Michaelmas Term 1999

LAWYERS ETHICS Lectures One to Four (R H S Tur Oriel College)



The Adverse Image of Lawyers: From biblical times to the present, lawyers have not enjoyed a good public image. St Luke 11:46 "Woe unto ye also ye lawyers ! for ye laid men with burdens grievous to be borne, and ye yourselves touch not the burden with one of your fingers". Consider the image of lawyers canvassed by poets, playwrights and novelists in the sixteenth, seventeenth, eighteenth, nineteenth and twentieth centuries.



In the sixteenth century Shakespeare (1564-1616) could construct the following dialogue:-

Dick: The first thing we do let's kill all the lawyers

Cade: Nay, that I mean to do. Is this not a lamentable thing, that of the skin of the innocent lamb should be made parchment? That parchment being scribbled o'er, should undo a man? Some say the bee stings but I say 'tis the bee's wax; for I did but seal once to a thing, and I was never mine own man since." (Henry IV, Part II, 1597-8, IV.ii).



And in the following century, Shakespeare (1564-1616) once again drew a familiar picture of lawyers and lawyering:

"O perilous mouths !

That bear in them one and the self-same tongue,

Either of condemnation or approof !

Bidding the law make court'sy to their will

Hooking both right and wrong to the appetite,

To follow as it draws" (Measure for Measure 1604-5, II iv)



In the eighteenth century we have what is perhaps my favourite swipe in Bernard Mandeville's Fable of the Bees (1705):

"The lawyers of whose art the basis

Was raising feuds and splitting cases

Opposed all registers that cheats

Could make more work with dipt estates

As were't unlawful that one's own

Without a lawsuit should be known.

They kept off hearings wilfully

To finger the refreshing fee

And to defend a wicked cause

Examined and surveyed the laws

As shops and houses burglars do

To find out where they'd best break through".

And the satirist, Jonathan Swift (1667-1745) described lawyers as follows in his best know work: "There was a society of men [lawyers] among us, bred up from their youth in the art of proving by words multiplied for the purpose that white is black and black is white, according as they are paid. To this society all the rest of the people are slaves" (Gulliver's Travels 1726 pt IV ch V).

The following words from John Gay (1685-1732) are in similar vein:

"I know you lawyers can with ease

Twist words and meanings as you please

That language by your skill made pliant

Will bend to favour every client" (Fables vol II 1738 Fable I "The dog and the fox")





Nor do things improve much in the nineteenth century. The image of lawyers that emerges from reading about Kenge, Tulkinghorn and Vholes, and of Chaffenbrass is negative, even repelling, and intended by Dickens and by Trollope to be so. Nor are the characters presented by these Victorian novelists wholly fictional. Thus the characters of Chaffenbrass in The Three Clerks (1858), Orley Farm (1862) and Phineus Redux (1874) and of Serjeant Stryver in A Tale of Two Cities (1859) are said to be based on that of Edwin John James QC, apparently the first English barrister to be disbarred.



And in the twentieth century, too, one can find the standard jibes against lawyers in literature readily enough. Thus in The French Lieutenant's Woman (1977) John Fowles writes, "The old woman hesitated, then cast a quick glance at a certain open box beside her roll-top desk and apparently decided that even lawyers can be thieves - a possibility few who have had to meet their fees would dispute."(Ch 46). As to the possibility of lawyers being thieves, Roy Grutman in a recent populist denunciation of American lawyers and lawyering entitled Lawyers and Thieves, recounts that St. Yves, the 14th century French lawyer who became the patron saint of lawyers seemed too good to be true. He wore a hair shirt to law school [as if law school was not punishment enough!] and "... always strove, if possible, to reconcile people who were at enmity, and to induce them to settle their quarrels out of court. In this manner he prevented many of those who came to him from embarking on costly and unnecessary lawsuits" Such conduct was so surprising that St Yves has long been celebrated in Latin rhyme: Sanctus Ivo era Brito/ advocatus et non latro/ res mirando populo which loosely translated goes: "St Yves was a Breton/ A lawyer; not a thief/ which astonished everyone". Centuries later, Benjamin Franklin was to write in similar vein (in his Poor Richard's Almanack, 1733) "God works wonders now and then, Behold a lawyer and an honest man !" Back to the 20th century where the words of pop lyricists (in the following excerpt, Elton John) sometimes capture popular cultural perceptions:

There's a lot I'd like to tell you

But I can't get past your guards

I do not speak their language

And they hold all the cards

I would rather call you darling

Than defendant in the case

But lovers left here long ago

And clients took their place



It says something for the legal boys

But nothing much for us

That all we had together

Is so quickly ended thus

The legal boys have won again

Oh and you and I have lost

They can't tell us how it happened

But they'll let us know the cost

Oh they'll let us know the cost

Oh yeah.

The point of this selective and brief survey of literary and cultural materials is that concern about lawyers' conduct and the ethical quality of their performance, while obviously not misplaced, is no new fashion, although it has undoubtedly received greater impetus in the last twenty years, particularly in America where, following on public awareness of lawyer involvement in Watergate, the Bar Association imposed a requirement that law schools provide "instruction in the duties and responsibilities of the legal profession". In my view, law schools in Britain should provide similar instruction and this course of lectures and seminars is a very small contribution to that task.



This aspiration to provide instruction to students on the duties and responsibilities of the legal profession represents a serious challenge for law teaching and calls for careful reconsideration of the way in which law is taught but, to my mind, a logically prior question arises as to why any rational person would choose to study law in the first place, particularly if the realities of lawyering match the adverse image. It is a remarkable paradox that despite the adverse image of the legal profession there is an army of recruits marching daily towards and through the law schools intent on swelling still further the ever increasing numbers of lawyers in practice. Presumably these applicants and students believe that there is something about studying and practising law that makes the considerable effort - and all the cheap shots - bearable.



Legal ethicists generally discuss permissions and duties, and, less often, aspirations, but the logically prior moral question is: Why choose to be a lawyer ? How might one react to a person who chooses to be an executioner ? This question is neither fanciful [see Albert Pierrepoint, Executioner Peirrepoint (London Harrup, 1974); John Deane Potter, The Fatal Gallows (London, Elekj Books, 1965), p 187: "How did you come to be appointed? It is in the family really. I am the third in our family to hold the position - my father, my uncle and myself"] nor without theoretical point [Michael Detmold, The Unity of Law and Morality: A Refutation of Legal Positivisn (London, Routledge & Kegan Paul, 1984) pp 28-29].. Of course, lawyers may see their role as very different to that of the executioner even though, in some jurisdictions, some lawyers, sometimes, may be professionally required to argue for the imposition of the death penalty. One recalls Macaulay's sharp comment: "... with a wig on his head and a band round his neck [a lawyer will] do for a guinea what, without those appendages, he would think it infamous to do for an empire"[ Thoma Babington Macauly, Essay on Bacon, David Salmon, ed. London 1914, p 37). Thus when "in uniform" or "on duty", a lawyer is somehow exempt from the ordinary requirements of general morality. This idea is referred to as "role differentiated morality" and is a highly controversial concept in moral philosophy.



The nature of law - rule and discretion: Put very briefly, although the law may be conceived of as a body of rules it is of the first importance that these rules be understood not to be dispositive of questions that may arise. At the point of application there is more or less room, depending on circumstances, for choice. Roscoe Pound thought that all problems of jurisprudence came down at bottom to a question of rule and discretion [An Introduction to the Philosophy of Law, New Haven, Yale University Press, 1922, p 111]. The art - and risk - of law making and applying is to strike the delicate balance between conflicting desiderata of justice and certainty. The more certainty and rigidity, the more likely injustice and absurdity [Lord Reid, "The Judge as Law Maker", Journal of the Society of Public Teachers of Law (New Series) 12 (1972-72), p 24]. This is brought out splendidly by the case of the one-armed swimmer:

"A year or so ago, a swimming meet took place at the University of Toronto. Most of the races proceeded as planned. But, at the end of one race, there was a challenge to the winner of the race. The appropriate group of official convened. The deliberations were lengthy and terse. After much argument and poring over the rules, a decision was announced: the winner had been disqualified and the second swimmer was acclaimed the victor. The referee took the unusual course of offering a brief justification of the committee's decision - "the rules were clear ('The winner is the first swimmer to touch the side of the pool with both hands') and, if this regrettable outcome is to be avoided in future, it will be necessary to change the rules". The winning swimmer had only one arm". [A C Hutchinson, Dwelling on the Threshold (Toronto, Carswell 1988), p 23]



This example, splendid though it is as an illustration of formalist reasoning, may be less typical of law and judges as of sport and tournament administrators. By contrast, even given strict Parliamentary Sovereignty, some judges, for example Lord Wilberforce, consider themselves to retain a degree of discretion to make sense of a rule so as to avoid unjust or absurd outcomes: "If I thought that Parliament's intention could not be carried out or even would be less effectively implemented, unless one particular (even though unnatural) construction were placed on the words it had used, I would endeavour to adopt that construction" [Nimmo v Alexander [1968] AC 107 at 130]. More than a century earlier, Parke B made the similar point that "It is a very useful rule in the construction of statutes to adhere to the ordinary meaning of the words used and to the grammatical construction, unless that is at variance with the intention of the legislature to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified so as to avoid such inconvenience but no further"[Becke v Smith (1836) 2 M&W 195].

However, the more the pendulum swings towards discretion, the less certainty and predictability and the more the legal system might resemble a perverse game of "scorer's discretion":- "Many competitive games are played without an official scorer ... the players succeed tolerably well in applying the scoring rule to particular cases ... a statement of the score made by a player represents, if he is honest, an effort to assess the progress of the game by reference to the particular scoring rule accepted in that game ... [Statements by an official] scorer whose decisions are final ... unlike the players' statements as to the score ... are unchallengeable. In this sense it is true that for the purposes of the gamer "the score is what the scorer says it is". But it is important to see that the scoring rule remains ... and it is the [official] scorer's duty to apply it as best he can. "The score is what the scorer says it is" would be false if it meant that there was no rule for scoring save what the [official] scorer in his discretion chose to apply. There might indeed be a game with such a rule, and some amusement might be found in playing it if the scorer's discretion was exercised with some regularity; but it would be a different game. We may call such a game the game of "scorer's discretion" [Hart, Concept of Law, 1961, p139]

One important point that follows from this brief jurisprudential sortie is that the relevance of the ethical dimension depends on the theory of law adopted, consciously or subconsciously, by the law teacher. For Simon, and I agree, "... the key issues of legal ethics are jurisprudential, that is, they implicate questions of the nature and purpose of law and the legal system" [p 13]. Some theories of law screen out and other foreclose on all moral considerations. Simon calls such approaches "categorical" On such theories a life in the law would be all logic and no applied ethics. Simon recognises that such approaches see "... professional responsibility as largely a matter of mechanical compliance with positive law" [p 13]. One example is to be found spelled out in some detail, especially at pp 101 - 108 of Tom D Campbell's The Legal Theory of Ethical Positivism (1996).



