Common morality and the lawyer’s ‘role

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.

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. 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.

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.

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.

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.

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.

Consequently it becomes essential to analyse this institutional context, the adversary system, to gain an insight into how conflict develops. The conflict in action (b) Does the adversary system of justice require lawyer's to deviate from common perceptions of morality? The adversary system is the procedure for trial of civil and criminal cases, it is the characteristic form of trial procedure adopted predominantly in common law countries and its essential feature is that a decision is made by judge or a judge with jury who determine the law from submissions made by partisan advocates on behalf of their client's.

Thus, the duty of a lawyer in adversary proceedings is one sided partisan zeal in advocating a client's position. This carries with it familiar collateral duties, the most important of which are disinterestedness and confidentiality which are best viewed as a prophylactic designed to enhance the quality of partisan advocacy. 32 One may wonder how it is that such a system which aims to establish the truth via a wholehearted dialectic of assertion and refutation33 plays such a pivotal role in facilitating the conflict between common morality and the lawyer's role differentiated morality.

Nonetheless one need only look at the way in which the adversary system of justice promotes what Luban refers to as the standard conception whereby the only ethical duty distinctive to the lawyer's role is loyalty to the client to gain an insight into how conflict develops under the adversary system. 34 According to this standard conception theory the lawyer must or at least may pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous claim.

35 Taken from this vista "many lawyers unabashedly acknowledge that they are hired guns for their client's, their client's retain them for results, not for moral solace, and the adversary system requires zealous advocacy which will be impossible if advocates regard themselves as amoral agents of their client's. "36 Consequently, Schwartz outlines two essential requirements of the adversary system which would seem to promote this standard conception namely the principles of partisanship and non accountability.

Partisanship it would appear decrees that a lawyer must, within the established constraints on professional behaviour, maximise the likelihood that the client's objectives will be attained. 38 Thus, this notion of partisanship is echoed by the English Law Society in conveying that the "the role of solicitors is to provide legal services… Their first duty is to their client. They are their client's representatives in all legal business and must act in their client's interest… The only exception to this duty to act on the client's behalf is when it conflicts with a solicitor's duty to uphold justice as an "Officer of the Supreme Court.

In addition to this the professional codes accept that lawyers have a duty to pursue the interests of their clients without regard for the interests of other people or, for the matter, society as a whole. Practice rule 1 in The Guide to the Professional Conduct of Solicitors makes it clear that the client is: "The bedrock of a solicitor's practice. "40 Consequently, a solicitor should not do anything which might otherwise compromise or impair the interests of clients. Furthermore, principle 12.

11 of the Guide states a solicitor is bound to exercise in carrying out a client's instructions with "diligence", is sometimes seen as closely related to partisanship. 41 Taken from this vista lawyer's instrumentally manipulate the law on behalf of client's, violating the spirit of the law by loophole hunting, instrumentally taking advantage of procedural rules to obfuscate and delay42. Therefore, partisanship does not give a damn for morality and does not even fundamentally respect law because the legal merits of a case come second to the winning of the case.

Boon conveys that this notion of partisanship is becoming increasingly apparent in relation to the use of strategic cooperation and bargaining in personal injury litigation to maximise financial advantage for client's. 43 This type of bargaining which may bring lawyers into conflict with societal norms of honesty aims to get the best result for the client and is partly characterised by high initial demands and psychological games. In the words one lawyer interviewed by Boon "it's a question of having a stack of cards, knowing what the trumps are and being able to lay them at the right time.

That is if you have a good case. If you haven't got a good case then it's a matter of picking up a crap hand and hoping and not letting the other side know you have a crap hand. "44 In delineating how partisanship requires deviation from common morality the case of Spaulding v Zimmerman45 provides an excellent example. A lawyer represented a defendant driver in a suit for physical injuries suffered by the plaintiff in a car accident. The physician hired by the defendant discovered a potentially fatal aneurysm not discovered by the plaintiff's physicians and this was not revealed when the case was settled.

The crucial questions which arises is "how could the lawyer have risked an innocent life for the benefit of the client. "46 Surely common morality and the notion of the "moral imagination" which would require the lawyer to place himself in the position of the plaintiff would inevitably lead to the disclosure of the information even if it was to the detriment of the client. Nevertheless instead the lawyer's role morality and the notion of partisanship: obtaining the best result for the client clearly prevailed in this instance.

