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Monday, March 30, 2009

On Legal Representation I

Last week, Richard Painter offered a series of excellent posts on the Volokh Conspiracy about government ethics reform and other related matters, based in part on a new book by him and in part on his experience as an ethics officer in the Bush White House.  They're all very worth reading -- very thoughtful contributions to the public dialogue.  One of his most interesting posts, to my mind, is this one, in which Painter discusses the legal arguments concerning torture.  Among other things, Painter writes:

This is not an argument which a person wins by citing cases or finding ways in which the Constitution might conflict with treaty obligations the United States voluntarily entered into. This is a question of right and wrong, and there are certain things a civilized society does not do. Much of the work of an ethics lawyer, or any lawyer for that matter, is giving a client advice that amounts to common sense. The advice required on this question is that torturing prisoners is morally and legally wrong and that legal opinions seeking to justify torture will expose the United States to widespread international criticism and other adverse consequences. They did.

Of course I bring my own moral views to this question. It would be difficult not to. There is admittedly a gray area when a lawyer believes something is clearly legal but also morally wrong. Advice given to a client may vary depending on the circumstances and the lawyer. When something is widely viewed as being both illegal and morally wrong, however, constructing an argument to the contrary is a disservice to the client, even if the client appears ready to entertain such an argument. The lawyer’s job is to say no.

Painter's statements provoked quite a heated discussion in the comments (with, among other things, many commenters apologizing for the more red-blooded views of some commenters).  A number of commenters responded along the lines of: "Your job as a lawyer is to tell me what the law is.  I'm not interested in hearing your views on the moral or (broadly speaking) ethical implications of my proposed actions.  Would you tell a corporation not to do something because it's morally wrong?  Stick to your knitting."
I'm not a legal ethics scholar, but I do teach and think about it.  More generally, I think such views are in line with views that I have seen expressed by commenters in the blogosphere before, to the effect that lawyers are there to offer technical advice and have no business offering moral views.  The fairly conventional legal professional rule is that this view is simply wrong.  Thus, ABA Model Rule of Professional Conduct 2.1 states that a lawyer's advice "may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation."

This strikes me as entirely appropriate.  That's true not because lawyers have any special moral authority, or any great epistemic expertise on matters of morality.  But these considerations are, at the crudest level, practically relevant: any lawyer trying to give worthwhile advice should include all the factors that might affect a client's decision, and those certainly include both the external effects, such as public criticism, that might meet a possibly "immoral" action, but also the internal effects on the client or entity of doing so.  Moreover, clients may propose immoral actions in the heat of the moment and without reflection; lawyers who serve as reasonably disinterested in dispassionate advisors can serve as a check on these impulses, and smart clients should welcome this.  Finally, the commenters seem to me to lack a sense of the give-and-take involved on these issues.  To tell a client you think some line of action is not to prevent that client from disagreeing with you; it also does not prevent a client from honestly reconsidering his or her actions and changing his or her mind about a course of conduct based on the lawyer's morally inflected advice.  

Finally, although I don't hold an especially exalted view of lawyers. I think it is possible to be too narrow in viewing legal advice as purely technical in nature.  Per Kronman and many others, and even if we strip such arguments of their tendency toward self-regard and Law Day rhetoric, there is still room for a "wise counselor" model of lawyering, even in dealings with sophisticated corporate clients (which, after all, are entities represented as a whole by the lawyer; even if the entity as a whole is sophisticated, its constituent actors may not always be).  Lawyers at their best can serve as a check on impulsiveness, group polarization and groupthink, and so on, and offer sober second thoughts on various issues.  They may have no great epistemic authority on moral matters, but they do, if they are experienced, have a decent situation-sense about such things derived from working on many such cases.  And some lawyers actually have good judgment on these and other matters.  Leaving aside the special duty that government lawyers may have to do so, by law and custom, I think Painter is right that sometimes a lawyer's proper role is not just to say "how," but also "no."  The trickier question is what that lawyer should do when the client listens to moral advice and says "yes" anyways. 

Posted by Paul Horwitz on March 30, 2009 at 10:45 AM in Paul Horwitz | Permalink


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I would tell a corporation not to do something because it is morally wrong. See The Moral Interdependence of Corporate Lawyers and Their Clients, 67 SOUTHERN CALIFORNIA LAW REVIEW 507 (1994).

Where does anybody get the idea that because a lawyer works for the government and the topic is torture instead of securities fraud the answer should be any different?


Posted by: Richard W. Painter | Mar 31, 2009 12:36:31 PM

I think your comments are spot on, Paul. I encountered this issue personally in practice, usually with respect to data privacy and computer security issues. There wasn't much law out there, so just stating what the law was in a technical way didn't take very long. But if that's all you did for a client, you were underperforming. Advice in those areas also involved taking even a small amount of time to imagine how the public, and regulators and lawmakers, would react to a potential problem down the road, and what steps could be taken now to mitigate that -- none of which were (usually) legally required.

Posted by: Bruce Boyden | Mar 30, 2009 12:34:49 PM

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