I contrast Campbell's "closure" with my own notions of "openness" and "defeasibility". I believe that my conception of law as open-ended, defeasible, normative conditionals is well illustrated and supported by a scrutiny of the data of contract, tort and crime and whilst there is much more to be said about this conception of law [and I am saying it in a pending work on Jurisprudence] , I have sufficiently developed these ideas to justify my conclusion that, in consequence, lawyering always involves the judgment either that the consequence normally attributed by law to specified fact should or should not be overridden on the particular facts of the instant case on grounds of equity, policy or mercy, or for other good reason. Thus, lawyering like judging, necessarily involves a decisional or "dispositive" element (as MacCormick felicitously put it, I think in his inaugural lecture on Law As Institutional Fact). I turn to the implications of this insight for legal practice.



Some observations on lawyering: Lawyers and legal practice have not done much better in legal theory than has equity, policy, mercy, or good reasons for lae nullification. Largely, lawyering and legal practice has been left to the sociologists and despite Bentham's earnest wish to bridge the "gulph", between law and philosophy, legal theory (and legal education) has concentrated on the judge rather than on the lawyer. One exception to this is to be found in the work of some post-Hartian legal scholars in America in the mid sixties who attempted to develop a lawyer-centred jurisprudence. ["Theories and Practices in the Legal Profession", Walter Probert and Louis M Brown vol XIX University of Florida Law Review 447-485 (1966-67)] These commentators argued that "... the time is ripe for jurisprudential theory to take account of lawyers" [447] because "... lawyers are much more a facet of legal process than jurisprudence or other legal theory has yet postulated" [448] but "...law teaching and legal theory often fail to take account of lawyer activities." [450] "It is not ... that ... professors cannot understand the attorney group; they do not seem to attempt to do so"[454]. For Probert and Brown, and I agree, it is important to adopt the standpoint of practitioners and to theorise law from the inside what, nowadays, would be called "the interpretive community" [Fish]. "... the question is not what is law, not even what is the legal process, but how is law felt, used, transmitted, or affected within the community of lawyers who, in a way, have the closest contact with law dynamics and its many aspects and complications"[455]



It is suggested "... that in many cases which cross the lawyers desk ... the lawyers are 'making law' at least as much as any court" and certainly "... the maximum potential of a lawyer to parlay social into legal judgments, as seen from the outside, would be greater than that of a judge seen from the outside. This is not an easy point to accept. This maximum potential exists because every happening is, from one perspective, unique"[471]. "From a law perspective, the right interpretation is ultimately that of the final official decision maker. Short of such final decision making, a lawyer is often for many purposes the ultimate interpreter of statutes, regulations, common law rules, and so on"[472]



Prior to some official decision, then, at one extreme the maximum potential is absolute discretion in the lawyers. No lawyer actually has such maximum freedom all the time, although some may enjoy it on some occasions when nothing is likely to happen to place their interpretations of law and fact into doubt. To convert Holmes's aphorism, the 'bad lawyer' would predict not what a court would do but what likelihood there is of being contested in some place that counts. What of the hypothetical lawyer at the other extreme, not only good but internally obligated, literally bound to the letter of the law ? Such a lawyer may even believe that the law is internally complete, externally closed, and exhaustively determines outcomes. Such a lawyer misconceives the fluidity of law which from the outside, is ambiguous, open-ended and susceptible to interpretation, interpolation and reconstruction. For such a lawyer unconscious influences would have maximum influence. Some lawyers knowingly give moral advice openly, others do so unwittingly through their interpretation of the law. For Probert and Brown, "... these extremes bound what must be the range of actual lawyering or even of a particular lawyer's range of law-fact operations ... [and] in this total range of lawyering lies a possibly great power to use all the norms of society".



Lawyers are communicants between officials and individuals. On one side are the values of individuals, on the other side, collective values. "The lawyer acts as a mediator in a way unknown to a court of equity or even a sympathetic jury" [473]. This is a theme recurrent in lawyers' ethics literature, the lawyer as "a special purpose friend" [Fried] and as one who furthers the autonomy of clients to the greatest possible extent consistent with community values. In a democracy, therefore, there is good reason to extend lawyering to all. Since knowledge is power, a lawyer's special knowledge is a special power. Given legal skills, a lawyer need not go to court to exercise power. Indeed, the power of the litigation lawyer is probably less than the power of the preventive lawyer or the lawyer in unilateral situations in that the litigation lawyer is dependent upon the court. But with respect to courts litigation lawyers have another power. They determine whether or not to unleash the otherwise inert power of court. This gatekeeper role is a very important aspect of the power of practitioners and it raises profound questions about accountability and lawyers' ethics.



Probert and Brown correctly state that Hart's emphasis is on the authority of law, the authority both of officials and of rules. But they see in his analysis a view that the authority of law is also invested in persons who are not officials and they conclude that " ...a special authority rests with lawyers. It is an authority closer to that of officials than private individual". Judges determine what rules are valid and these rules bind individuals. For Probert and Brown, "Lawyers seem to have a similar power" [478]. "It is only when there is doubt that judges are needed. When doubt rises to insoluble dispute, then judges may have to resolve such doubt. But lawyers are there first, almost without exception". "There are other kinds of doubt than disputes. Judges ordinarily have no power to resolve doubts short of dispute. Lawyers do. We may call it advising or counselling, but the lawyer's office is usually one of authority in this respect". "It might be ... objected that lawyers are not really the ultimate decision makers because they may be declared wrong by a court or administrative official. But these bodies in turn may be reviewed and reversed. A person does not have to rank at the top of the hierarchy to be an official or to have special powers to determine when laws are valid. Can there be any doubt that in the total hierarchy of authority lawyers have special powers vested by law and acknowledged by individuals?"



If, as I believe, Probert and Brown conclusively demonstrate that lawyers have a special power in society, questions crowd is about their moral responsibilities in the exercise of such power. Classical legal positivism marginalizes the relationship of values to law. If a law is validly made it should be strictly applied according to its meaning. Moral considerations should not sway the judge in the application of rules because that would lead to uncertainty and instability. Such an approach requires a judicial aloofness from pleas based on equity or policy. .



But how do legal and moral obligation run with respect to lawyers ? If they are merely citizens they should be obligated to law in the same way as anyone else. Interesting questions can be raised as to the role of lawyers in the law-morality relationship. A lawyer is not free to commit murder under the law. That obligation is both legal and moral. Yet a lawyer is not only legally free but morally expected to defend a murderer. How far may a lawyer go to aid a client in doing battle with the law itself ? What of corporate crimes ? And what does it mean when a lawyer takes an oath to uphold the law, especially given (a) "pervasive marginal discretion" of lawyers [Hazard] and (b) arguments for equitable, political, or merciful override ? Are lawyers morally permitted, or indeed required, to pursue legal change or to bend every, or any, rule to protect clients from legal sanction ? Where one morality meets another can, or should lawyers take sides ? Arguably, lawyers ought to be free within the law to promote social change, for example civil rights lawyers seeking to change American society [Greenberg, Crusaders in the Courts, 1994; Sarat & Scheingold, Cause Lawyering, 1998]. Would that extend to promoting a sex morality of one class against the law which promotes middle-class sex morality (as illustrated in practices criticised by a solicitor in "Rape and the Radical Lawyer" or by seeking to reverse the decision in Brown)? What of seeking to ban professional boxing? Assisting battered spouses by bending the law of provocation or diminished responsibility? Or reconstructing the English criminal law of blasphemy in order to further the interest of Islamic fundamentalists [ ex parte Choudhary (New Law Journal, May 18, 1990, p 702]? Or fighting the death penalty in America [New Law Journal September 25 1998, pp1405-6]



All this leads to the suggestion that not only are lawyers a significant element in the legal system, but also that lawyering involves more than legal knowledge; it requires moral evaluation. The legal system comes daily into contact with extra-legal values and lawyers are mediators between the values currently embedded in the law and those held by clients. Somehow, the lawyer has to mediate conflicting values. This raises important questions for legal education. Since, in the nature of legal practice, lawyers must mediate value conflicts, they should be better equipped to deal prepared with them. This requires a lawyers' ethics component in legal education and considerably more attention to lawyering and the role of lawyers than has traditionally been given in law schools and legal theory in Scotland and England.



If one adopts a theory of law wherein legal questions are not exhaustively determined by rules there will be a margin of appreciation, some room for manouevre or discretion in the application of the rules to concrete cases. Since the legal system makes contact with peoples' lives at least sometimes, perhaps often, through the mediation of lawyers, how these lawyers understand, interpret and apply the law becomes very important. If these lawyers approach that task critically, sensitively and imaginatively, theirs is a creative, developmental role. Of course there is no guarantee that these lawyers will apply their ingenuity to the production of "good" outcomes. Given the contested and polar context of law-application at least some lawyers, some of the time, will be seeking to produce outcomes that some member of society, perhaps a majority, would regard as morally problematic. [end of Lecture One?]

==============

[Lecture Two?] Spaulding v Zimmerman [116 NW 2d 704 (1962) Supreme Court of Minnesota] is one widely cited example. The plaintiff was injured by a car driven by the defendant. Lawyers for both parties conscientiously arranged for medical examinations. The defendant's medical expert reported that an aorta aneurysm had been caused by the accident. The plaintiff's medical expert had not detected this. The defendant's lawyer did not disclose the tenor and content of the medical report and negotiated a settlement more favourable to the defendant that could have been reached had the plaintiff's lawyers been fully advised of the heart problem. In such circumstances the defendant's lawyer has no duty of disclosure and, indeed, has a duty of loyalty to keep the information from the plaintiff, even if the condition is life-threatening and operable. Confidentiality issues also in Ablitt v Mills & Reeve The Times October 25, 1995 [Lexis] but I am anticipating myself and I will return to these absorbing issues in later lectures.