Running alongside this notion of partisanship is the second pillar of the standard role morality of lawyers, non accountability, which decrees that "in representing a client a lawyer is not legally, or professionally, nor morally accountable for the methods used or the ends achieved. "47 The corollary of non accountability under the adversary system is that the lawyer's role necessarily means that that the lawyer can make arguments that the lawyer personally does not believe in and that the lawyer may pursues goals for a client that the lawyer may personally believe are wrongful.

This, Schwartz argues is necessary to prevent lawyers from "usurping the functions of judge and jury'" by imposing their own standards of morality upon a claim. 49 If lawyers were to decide which courses of action were moral or immoral and act accordingly, they would become the final arbiters of justice, and not the impartial tribunal. This would be practically and theoretically unacceptable. Again the principle of non accountability necessitates the lawyer to deviate from common perceptions of morality.

Thus, non accountability may allow a lawyer to give advice about conduct which lawyer's would not recognise as unlawful but to which the law applies a sanction. Advice about breach of contract is the paradigm. Not only do lawyer's feel free to give this advice which may encourage breach of contract but it would probably be malpractice to fail to give it when relevant to a client's case. 50 Consequently, it is evident that according to the standard conception of the lawyer's role both partisanship and non accountability "call upon the lawyer to set aside personal moral scruples when in conflict with client and institutional legal demands.

We are in effect being asked to dump a lot of cards out of our deck to engage in the role. "51 Nonetheless, recently there has been a strong tendency to challenge the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client's end. 52 Accordingly, it has been questioned whether the adversary system is such a morally worth institution that justifies this strong role differentiation built on the concepts of partisanship and non accountability.

The answer given by Luban is that that adversary system is not morally worthy and all the instrumental arguments for the adversary system's value in finding the truth, protecting litigant's legal rights, establishing checks and balances to safeguard excesses are exposed when critically examined54. Consequently, Luban has criticised this standard conception of advocacy and countenances adversarial ruthlessness as a blanket policy only in criminal and quasi-criminal defense and conveys it is only in these situations that the adversary system should be available as an institutional excuse.

Luban argues that in none criminal contexts zealous advocacy merely acts as an excuse for immoral conduct and that outside this context lawyer's should not carry the moral privileges or immunities offered by the standard conception of the lawyer's role. 56 Luban therefore, has initiated a proposal which would accept the concept of role morality or the standard conception theory but maintain the extent to which it may be invoked to justify otherwise immoral behaviour would be dependant upon the balance of wealth and power between the litigants.

Hence, only minor deviations from the demands of common morality would be justified in civil cases between evenly matched litigants but a more ruthless approach might be justified in criminal cases where the opposing litigant is a government institution or a large company. 57 Perhaps the most devastating critique of the standard concpetion theory of the lawyer's role has been presented by William Simon. 58 For Simon "the central problems of the lawyer's role stem from the tendency of the dominant conception to define its responsibilities in terms of formalistic, categorical and "mechanical" norms.

"Simons argues that in almost every other area of the law, jurisprudence has shunned formalism for a more contextual approach to the application of legal rules, which takes into account the particularities of individual cases. Hence, he sees no "justification" for why the field of lawyering should have escaped such classic critiques of categorical judgement – especially when such criticisms seem so fitting. Simon contends that the whole process of the standard conception subverts important moral values and encourages immoral acts by lawyers.

Advocates may purse their client's rights with out regard for moral considerations and come to assume the role of the "bad man" and their moral automny is undermined. 60 Thus, Simon's work does not focus on the personal objection to the conventional role demands of lawyering but rather the focus is reconceiving those role demands. This reconception involves the assertion that personal moral discretionary judgment by lawyers is actually central to their role as opposed to being contradictory to it and it is actually a role obligation of lawyer's to exercise moral judgment about the potential client's goals and claims.

Consequently, Simon offers a different approach to concept of legal ethics and proposes the "contextual view"wherby lawyer's should take those actions that, considering relevant circumstances of the particular case seem likely to promote justice. 62 Hence, the concept of professional ethics would be abandoned and instead lawyer's would be required to apply their own standards of personal morality in what is termed as "professional advocacy".

Consequently, we may summarise what has been ascertained thus far as, (1) the inherent nature of the adversary system requires lawyers to deviate from common perceptions of morality and this is best depicted as the standard conception of the lawyer's role. (2) It is argued that there is no justification for this and the standard conception need only apply to criminal defence cases. (3) Recent jurisprudence has suggested that this standard conception of the lawyer's role should be abandoned in favour of a more contextual approach.