what Esau advocates as the "moral imagination."17 Taken from this vista the imagination is essential to morality because imagination is necessary for sympathy. In this context, sympathy is freed from its usual hand-wringing connotations and taken as a form of ethical understanding as the human's primary moral talent.18 From this perspective one is required to place oneself in the shoes of others likely to be affected by one's act's or omissions.19 Without this fundamental imaginative acknowledgment of others one cannot begin to reason about what is right or wrong and it is this "moral imagination" notion of common morality which will be employed in this discourse.
So to what extent does the lawyer's contentious role conflict with this notion of common morality, is "professionalism" incompatible with human decency?20 From the onset it is evident "that one of the most persistent criticisms of lawyer's ethics is that lawyer's are permitted or required to act ex officio in ways that they would not consider proper in their personal conduct."21 Thus professional responsibility may require the lawyer to advise a husband who seeks custody of his children in a divorce battle simply to hurt his wife a phenomenon which common morality may decree as immoral. Lawyer's may have traditionally defended their contentious position by arguing that their primary function was to provide the client access to the law in its multitude of facts.22 Lawyers therefore, may have been considered to be merely tools that enable their clients to accomplish lawful projects and if the clients actions were deemed to be immoral the blame properly belonged with the client not the lawyer.23 Nevertheless more sophisticated reasoning has been developed to elucidate this gap between ordinary ethics and the special ethics of the professional role a theory by no means confined to the legal profession but considered to be an ideology of every profession24. This theory is often expounded in terms of the lawyer's role differentiated morality the expression utilised to exemplify the fact that different roles demand differing levels of deviation from common perceptions of morality the corollary of which is that the lawyer may be required to deviate from the world of common personal morality to the world of special institutional morality. Perhaps this phenomenon is best depicted by Esau in terms of an unorthodox comparison to a deck of playing cards.25 "We have this deck of playing cards which normally allows us to deal them out in most situations as ordered, but sometimes we have to shuffle them to priorise them differently in relation to a situation if we are to remain true as much as possible to the overall commitment we have to be a certain kind of person and live in a certain kind of life." Thus, Esau conveys that when one is ingrained within a professional role many of the cards are simply discarded from the deck and set aside completely the deck is not reshuffled and reprioritised given the professional context but rather a bunch of cards are "tossed" out as being irrelevant to the professional role.26 From this perspective "professionals are entitled to do whatever is permitted by the regulations promulgated by their profession, even when their actions conflict with wider social norms."27 The interposition of the special professional norm between the professionals ordinary moral perception is justified in terms of the deeper moral teleology of the lawyer's profession. It must be shown that some central institutional value will fail to be realised without the limitation or augmentation of his authority or responsibility, and the realisation of this value is worth the moral price paid for strong role differentiation.28 Hence, lawyer's can appeal to the social institution in which they operate under to excuse their otherwise immoral acts a phenomenon depicted by Luban as the "institutional excuse".29 According to Luban the key point is that role morality can not deviate from common morality without a reason but such a reason may be advanced by following a four step process of justification. "First, one justifies a morally disquieting action by appealing to a role-related obligation; second, one justifies this role-related obligation by showing that it is necessary to the role; third, one justifies the role by pointing to the institutional context like the adversary system that gives rise to it; and fourth one demonstrates that the institution is a morally worthy one."30 Consequently it becomes essential to analyse this institutional context, the adversary system, to gain an insight into how conflict develops.
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