Another illustration of morally problematic outcomes is provided by ingenious interpretations and inventive schemes calculated to reduce a clients' tax or child maintenance liability. Although the price of freedom is dissidence and resistance to authority, there must be a limit to how far lawyers can in good faith manipulate the meaning and application of a law in the interests of clients. Current perceptions of lawyers' conduct suggest that such a limit is pretty far out and that some lawyers, perhaps most, treat the law instrumentally rather than a source of normatively legitimate constraints on conduct. If, as Hart observed, law makes conduct "in some sense non-optional" [Concept, 6; 80] it makes such conduct non-optional as much for lawyers as for anyone else. However, some modern versions of realist and critical theorising have so denuded law of authoritative content and normative constraint that judicial decision making is now commonly regarded solely as result-led hunch-judging and lawyering in general is widely perceived as a game of player's discretion in which no moves are barred. On such assumptions, lawyering is merely a matter of taking sides, there being no normative constraint nor authoritative content within law that limits what lawyers can say or do on behalf of clients. To the extent that such theories legitimate "ninja-lawyering", these theories are ethically unacceptable. Lawyering is not necessarily war carried on by other means.

An adventure in applied ethics: This theoretical approach to law provides a reason for selecting a life in the law. Such a life is an adventure in applied ethics. Law is about sensitive judgment and contested claims. It is about self and others and it involves striking a balance between the demands made upon the citizen to conform as a team player and the individual's need for personal space - freedom under the law:- "Leave to live by no man's leave, underneath the Law" [Kipling, "The Old Issues"] Those who seek an education for life or who seek the educated life would do well, on this view of the subject, to study and even practice law. James Boyd White and Anthony Kronman have developed independent arguments that lead to a similar conclusion. The former plausibly suggests that the study of law is particularly apt to teach how to function as a member of an inherited culture whilst retaining individuality [Heracles Bow: Essays on the Rhetoric and Poetics of Law, 1985, pp 49-59]



Kronman brilliantly develops the idea that any instrumental justification for the life of a lawyer whether couched in terms of income to be earned or in terms of social good to be done misses the point and presses on to offer an intrinsic justification. The life of the lawyer, he suggests, is to be justified not by what it brings but by what it is. It is the life of the good judge. Judgment, for Kronman, is "non-deductive" and "non-intuitive" in that it has an argumentative dimension. Furthermore, judgment is constitutive in that the important life decisions one makes constitutes, at least in part, the self that one becomes. Good judgment is concomitant with good character. The better the judgment the greater the chances that individuals can live amicably with themselves. One develops self knowledge and character through the exercise of judgment.



Kronman clinches his argument with an account of the good lawyer whose work is marked by subtlety and imagination and, above all, wisdom. The characteristic virtue of the lawyer is, indeed, judgment. There is intrinsic worth in the life of the lawyer who lives up to the high ideals of the profession. The intrinsically good person is the person of developed and sound practical wisdom and a life in the law is conducive to such character. In short, to be a lawyer is a better way to be. Kronman is well aware of the modern tendencies, economic and educational, that threaten the realisation of the ideal. Indeed, much depends upon the economic, educational and professional culture surrounding the individual lawyer. That may be as destructive of the virtue that Kronman extols as supportive of it.



Not all thinkers believe that a life in the law necessarily develops good character. To some just the reverse is the case. Socrates contrasts the lives of philosophers and lawyers in a dialogue with Theodorus: "If you compare people who have been knocking about in law courts and such places since they were young with people who have been brought up in philosophy and other such pursuits, it's as if you were comparing the upbringing of slaves with that of free men... the philosophers always have ... plenty of time; they carry on their discussions in peace ... the others [scil lawyers] ... are always short of time when they speak, because they're hurried on by the clock; and they aren't allowed to make speeches about anything they please, but the opposing counsel stands over them, equipped with compulsion in the shape of a document specifying the points outside which they may not speak ... their speeches are always about a fellow slave, and addressed to a master ... Because of all that, they become tense and sharp, knowing how to flatter their master with words and fawn on him with deeds, but small and crooked in their minds. The reason is that they have been deprived of growth, straightness, and freedom, by the slavery they have suffered since they were young. It forced them to do crooked things, and imposes great dangers and fears on their minds while they're still soft; and because they are unable to withstand them with the help of justice and truthfulness, they turn at once to falsehood, and to retaliating against injustice with injustice, and they get twisted and stunted in many ways. The result is that they finally come from youth to manhood with nothing healthy in their intellects: though what they think is that they have become clever and wise" [Plato, Theaetetus (172 173) John McDowell trans, Claredon, 1973, pp 48-9].

Much therefore depends upon the ethos of lawyering in a community. Standards can decline as well as improve and there is a considerable body of evidence throughout the common law world that lawyers' standards are unacceptably low. If, over time, the moral edge is eroded and the moral boundaries pushed out, without adverse critical reaction, the new boundaries become the accepted standard. That the collective standards of the legal profession have fallen seems to be widely accepted and effort is directed less towards denying it than explaining it, usually by way of some version of economic determinism. The official reaction to the drop in standards has been an attempt to raise the level of performance by implementing codes of conduct, increasing (self-)regulation and concentrating on education - the residual legatee of all social problems - but, sensibly, not only for those intending one day, perhaps, to practise law but also, by way of continuing legal education, for those already in practice. The question remains, however, whether self-regulation can suffice. The radical option of a Legal Services Complaints Commission or some such independent institution or officer may be necessary to halt the perceived slide in ethical standards and to bring fairness to bear in the handling of complaints against lawyers. Yet self-regulation is taken by many to be definitive of a profession and the law Societies north and south of the Tweed have shown no enthusiasm for relinquishing this function. There is current disquiet in England and I have had it in mind to develop a Seminar on "Control of Professional Conduct:Institutions and Practices" but meantime see 1999 New Law Journal 589; and 743-744]



Leaving to one side such questions of institutional reform, I turn to the question of teaching ethics to lawyers and at once I encounter a whole raft of problems about the nature of ethics, moral education, moral expertise, in general, long before I reach question spefically related to lawyers' ethics. I turn , with MacNiven, to Western Moral Traditions:- (1) Liberal Utilitarian (Mill); (2) Kantian. Both have deep roots in western culture. Kantianism represents an older, conservative tradition, which is related to both secular and religious humanism. It also contains elements of classical natural law thinking. Utilitarianism represents a newer, liberal tradition which is associated with the rise of modern science. It has tended to be at the cutting edge of moral reform in contrast with Kantianism which tends to be conservative.



Both Kantianism and Utilitarianism have been presented in many different forms. No agreement among philosophers as to which form of Kantianism or Utilitarianism is best. What I am looking at is a representative version of each of these two traditions and not seeking to offer an account that is a correct exegesis of the work of any one philosopher. Perhaps I am even cutting it a bit in cartoon and presenting these two traditions as extreme forms or ideal types.



Despite opposition, there are commonalities:

1. Shared roots in Northern European, Protestant, Christian culture

2. Each (in its own way, is trying to establish a scientific ethics. Both are foundationalist in that they seek a rational base for morality, logically independent of any cultural or social context [NB No ought from is , i.e. Hume's guilotine. No set of non-moral premisses can entail a moral conclusion - logical demonstration possible here]

3 Both believe in a radical individualism; individuals are ontologically and morally independent of the social groups to which they belong

Philosophical Differences: [NB "Computational ethics"] Utilitarians are empiricist and scientific. They offer a scientific, computational ethics. Morally right answers can be computed. The morality of an act depends upon the consequences it produces. Consequences are observable. Motives are not. Kantians are rationalists in ethics; all ethical knowledge based on reason. Ethics cannot be reduced to mere empirical science. Kantianism is not consequentialist but founded upon motives and intentions. For example, giving money to charity to establish a tax loss would be morally ok from a Utilitarian perspective but morally dubious for a Kantian. Utilitarianism regards moral judgments as descriptions of states of affairs, which can be shown to be true of false by reference to experience. For Kantians, in contrast, moral judgments are prescriptions or commands.



NB categorical imperative - "act only on that maxim which you can will to be a universal law. Kantians are universalists. Rules have an absolutist status. For Direct or Act Utilitarians, rules are downgraded. They are contextualists, situationalists, and particularists who believe that the rightness or wrongness of an act depends upon its context. [NB Act cf Rule Utilitatianism]. For act-utilitarians particulars are ontologically prior to rules. Therefore, a well-established particular judgment will always override a useful moral rule. All moral rules, therefore, will have exceptions. Any moral rule can be disregarded if a particular act although contrary to the rule will produce the greatest happiness or the least unhappiness. By contrast, for Kantians a true universal moral rule cannot have exceptions. We are in the realm of moral absolutes. Killing human beings is wrong: full stop; however and wherever or for whatever reason. Circumstances do not alter cases. The right to truth like all human rights is valid for all persons everywhere in all circumstances. Sometimes Kantianism can overcome the resultant appearance of absurdity by rewriting the rule to embrace an exception so that moral difficulties disappear. Refinement and re-description is the Kantian way of achieving consistency. Kantianism treats the "Pauline Principle" as an absolute: Never do evil that good may come. As against which, Utilitarianism appeals to the lesser evil all the time. Evil means are justified by good ends.



Kantianists are strict objectivists, holding that the rightness and wrongness of the act is independent of the person making the judgement. Utilitarians are not strict objectivists but are wary of any radical subjectivism. Both approaches seek some abstract rational grounding for morality.



The current practical and theoretical anarchy in moral philosophy is due in part to a questioning and an abandoning of the belief in foundationalism. Absent any clear and agreed foundation, reason or reason alone cannot provide morally correct answers. Hume's law is taken as the high water mark of the bankruptcy of foundationalist theories of ethics Then Utilitarianism leads to emotivism, and Kantianism leads to existentialist ethics. Non-cognitivism in ethics may appear to present insurmountable problems to the legal ethicist.



Another difference is that Utilitarianism is concerned mostly with right and wrong conduct.. Kantianism is concerned with intentions and motives. For Kantianism it is the character of the agent which matters. For Utilitarianism it is what happens that counts. For Utilitarianism, morality is essentially social and beyond or above the individual. For Kantianism, morality is essentially private and natural to the individual. So for Utilitarianism morality is a human contrivance or artefact, eg a social contract. For Utilitarianism there are no duties to self, only duties to others (nb prudence cf morality). Private acts which don't harm others are beyond the scope of morality. Kantians, however, hold that there are duties to the self and even that these duties are central. Deontologists treat morality an end in itself . For them adhering to a system of duties has intrinsic worth. For Utilitarianism adherence to duty has only instrumental value.



Differences of psychology: Utilitarianism goes well with empirical association psychology which holds that all our ideas are acquired rather than innate. Kantianism, per contra, holds that fundamental ideas are innate rather than acquired. Reason always takes precedence over desire. For the Utilitarians, as Hume put it, "Reason is the slave of the passions". John Austin had some difficulty accepting this primacy of emotion: "To think that the theory of utility would substitute calculation for sentiment, is a gross and flagrant error: the error of a shallow precipitate understanding. He who opposes calculation and sentiment, opposes the rudder to the sail, or to the breeze which swells the sail. Calculation is the guide and not the antagonist of sentiment. Sentiment without calculation were blind and capricious; but calculation without sentiment were inert" [Province, p 52]. And this also hints at a problem for Kantian theory. As Aristotle put it "Knowledge by itself moves nothing", i.e. reason is inert.



There are also radically different views about virtue. For Kantianism, virtue is a trait of character which facilitates the conduct of a moral agent and relationships between moral agents (eg Kronman). It is a way of being. For Utilitarianism virtue is a disposition which benefits self or others. It is a way of achieving. And there are moral or disagreements. Utilitarianism regards, say, the bombing of Hiroshima as morally legitimate (it brought the war to an early end). Kantians think it morally wrong, indeed monstrous, because it involved the deliberate killing of innocent people. Kantians subscribe without qualification to the "Pauline Principle" of never doing evil that good may come of it. {See Sheriff's ruling that nuclear weapons are illegal - The Scotsman 22nd October, 1999] Again, for Utilitarianism, life is valuable only when it possesses an acceptable balance of happiness over unhappiness. Kantians believe that life is always valuable no matter what its quality (sanctity of life). Utilitarianism seeks to create a benevolent and caring society; Kantians want to create a just society based on the rule of law and respect for human rights. So for Utilitarianism goods can be distributed according to need even where that requires preferential treatment. For Kantianism goods should be distributed fairly. Picking up on the account in Speilgelman ["Integrating Doctrine, Theory and Practice in the Law School Curriculum: The Logic of Jake's Ladder in the Context of Amy's Web" 38 J Legal Educ 243 (1988)], Utilitarianism might be characterised as "feminine" (Amy) whereas Kantianism seems "masculine"(Jake). The justification of punishment differs too: Utilitarianism emphasises deterrence, whereas Kantianism is retributivist. The concept of freedom differs too: Utilitarians (liberal) think that we should be free to do whatever we want, so long as it harms no one (other than ourselves). Kantians think that we are never free but must always act morally. So even a common base in individualism produces a different outcome. As to animals and nature, Kantianism holds that only humans have intrinsic value (homo-centric); whereas utilitarians think that any species that can feel pleasure and pain is valuable ["all sentient being" in the words of John Stuart Mill or John Austin], i.e. zoo-centric.



So can one construct any unified system of ethics? Can these differences be transcended? Most of us are neither strict Kantians nor strict utilitarians, but some kind of mixture. Frequently our most acute moral problems occur where the two traditions are in conflict. We are here in the area of moral incommensurables, e.g. Satre's tormented angst-ridden choice between freedom fighting of nursing his ill mother. Hume's law only applies to foundationalist systems. What of idealist systems ? In these our duties, rights, liberties, and responsibilities are defined by our social roles, by the function we perform in society. The following examples come from MacIntyre's After Virtue "He is a sea-captain therefore he ought to do whatever sea captain do. This watch is grossly inadequate, irregular in its time-keeping, and too heavy to carry around comfortably. Therefore this is a bad watch. This farmer gets a better yield for his crop per acre than any other farmer in the district. He has the most effective programme of soil renewal anywhere. His dairy herds win all the first prizes at the agricultural show, Therefore, he is a good farmer" [MacNiven, p 41]. Good, on this view, is good relative to function. So we can overcome the is/ought by treating a social role as the basis for conduct. This ties closely into feminist accounts of ethics, such as those offered by Virginia Held ["The Division of Moral Labour and the Role of the Lawyer" in Luban, The Good Lawyer (1983) pp 60 - 79; "Feminism and Moral Theory", in Kittay & Meyers, Women and Moral Theory (1987), pp 111 - 128] and one interesting aspect of role morality is the possibility that women in general and mothers in particular are participants in role differentiated morality just as members of various professions may be [see, further, Trollope, Orley Farm and/or Rosenberg, Mitigating Circumstances] I think this is potentially an interesting link between professional ethics and feminist theory which some of you might wish to explore in the first seminar.



Kantianism and Utilitarianism are not commensurate and will necessarily produce irreconcilable conclusions (eg killing innocents). Currently ethics is a plurality of competing theories. Some kind of unified theory would appear to be necessary for professional ethicists to solve any moral problems but there is no unified theory of ethics. So what we have at present is unacceptable and no unambiguous or grounded moral guidance or advice is available from the professional ethicists. This makes moral philosophy strangely irrelevant to our actual lives. So can moral philosophy be practical ? Is there any (basis for) applied ethics ? What, in particular, of moral education? Are there moral experts? If I am one, what do I have to teach, given that theoretical ethics and practical ethics seem so far apart? So with what, if anything, can we replace the bankrupt and sterile opposition of Kantianism and Utilitarianism? Can we construct an idealist or holistic approach?



1. Well, any such construct would have to accept that moral conclusions cannot be derived from non-moral conclusions [OK - there is a logical demonstration]]

2. But any such construct can acknowledge that we are committed to some form of moral education and moral expertise

(A) Education: there are no morally neutral systems of education. Liberal education proceeds on the basis of a cluster of values such as the fundamental worth of all persons regardless of race, creed, colour, sex, or background. We teach equality and democracy because we believe it morally preferable. But it is necessary to distinguish between moral education and indoctrination. Moral education affirms that the learner is an autonomous moral agent whereas indoctrination denies this. So if the objective is to produce mature moral agents, moral education is preferable to indoctrination, albeit riskier from the point of view of the state in that mature moral agents may reach judgments about the moral legitimacy of the state's projects and conduct themselves in ways which thwart the state's projects. The same is true for sub-statal organisations, including professions.

(B) Expertise? Are there moral experts like other professional experts such as engineers, doctors, lawyers ? Is the very suggestion not obviously autocratic and paternalistic? On what basis can anyone claim access to correct moral answers ? Clearly an alternative conception of expert is necessary when we look at moral expertise So what kind of expertise might qualify? Saint, hero, great moral philosophers (I doubt that I would take moral advice from Russell or Ayer !!!), parents, pastors, religious teachers, college tutors, wise friends??? Which ?



Now the moral dilemma is a pervasive and fundamental experience of moral life - Neither Utilitarianism nor Kantianism takes moral dilemmas seriously. So look at the general idealist account. Integrate what is true and valuable in both Kantianism and Utilitarianism at both theoretical and practical levels. This is F H Bradley's project. Neglected in English speaking countries until recently. Idealism involves substituting descriptive for prescriptive ethical theory. Prescriptive ethical theories like Kantianism and Utilitarianism are designed like prescriptive logic to tell exactly how to reach a correct indisputable answer to logical or moral questions. Descriptive theories such as idealism seek to explain and help us understand our intellectual and moral universe. And in any event, the prescriptive solutions offered by Utilitarianism and Kantianism are inadequate. If in hard moral cases one is either always Kantian or always Utilitarian then either Utilitarian or Kantian values will not receive adequate recognition in the proposed solution. Idealism is more bottom-up than tip-down ethics. So look at ethics through the prism of a series of moral dilemmas of contemporary life, drawing out both theoretical and practical dimensions, looking at these questions first in Utilitarian, secondly in Kantian, and thirdly in Idealists terms, and always seeking to create richer and more highly integrated intellectual and practical unities. We shall not be concerned however with telling people what they ought to do. The moral philosopher is not a moralist who tries to indoctrinate. Pontification has no place. We need a different profile of what a moral expert is. Can there be experts in morals, as there are in law, medicine, or engineering??? Well (a) moral decisions are not (merely) technical; and (b) moral decisions are very personal matters - they belong to unique individuals acting in unique circumstances and it a person's values contribute to a person's uniqueness. But our individual and personal values are informed to a greater or lesser degree by the institutional systems of which we are and must be members and these institutional moralities which originally defines our values for us. We remain each of us an individual having to reach our own decisions about what we must, or ought to do... and how we can reconcile out personal hopes and aspirations with the demands of institutional moralities. No one else can do this for us. Professional ethics is one such institutional morality



On this view, moral philosophers must approach their (professional lawyer) audiences as if lawyers are rational agents who are capable of making up their own minds about right and wrong ... one must, therefore recognise the autonomy and moral values of others (including lawyers) and explore intellectually how such values can be realised within the institution of lawyering without doing fundamental damage to the institutional (and socially valid) values of lawyering. The moral expert therefore is revealed in a new guise as the moral educator who facilitates the creativity of moral agents. [End of Lecture Two?]



[Lecture Three?] Consider Spaulding v Zimmerman aain: A motorist negligently collides with and injures a pedestrian. Both parties consult lawyers. Both lawyers obtain medical reports. The medical report obtained by the motorist's lawyer indicates an aorta aneurism, caused by the collision, which is life-threatening though safely operable whereas the medical report obtained by the pedestrian's lawyer makes no mention of any such condition. In the course of negotiations it soon becomes apparent to the motorist's lawyer that the pedestrian's lawyer is wholly unaware of the existence of the aorta aneurism and is willing to accept on behalf of the injured client a sum considerably lower than appropriate to the actual circumstances. In that state of knowledge, does the motorist's lawyer do anything improper in concluding a binding settlement at the lower figure ? Is it ethical for a lawyer to take advantage of the other side's ignorance of crucial facts ?



On the standard conception of the lawyer's role [though just how accurate this "standard" is requires scrutiny], the motorist's lawyer has no professional ethical duty to disclose to the other side, or to anyone else, the existence of the aorta aneurism. Indeed, on that same standard conception, the motorist's lawyer has a duty not to disclose any such information. The standard conception is that the lawyer is not accountable for the consequences of zealous and single-minded pursuit of the interests of the client. In its extreme form the standard conception invokes the image of the lawyer as "hired gun". On such an instrumentalist conception, a "good lawyer" is simply one who is effective in facilitating or realising objectives externally determined by clients, irrespective of the moral quality of these objectives. A particularly "good lawyer", on this instrumentalist view, is one who makes the law serve the interests of clients, even to the extent of reconstructing the law, taking advantage of loopholes in the law, subverting the (presumed) intentions of the legislature, and thwarting its (presumed) objectives where necessary in order to deliver.



On this view of lawyering, sophisticated and subtle restructuring of clients' finances in order to minimise liability to taxation or to child maintenance is wholly legitimate. Indeed such conduct may justifiably be perceived as obligatory upon any lawyer who takes seriously the implications of the professional duty of conscientious and committed pursuit of the client's interests. Whether or not "law", itself, is an essentially contested concept, legal practice is an adversarial activity and outcomes are frequently contested, sometimes bitterly and involve conflicts of deeply held values. Those who object to the outcomes achieved for clients by shrewd tax lawyers and ingenious family practitioners and who therefore charge such practitioners with "immorality" may fairly be charged themselves with moral insensitivity and a failure to understand the real moral dilemma that faces a conscientious lawyer whose professional duty it is to pursue objectives widely perceived as immoral and, perhaps, also perceived as immoral by the lawyer.

Be all that as it may, on the standard conception lawyers are not morally accountable for the results of their efforts and cannot be made accountable without destroying their essential function. Lawyering thus appears to involve an institutional exemption from the normal dictates of moral conscience. This disturbing conclusion may be reinforced by reference to some of the tacit major premises of lawyering in Anglo-American common law systems.

First, it is for the parties and not for the court to ingather and present both the relevant facts and the applicable law. Such so-called "party-control" of litigation, however, may, on analysis, prove to be neither economically efficient nor ethically optimal in terms of institutional design in that it may add unnecessarily to costs and provide opportunities and temptations to manipulate procedure in order to foster a favoured outcome, including forum-shopping, selective use of expert testimony, and jury-vetting.



A second premise is that truth will necessarily emerge out of this clash of zealous advocacy especially if conducted under the watchful eye of an impartial umpire. This institutional application of John Stuart Mill's argument for freedom of expression is, however, here rendered implausible by inequalities of knowledge and access to relevant information, and by judicial commitment to some set of values which may impact adversely upon the client's objectives. In addition, the vast majority of disputes are settled, albeit sometimes "at the door of the court". Accordingly, in most disputes the reality is that there is no neutral umpire seeking to ensure fair play in the conduct of the disputants. The parties and their legal advisers determine for themselves just how they will conduct the dispute and some will play hard ball.



A third underlying assumption is the best society is that which facilitates the pursuit by individuals of their own privately determined vision of the good. Even if private vice does not lead to public virtue, lawyers should not seek to pass clients' ends through any moral filter but should seek only to realise clients' ends, however morally disreputable these may appear to be. Indeed, on liberal assumptions, lawyers should not exploit the lawyer-client relationship surreptitiously to enforce their own or community morals. The enforcement of morals is, on this view, no more the business of lawyers than it is on classical liberal arguments any business of the law. Yet this image of lawyering has come in for serious criticism from philosophers. David Luban and William Simon have both argued for "moral activism", that is, the view that lawyers should assume greater responsibility for judging the ends posed by clients or potential clients.



Returning to the case of the injured pedestrian ignorant of the extent and nature of injuries suffered, the standard conception of the lawyer's role and established principles of legal ethics lead to an outcome different from that flowing from any critical or positive morality which puts a premium on human welfare. Many people, including some lawyers, have moral difficulty with the case and not only with the "unfair" outcome in terms of the compensation negotiated which is well short of what is appropriate in all the circumstances of the case but also with the very real risk of an avoidable death flowing from the professional duty of silence.

Many see this as a problem of "legal ethics" and seek solutions in the study of that subject. So what might be meant by "legal ethics"? Clearly, professional ethics fall to be distinguished from both current community standards and critical moralities. "Professional ethics" may refer to that body of rules and rulings by which a professional group collectively regulates itself. This might be no more that the (important) "law of lawyering". So much so that to some philosophers it may appear to be an unacceptable dilution of the concept of "ethics" to apply that (honorific) term to the practices and standards of working professions, no matter how worthy, internally coherent, well-articulated (for example in written codes), and institutionally supported (for example by complaints officers and disciplinary committees). Whatever view one takes of these conceptual questions, the practical question remains: What, if anything, justifies the lawyer's institutional exemption from the promptings of moral conscience ?



An ethically sensitive lawyer might deny that the lawyer's role necessarily involves exemption from moral conscience and seek to regulate the lawyer-client relationship either according to current morality or to principles warranted by one or another critical morality or according to the lawyer's own internalised, personal morality. Thus in the case of the pedestrian ignorant of the aneurism such a lawyer would put to the motorist client (or to the insurance company that stands in the motorist's shoes) the "obvious" immorality of taking economic advantage of the pedestrian's ignorance and of risking the pedestrian's life through non-disclosure. Perhaps such a lawyer would go further and insist, even on pain of withdrawing from the case, on disclosing the existence of the aneurism. Such ethically sensitive conduct, though urged upon lawyers by some, may achieve little and greatly embarrass the lawyer professionally.



If in spite of the "obvious" immorality the motorist/insurer client insists that the existence of the aneurism be not disclosed, the ethically sensitive lawyer's withdrawal from the case leaves the client free to employ another (possibly less morally sensitive) lawyer and free, too, not to tell the new lawyer anything about the medical report. In such circumstances, the "obvious" immorality remains. Suppose that the original lawyer therefore goes further and personally discloses directly to the other side the existence of the aneurism. On the standard conception of the lawyer's role this is seriously unprofessional in that it breaches the lawyer's duties to the client of loyalty and confidentiality and it would also give rise to a cause of legal action sounding in contract for breach, whether or not the client actually chose to institute any such proceedings. Those who advocate greater moral sensitivity and activism in the solicitor-client relationship appear to be more than a tad unrealistic unless the proposal is also radically to revise the adversarial system of justice and the liberal tradition that sustains it. Of course, the adversarial system of justice and the liberal tradition are not immune from criticism and radical revision but if that is the proposal the argument has too swiftly moved a long way from the original focus on professional ethics and accountability and conscientious lawyers can legitimately be heard to ask about their ethical responsibilities here and now, pending radical restructuring, if any, of the adversarial system and liberal society.



Accountability, Moral Philosophy and Applied Ethics: For philosophers questions of accountability, including the accountability of professions in general and lawyers in particular, lead very naturally into a discussion of ethical issues and some philosophers are then very quick to privilege their (allegedly universal) concepts and values and impose these upon members of the profession from the outside with little or no appreciation of or respect for the internal structure, including the ethical structuring, of the profession. This rather obviously loads the judgmental dice against the conduct of members of the profession concerned.



For example, from some feminist ethical perspectives a lawyer who defends one charged with rape on the basis of an honest but mistaken belief in consent is simply acting immorally and any reference to the ethics of the lawyer's profession is from such a privileged perspective taken only as compounding the original immorality. Again, from a utilitarian perspective a lawyer who, knowing or very strongly believing in a client's guilt, nonetheless puts the prosecution to the time, trouble and substantial expense of proof is to be condemned and the utilitarian will give short shrift to the lawyer's own defence that so long as there is a presumption of innocence it is wholly ethical to put the prosecution to proof of its case.



It really is curiously self-defeating and intellectually sterile to consider the ethical quality of the conduct of lawyers only on the hypothesis that lawyers are no different from moral agents in general and to conclude, therefore, that lawyering is necessarily immoral because the lawyer's conduct does not conform to the general standards of this or another privileged ethical theory. I take it that at least part the point of applied philosophy is seriously to re-assess general and abstract philosophical theories from the (presumptively valid) perspective of practical activities that appear to be distorted and devalued by the general theory. For example, the general theory of utilitarianism distorts and devalues due process of law. Thus plea-bargaining, despite the known risks of innocents pleading to a lesser charge rather than risk conviction of a greater, is presented as a legitimate, perhaps even a required, option from a utilitarian perspective. Anyone who regards innocence as a moral value must have serious reservations not only about plea-bargaining but about any criminal justice system implemented on strict utilitarian lines.



Rather than look at lawyering from the perspective of an unmodified general ethical theory such as utilarianism and pronounce it ethically defective, I propose as an applied philosopher to look at general ethical theory including utilitarianism from the vantage point of lawyering. Among the values embedded in and realised through lawyering (albeit imperfectly in an imperfect world) is the transcendent value of innocence and, indeed, non-degraded Anglo-American lawyering might fairly be regarded as an activity which treats innocence as a non-negotiable value. On that basis plea-bargaining is professionally unethical because it necessarily treats innocence as a negotiable commodity. It treats an accused as means only and not as an end and should be condemned as a perversion and distortion of the criminal justice system. Innocence is not, however, being proposed as an absolute value. As general theory ethical absolutism is no less problematic than is utilitarianism. On the view canvassed here, it is solely by virtue of the lawyer's role that innocence (together with other central values such as justice and truth) has this privileged status.



From a perspective internal to lawyering conduct that would otherwise justly be criticised as unethical and contrary to the principle of utility, may be seen as ethical, perhaps even heroic. For example, lawyers who acted for those originally convicted of IRA bombing and killings and lawyers who acted in the subsequent successful appeals many years later, despite great unpopularity and hostility, even from fellow lawyers, acted for justice and truth, and refused to treat the innocent victims as means only irrespective of the embarrassment thereby generated for the police forces involved, for the criminal justice system and for the government. It was simply not a moral option for these lawyers to walk away from those asserting their innocence and the heroic quality of the lawyers' conduct in these cases would remain even had their side of the argument not ultimately prevailed.



I suggest that ethical assessment of professional conduct ought to take account of the guiding values of the profession and not consist merely of judgment by reference to external (and allegedly universal) ethical principles. I should add that even on an internal assessment, judging layers according to standards intrinsic to lawyering, the legal professions in Anglo-American jurisdictions have no cause whatsoever for complacency. For example, at least some of the miscarriages of justice that have disfigured the English criminal justice system recently occurred because some lawyers did not conduct themselves according to the internal values of lawyering [fn Ward, prosecution lawyers failed to disclose crucial information, cf Chamberlain; Kiszko]. The extent to which lawyers' conduct actually falls short of these values is, however, primarily a sociological enquiry whereas the nature and extent of lawyers' ethics is question of applied philosophy.



At issue is whether legal ethics is contained within or is distinct from ethics in general. Philosophers critical of lawyers have argued that lawyers should take ethical responsibility for their clients' ends and assess these according either to current morality or to some privileged critical ethical theory, such as utilitarianism, rights theory, or the univeralisable categorical imperatives associated with Kant. Ethics in that tradition is a highly rational and deductive business (and this is sometimes described or stigmatised as an "ethics of justice"). Criticism from a different tradition, and here one thinks of Carol Smart, Martha Minow, and Virginia Held, among others, repudiate this rationalist, deductive, computational approach to ethics and privilege intuition, emotion, and context. On this second approach, ethical thinking is a very intuitive business, devoid of principles and seeing the ethical point is rather like seeing the point of a joke. Thus an "ethics of care", perhaps drawing on Aristotelian and Humean notions, is advocated and developed into an ethics of feeling, of intuition, even of love, sometimes meaning Christian love, eg Fletcher's "situation ethics".



In criticising lawyers from the moral point of view, one can adopt current moral standards but one may find that these are so many and varied as to give but little guidance. A lawyer faced with a moral dilemma may find common morality altogether too general and unarticulated to apply without considerable interpretation and reconstruction to the issue in hand. One interesting project is to consider how helpful common morality is in cases such as the KKK or the Long Black Veil [spell out some details]



A critical moral theory, such as "legalism" (Shklar), utilitarianism, rights theory, or principled universalism on the one hand, or emotivism, intuitionism, or caring is only as good as its underpinning but, in keeping, with the general moralising, proselyting "missionary" approach, none of these seem at all anxious to learn from legal ethics. Ted Schayer puts the point brilliantly in his article "Moral Philosophy's Standard Misconception of Legal Ethics" but, regrettably, does not develop his sharp insight as fully as it merits. The philosophers, he says, "... find nothing of general value in the way lawyers address their ethical problems". This is "curious" and "regrettable ... Because law practice so frequently involves moral risks, lawyer's reflections on ethics just might contain, like law itself, a vein of hard-won understanding that philosophers could mine for the benefit of non-lawyers. But mining cannot be expected from those who come to new territory as missionaries rather than as prospectors. And missionaries bent on converting the bar are what the philosophers have mostly been" [1531] The suggestion, then, is that legal ethics, with its emphasis on roles and relationships might have more to contribute to moral philosophy than moral philosophy has to teach legal ethics. The point has been well made by Alasdair MacIntyre in "What Has Ethics to Learn from Medical Ethics ?" (1978) where he criticises moral philosophers as "... a kind of intellectual peace corps, treating the medical profession a morally underdeveloped country".



Moral philosophers (eg Wasserstrom) treat moral reasoning from the moral point of view, that is to say from the point of view of the "universal agent" as primary and whereas they acknowledge the existence of a role-differentiated ethics of "special duties" (Bradley) and dispensations, the universal perspective is the default mode and role-differentiation therefore calls for justification. Macintyre is critical of such privileging of the abstract agent. He claims that "... any rational moral evaluation requires seeing an actor in some role ... no one is ever an abstract moral agent ... moral agency is embodied in roles such as that of the physician, the patient of the nurse". He then seems to suggest that traditional moral philosophising may have matters upside down: "If moral agency is exercised through roles, then the questions that ought to be addressed are much more specific than those with which moral philosophy is conventionally concerned... The moral agent turns out to be no more and no less than both the sum and the unity of his roles embodied in a single person. The abstract ghost of conventional ethics, man as such ... has to be replaced by this much more interesting figure" [1536/46-47]



This is a promising inversion. Schneyer agrees: "... it often seems difficult to discern the principles that would or should govern one's behaviour in a given situation without imagining oneself in some social role, relationship or practice tradition". So role and situation - context - is important in deciding, say, whether to feed a particular child - my son, my son's babysitter, my neighbour's son, or a stranger. What may be exciting is reconstructing ethics from the bottom up, as it were, rather than from the top down. None of us experiences ethical problems in the abstract, universalistic realm of the pure moral agent. We, all of us, experience moral problems in context, usually that of a relationship, or a role, such as parent, police officer, friend (or lover), and lawyer. Anglo-American moral philosophy (whether utilitarian, rights based, or intuitive) decisively rejected this "micro" level of ethicising and developed the "macro" level as a theory for all, any, and every rational being when idealist writers such as Bradley ("My Station and Its Duties"), Greene and Bosanquet were declared persona non grata either on the (unpersuasive) Popperian basis that Plato + Hegel = Hitler, or as being too descriptive and insufficiently critical and prescriptive.



What is of more than passing interest in this reconstructed approach to moral philosophy is the similarity of its concerns to some aspect of feminist ethical debate (Kittay & Meyer) and by way of illustration, I refer to two novels: Orley Farm, by Anthony Trollop and Mitigating Circumstances by Nancy Taylor Rosenberg (Orion, London 1993). Both these books turn in part upon the legitimacy of role morality and, in particular, upon the idea that a mother's role, or a lawyer's, may involve some dispensation from the promptings of (universalistic) moral conscience, or of community morality. Consider, too, the thematic issue in John Grisham's (The Pelican Brief, The Firm) A Time to Kill (first novel): "One day I stumbled upon a horrible trial in which a young girl testified against a man who brutally raped her. It was a gut wrenching experience for me, and I was only a spectator. One moment she was courageous, the next pitifully frail. I was mesmerised. I could not imagine the nightmare she and her family had been through. I wondered what I would do if she was my daughter. As I watched the jury, I wanted personally to shoot the rapist. For one brief yet interminable moment, I wanted to be her father. I wanted justice. ...I became obsessed with the idea of a father's retribution. What would a jury of average people do to such a father ? Naturally there would be a great deal of sympathy, but would there be enough for an acquittal ?" [ix-x]



Two questions might be posed:

1. Should lawyers go beyond current professional standards (Neutrality, Non-Accountability, and Partisanship) and seek to impose their (own personal) moral views onto client's ends, withdrawing from acting if needs be ? [Luban says "yes"; Schneyer and Ellman and Tur say "no"]

2. Should lawyers pursue objectives for clients where the lawyer disapproves of the client's ends and in particular should lawyers assist clients whose projects involve or might involve law-breaking (e.g Greenham Common; "underage" active homosexuality; the "Trident Three"). Luban says "no"; Smart, Minnow and Tur say "yes" - multiple voices into law - legal pluralism. [KKK and ACLU]



My suggestion then, is that, properly understood, the lawyer's role-differentiated morality justifies a negative answer to the first and a positive answer to the second question. It seems to me that those philosophers who answer these two questions in the opposing way, whatever their intention, entail the merging of the lawyer's role into that of the ordinary moral agent and seek to substitute the deliverances of (their privileged) moral philosophy for the content of the law and the specialist role-morality of lawyering. Thus, even if law and professional ethics require confidentiality as in Spaulding v Zimmerman, on in Beltrami's illustration [fn], these philosophers would require disclosure or whistle-blowing if universalistic or community morality called for it. In opposition to that view, I think it preferable to attempt to construct a coherent view of the lawyer's role and ethical mission, from the perspective of lawyering even though that requires some departure from prevailing jurisprudential theories and an acceptance that in lawyering, as in life, one is bound to encounter conflicting values and "deviationist doctrines" [fn to Unger].



This calls into question Luban's approach to moralising the legal profession. Luban himself made use of the case of the wicked uncle (Annesley v Anglesea 17 How. St Trials 1139 (1743)). James Anneslsey was the only son of wealthy Lord Altham. He was expelled from the family home aged ten by his cruel father and his father's conniving mistress; kidnapped and shipped to America two years later by his uncle, the Earl of Anglesea who wished to claim the Altham estate for himself; indentured into service in Pennsylvania for 13 years. He finally escaped, returned to England and instituted proceedings to regain the estate.

But James suffered another misfortune: he accidentally shot a man dead. Uncle Anglesea, seeing an opportunity to rid himself of the challenge to his title to the Altham estate, instructed a solicitor, Giffard, to prosecute James for murder. Anglesea's instructions to Giffard included the following: " ... it is not prudent for me to appear publicly in this prosecution, but I would give 10,000 to have him hanged. ... if I cannot hang James Annesley, it is better for me to quit this kingdom and go to France, and let Jemmy have his right" (1224) By the way this information came to light only because Giffard was obliged to sue Anglesea on his bill of costs !



Indeed Anglesea in fact spent only 800 on the prosecution. James was acquitted. James then instituted proceedings to eject Anglesea from the Altham estate. The question for the court was a simple issues of fact: Was James Annesley the legitimate son and heir of Lord Altham. Many years had passed and proof would be difficult. It was thought that Anglesea's comments to his lawyer, Gifford would assist in this proof and despite such comments ordinarily being confidential as between solicitor and client the court ruled that here, where the purpose was unlawful and/or fraudulent, the trust and confidence was lost and therefore that Gifford could testify. The subsequent cross examination included the following questions and answers [Hand-out and role play?]:

Q When Lord Anglesea said to you that he did not care if it cost him 10,000 to get the plaintiff hanged, did you understand that it was his resolution to destroy him if you could ?

A I did

Q Did you advise Lord Anglesea not to carry on that prosecution ?

A I did not

Q Did you approve or disapprove of his expressions and design

A I cannot say that I did either

Q Did you go on as effectively as you could with the prosecution ?

A I did, indeed I advised Lord Anglesea not to appear at the trial

Q When Lord Anglesea said that he would not care if it cost him 10,000 to get the plaintiff hanged did you understand that he would be willing to incur that expense in the prosecution ?

A I did

Q Did you suppose .. that he would dispose of that 10,000 in any shape to bring about the death of the plaintiff ?

A I did

Q Did you not apprehend that to be a most wicked crime ?

A I did

Q How could you engage in the project without making objection to it ?

A I might as well ask how you came to be engaged for the defendant in this suit ... [A HIT !]

Q Did you not apprehend it to be a bad purpose to lay out money to compass the death of another man ?

A I do not know but I did. But I was not to undertake that bad purpose. If there was any dirty work I was not concerned in it.

Q If you did believe this, I ask you how came you to engage in this prosecution without objection ?

A I make a distinction between carrying on a prosecution and compassing the death of a man.

Q How came you to make that distinction ?

A I may as well ask how the counsel came to plead this cause.

Q Did you ever mention to any of your counsel that Anglesea made that declaration ?

A I did not

Q If you had told them, would they have appeared for you ?

A I can't tell whether they would or not.

Q Do you believe any honest man would ?

A Yes, I believe they would, or else I would not have carried it on.

Well, is this good cross-examination ? Yes, I think it is and I will explore the reasons why in the following lecture [End of Lecture Three?]



[Lecture Four] 1. The cross-examination invokes a moral argument - the jury are to understand that Anglesea's purpose was immoral; that Giffard's stance was passive and neutral in that he made no moral judgment and raised no moral objections; and yet proceeded with the utmost vigour

2 It suggests that Anglesea's project was the equivalent to any use of 10,000 to bring about another's death as, say, putting out a contract on him.

3 It insinuates that somehow Gifford's contribution was not quite "legal business as usual".



Obviously the cross-examiner has more opportunity to structure presentation and argument in testimony than has a witness but in the event, Giffard's responses, too, indicate a moral position: First, Giffard's lack of self-consciousness or embarrassment suggests that he really sees nothing morally wrong in the situation: he has zealously pursued a client's ends without passing moral judgment upon them. What is wrong with that ? That is the plain duty of a lawyer, otherwise "If the saint sues the sinner, the sinner shall not be defended: if it should happen that a saint wrongs a sinner, the sinner cannot sue the saint". Again - "... shades of the great advocates who have passed away defend us ! Most of those who have been honoured in their societies have defended and prosecuted at divers times divers men accused of crime ... When they represented the prosecution and the accused was acquitted, did they share in the guilt of a wrongful prosecution ? In almost every case there are two lawyers and in almost every case there is a verdict one way or another, and every lawyer of any considerable practice loses and wins a number of cases every year, it follows that all lawyers must necessarily be wicked men ... Upon this monstrous doctrine a surgeon should refuse to set a broken limb till he got a certificate of the good moral character of his patient". For such reasons, the argument runs, the lawyer's morality must be distinct from the client's.



Hence the principle of non-accountability (per Prof Murray Schwartz) - "... when acting as an advocate for a client a lawyer is neither legally, professionally, nor morally accountable for the means used or the ends achieved" Add to this the priciple of partisanship - "...when acting as an advocate, a lawyer must, within the established constraints upon professional behaviour, maximise the likelihood that the client will prevail" and you have a justification for Giffard's conduct. And these two principles, taken together, represent "the standard conception of the lawyer's role" (Postema). Uncomfortable as we may feel about the means adopted by client and lawyer in this case, we cannot but acknowledge that the standard conception of a lawyer's role offers powerful justification.



Secondly, Giffard does try to distinguish "...compassing a man's death" and "...carrying on a prosecution". Spending 10,000 on a prosecution is very different from spending the same sum in hiring an assassin. The conduct is embedded in legal practice and legal institutions and that status alters the moral case so that the lawyer is simply not performing the same act as the non-lawyer who seeks the same or an analogous end. The whole legal enterprise is to be understood as a no-go area for conventional or personal morality. It is an arena of specialised role ethics.



Thirdly, there is nothing dishonourable in Giffard's conduct - Anglesea's counsel, arguing against the admission of Gifford's testimony (as confidential and privileged) had said that the earlier murder prosecution had involved "... nothing more than the regular and open course of the law ... not to be imputed to a man as a crime ..." But even more strongly, there is no obvious answer to Giffard's response to the questions about how he came to be engaged: he asks his cross-examiner how he came to be engaged for Anglesea in the present action. The point is that should Anglesea's lawyers now prevail, James Annesley would be deprived of the estate that is rightfully his.



It should be emphasised that not all lawyers or legal theorists endorse the "standard conception of the lawyer's role". [NB ***Appendix 1 in Luban, Lawyers and Justice, pp 393 - 403]. Many develop some notion of "moral activism", that is, a position that calls upon the lawyer to enter into moral dialogue with clients and prospective clients. It may also be emphasised, however, that the standard conception of the lawyer's role does catch something essential in the minds of some lawyers and much of the public. This is brought out by Luban's analysis of what he calls "the Fourfold Root of Sufficient Reasoning"

1. Lawyers' conduct involves role obligations which are different from individual, community or critical morality; morally worrisome conduct is justified by referring to the role-defined obligation.

2 The role-defined obligation (e.g. Confidentiality, Zealous Advocacy) is then justified by showing that it is essential to the role that is what a lawyer is for or does, given the institutional and social context.

3. One then justifies the role by reference to the institutional and social context - the adversary system

4. Finally, one justifies the institution directly on moral grounds, if one can.



It follows that much of our critical assessment of the lawyer's duty of confidentiality or zealous advocacy leads directly or indirectly to a review of the moral worth of the adversary system. So how worthy is the adversary system ? Well in the sphere of the criminal law, where it is the power of the state against the individual, the criminal defence paradigm offers powerful political and moral arguments. Since this is so the adversary system excuse can justify the criminal lawyer's morally extraordinary role-obligations. But there are real difficulties in transferring this over to the sphere of civil litigation. If the criminal defence paradigm is inappropriate as a basis for justifying the civil litigator's morally extraordinary obligations the question then remains what, if anything provides a moral justification ? So is the adversary system obviously necessary to the resolution of civil disputes ? Well, no; it emerged and it is not clear that if we started over, we would adopt the same dispute resolution procedures. Therefore any justification that it can offer is of a very weak pragmatic sort. That is, while it may be that the adversary system is as good as any alternative dispute resolution system, without some positive moral worth beyond that, it does not provide the basis to justify, as in Spaulding v Zimmerman the keeping of confidences, or as in Annesley v Anglesea zealous advocacy, that threaten or promise injury or death to another human. Can the following argument be pushed through against (or for !) Luban? If these odious role obligations are requirements of the civil adversary system and the civil adversary system cannot be positively justified then its adverse costs include these odious obligations and therefore we should of course be addressing alternative dispute resolution mechanism that do not require these or as many or as deeply troubling morally odious role obligations. [Essay topic] And can one dismantle even the criminal defence paradigm as Luban, himself, does for a certain type of rape case because of the effects of patriarchy . And if patriarchy, what of capitalism, and racism etc. So at this point, one line of argument is towards the restructuring of the civil and criminal justice systems simply because they require for their functioning morally indefensible roles. There are, of course, signs of such local developments, for example in family law, but the proposal here is global.



If the civil adversary system provides only weak pragmatic justification for the role-obligations of lawyers in civil litigation and counselling, then a different vision of lawyering may be worthy of some consideration. Suppose that we speculate about what lawyering would be like without the principle of non accountability ? Then a lawyer would be able morally only to use the means available to any ordinary moral agent and that would lead to a constrained, not a full-blooded partisanship that is to say to limited partisanship whereby lawyers can optimise client outcomes only within the limits of common moral obligations. Of course Luban concedes different standards of zeal are appropriate to crime and civil lawyering whereby criminal defence lawyers can fight dirtier??? And lawyers representing clients in confrontations with powerful opponents can also fight dirtier than their opponents' lawyers ??? So is this all just a liberal-leftist tilt against corporate America? Well, would we welcome the following constraints on lawyering?

1. On modes of conduct that inflict morally unjustified damage on other people, especially innocent people

2. On deceit, i.e actions that obscure truth or lure people into doing business under misapprehensions, even if legally permissible

3. On manipulations of morally defensible laws to achieve outcomes that negate its generality or violate its spirit; and

4. In general, on the pursuit of unjust results.

So limited zeal would operate within such limits



Moral activism: So what would it be like if lawyers did take some degree of moral responsibility for client's ends ? Would this be so different from the standard conception ?

The lawyer for a principle is accountable. I.E. when Clanton acted for the KKK he evinced his commitment to the First Amendment, even though that law allowed activities of which he personally (and many others) thoroughly disapproved. Such lawyers are saying that certain core values trump the evil outcome that their clients pursue. [Principle of double effect???]

Lawyer for the damned (e.g. Clarence Darrow) takes on cases that no one else will touch with the proverbial barge-pole; cases in which the client has for one reason or another rightly become odious or untouchable in the eyes of all right-thinking people. We are unwilling to let even lost souls slip away; we are horrified at the spectacle of even the most debased malefactor (For the Term of His Natural Life) stripped of all allies, support and hope and hounded down We are respectful of caritas, or Christian caring. That is an authentic strand of common morality and the lawyer for the damned is not necessarily an accomplice in nor responsible for the client's sins.



But the issue here is to engage the client in transformative moral dialogue. Not simply to save but to redeem. If we are unwilling to let even the most debased soul slip away it is because we believe that somewhere there is good to recover and the legal proceedings are the first step to saving a soul (Tom Shaffer and other commentators have put such arguments)

But the lawyer for the damned must try to redeem the client. That shows that the lawyer is taking a moral perspective. The client is indeed morally odious and the lawyer is very far from being morally neutral. This may be understood as another instance of a lawyer for a principle the principle of Christian charity and the practice of care - caritas. The lawyer for a principle and the lawyer for the damned are contrasted with the hired gun. The hired gun is vindicated only under the standard conception but nor on the model of moral activism. So what is wrong with the hired gun ?



We have considered what a life in the law might be like. One view, put by Kronman, and historically by others such as Brandeis, is that a lawyer's training, skills and mindset "... fit him especially to grapple with the questions that are presented in a democracy; logical thinking is conditioned by regularly encountering recalcitrant facts, and all must be accomplished under pressure of time". With experience, judgment, including moral judgment and sensitivity, ripens and an experienced lawyer emerges as an individual of practised practical wisdom. So lawyers should and could aim at more than the moral minimum, and should be able and ready to enter into moral dialogue with clients.



On that basis the legal training of lawyers cultivates practical reasoning and judgment and that should enable lawyers to form a better than average appreciation of the human consequences of institutional arrangements and a developed ability to optimise the objectives of others in morally acceptable ways. Lawyers have the opportunity to influence the conduct of clients and the development of the law. Is that the moral mission of lawyering ? Clients can be awakened to the moral dimensions of their choices and steered in the direction of the public good [utilitarian?]. The law can be reviewed and reinterpreted by the practitioner from such a moral perspective. We should therefore be as interested in "people's lawyers" as in corporate lawyers, not least because the power of private institutions in capitalist societies to do morally reprehensible harm is very significant (Dalkon Shield, Ford Pinto)



So a morally activist lawyer would put his or her skill or savvy and nous to work for the common weal and in client counselling. The latter is arguably more important in that all lawyers, however humble their practice, have clients. Client counselling means, among other things, reviewing with clients the morality of their ends and the means proposed to achieve them and the possible impact on others, or say on the environment, in the same emotionally uncharged voice as more obviously legal advice may be given. There may be considerable moral negotiation discussion and adjustment. Crucially, moral activism envisions the possibility that also the lawyer and not only the client will adjust his or her moral position. It is a mistake to take either client ends and means or lawyer's moral principles as fixed, set in stone, and inflexible. Lawyers are capable of learning from clients what justice and morality requires. It is one of the many moral opportunities that legal practice provides that one encounters morally challenging and reformative circumstances, situations and cases. On this moral activist approach, nothing permits a lawyer to discard moral discretion or relieves the lawyer of the necessity of asking whether a client's project is worthy of a decent person's services. This is "the ethical opportunity in the practice of law"[e.g. Hazard]



We began with Giffard who as prisoner of his lawyer's role attempted to hang the runaway slave, James Annesley. We finish with the words of Abraham Lincoln addressed to a client of his Springfield law practice: "Yes we can doubtless gain your case for you; we can set a whole neighborhood at loggerheads; we can distress a widowed mother and her six fatherless children and thereby get you six hundred dollars to which you seem to have a legal claim, but which rightfully belongs, it appears to me, as much to the woman and her children as it does to you. You must remember that some things legally right are not morally right. We shall not take your case, but will give you a little advice for which we will charge you nothing. You seem to be a sprightly, energetic man; we would advise you to try your hand at making six hundred dollars in some other way" [Herdon's Lincoln (1889) vol 2 p 345 note]. In any event, both the standard conception and the moral activist model are extremes. In the real world of law practice one encounters every kind of people; hired guns and Christian crusaders, and many in between among the lawyers and both the saint and the sinner, and many in between, among clients.



The client and the state: Writing almost thirty years ago, commentators on the Soviet Legal Profession observed that "...the lawyer ... is assumed to serve two masters, his client on the one hand, and society on the other... Since the state's control [over the lawyer in the United States] is so weak, one danger is that the lawyer will tend to neglect the interests of society in favour of the exclusive interests of his client - he may be tempted to pervert the course of justice because his economic advantage depends exclusively, if he is a private practitioner, on his ability to satisfy his clients ... Thus in the United States the urge to professionalise, to increase standards, to inculcate morality on the part of the lawyer, is necessary precisely because state control is so weak that internal (psychological, social, and professional) controls are of grave importance. In a totalitarian society, the need for professionalism arises out of precisely the opposite phenomenon. Here state control is so unlimited and (at least potentially) so unrestrained that the lawyer is gravely tempted to neglect the interests of his clients in order to advance the interests of society (that is, of the state, since totalitarian states define the social interest as identical with state interests) particularly since lawyers are not directly compensated by their clients, since they are in some sense employees of the state, since advancement and success depend on satisfying the state rather then particular clients - during the darkest days, even personal freedom or life itself depended upon satisfying the state - the lawyer needs professionalisation as a bulwark against interference with what he considers proper application of his skills in a professional manner. Freedom to act as a lawyer means, in such a society, freedom from excessive dependence on the state: in a democratic society, freedom to act as a lawyers means freedom from excessive dependence on the client" [Frideman & Zile, "Soviet Legal Profession: Recent Developments in Law and Practice" 1964 Wis L Rev 32].



I think this is an important passage. It shows that whatever the structure of the state - advanced democracy or established totalitarianism, or anything in between, there will always be a need for the lawyer to seek to balance duties to the individual client and duties to the community. That seems to me to be an inescapable feature of legal practice. It goes with the turf. And it is that feature of legal practice that generate the astonishing ethical opportunity in legal practice. Freedom from excessive dependence either on the state or on the client constitutes the relative independence of lawyers. I take such relative independence to define the lawyer's role. It constitutes a sphere of freedom which requires the lawyer to act conscientiously in the best interests of the client and faithful to the interest of the state as embodied in law. The traditional view is that the lawyer is free to pursue the client's lawful ends by all lawful means. This presupposes that the relevant law is accessible and sufficiently clear to the lawyer in reaching decisions about how to act in particular cases. However, most recent and current legal theories, though they differ on many points, agree that law is relatively indeterminate and calls for judgment in its concrete application to particular facts [this invokes "marginal ethical discretion", Simon, Hazard, Tur] Accordingly, legal restraints on the conduct of lawyers will be no more determinate than the law itself and the lawyer's interpretation of that law. Lawyering sometimes, perhaps frequently, involves sophisticated reconciliation of apparent conflicts between the interests of the state and the interests of the client. As already noted, Probert & Brown saw that lawyers "stand as communicants between officials and individuals. One way go the values of individuals and individual groups, the other way go collective community values and norms. The lawyer acts as a mediator in a way unknown to a court of equity or even a sympathetic jury" [472-73] This "legal realist" approach to lawyering raises a series of pressing ethical questions. A lawyer is free to aid a murderer, rapist or drug-trafficker to avoid the sanction of the criminal law provided the lawyer acts within the procedures of law. Indeed, lawyers are not merely free but "expected" to defend even the guilty. But the lawyer as champion may face further pressures. How far should the role of the lawyer go to aid a client doing battle with the law itself ? What of corporate strategies that may or may not involve crimes, environmental damage, tax evasion, etc. How far can the lawyer go in the pursuit of the interests of the client to the detriment of the interests of the state ? Once legal realism and its progeny (or any non-normative positivist theory) are applied to lawyering, there appears to be no limit on how far the lawyer can oppose the law in the interests of the client. At this point one turns to normative positivist theories which seek to emphasise the social values immanent in the law which may provide some legitimate limit on what lawyers may properly do on behalf of clients and one might draw an analogy between the legitimate law-making role of the judiciary and creative lawyering. Some commentators (such as Luban) suggest that (other than when acting for a client charged with crime) lawyers should adopt a form of "moral activism" that is, take some moral responsibility for the client's objectives and, where morally appropriate, refuse to act. This may well involve the lawyer acting contrary to the (implied) terms of the contract of agency and, in any event, the analogy with "judicial activism" is far from convincing. Far from imposing their own personal morality or any universalistic ethic upon their clients, lawyers acting like activist judges would be required to interpret and develop law according to current community values and then test the client's project against the law so understood.



I submit that what I shall call "legal activism" is already part and parcel of good lawyering and that it is preferable to Luban's highly idealised "moral activism". Where no community values can be gleaned, perhaps the lawyer, like the judge, should not actively make law "beyond the consensus" but should adopt "a strict and complete legalism". Lawyering involves the power to interpret law in accordance with the client's interest where that is consistent with general community values but, perhaps, it should not include the power to subvert existing law in order to achieve purposes clearly contrary to these general community values. A difficulty with this is that community values change, and that what has come to be called "cause lawyering" may be instrumental in such change. And furthermore, a certain degree of resistance to social values may be recognised even within the consensus as having value. In other words, we all have some degree of respect for the "moral pioneer", even where that may, indeed must, challenge the moral legitimacy of some laws.



Cause lawyering : Sarat and Scheingold's "Introduction" in the work of that title edited by them both is, perhaps, the best place to start especially pp 3 -12. These authors touch on a number of themes which recur in any discussions of lawyers' ethics, most noticeably the subsumption of a range of specific versions of cause lawyering such as human rights, critical, feminist, radical, civil rights, civi liberties, environment, poverty, etc as loci of the tension between Political Commitment and Professional Responsibility. A new postmodern slogan might be not that the personal is the political but that the professional is the political and on of the function of professional regulation and codes is to police the boundary between the political and the professional and that may explain why such regulation sometimes fudges important issues.



Often, serving a client is serving a cause, and one recurring them is the empowerment of clients, especially in micro-sites of power (such as the family, the workplace, schools, social service agencies, local authorities, etc). This usually involves the lawyer "swimming against the prevailing political [RHST or professional] tide" (8). Cause lawyers may seek to "fashion litigation into an assertive political weapon" (6) but NB the different constitutional implications of test-case strategies in say USA and UK. Cause lawyers are thought to have " a vision of the good society" (7) and a "critical conception of cause lawyering" (9) is and intends to be "transformative" (9). One example is the remarkable legal career of Clive Stafford Smith "A lawyer who works in the shadow of death" NLJ September 25, 1998 pp 1405-6. This cause lawyer is so opposed on moral grounds to the death penalty that, notwithstanding that it is legally permissible or required, there can never be a morally legitimate instance of the death penalty. This seems to me to be a clear case, and admirable, of a lawyer "against the law" (Luban). Conservative, status quo lawyers are also lawyers for a cause, though somehow the cause is not perceived as being anything like as glamourous. The tension between the conservative and the progressive images of lawyering is clear. What, perhaps, Sarat and Scheingold and their contributors do not adequately bring out is, in the language of the struggle against slavery, the intriguing point is to "destroy her master's house with her master's tools". Cause lawyering then is not merely political posturing. It involves deviationist doctrine. That is achieving unorthodox results by orthodox means: impeccable legal argumentation and method, and undoubtedly valid legal sources and materials. The cause lawyer simply has to be a supremely skilful practitioner. To achieve a result (as in Kleinwort Benson House of Lords October 29, 1998) against the law requires dedication, skill and commitment akin to that of the "seasoned warriors of the interest swaps litigation". [End of Lecture Four?]

====================