The Counsel of Rogues?

A Defence of the Standard Conception of the Lawyer's Role

Tim Dare

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781317037149
• Subtopic: Law Theory & Practice
• Index: Law

There is a widespread perception that even when lawyers are acting squarely within their roles, being good lawyers, they display the vices of dishonesty and deviousness. At the heart of the perception is the so called standard conception of the lawyer's role according to which lawyers owe special duties to their clients which render permissible, or even mandatory, acts that would otherwise count as morally impermissible. Many have concluded that the standard conception should be set aside. This book suggests that the moral implications of the standard conception are often mischaracterised. Critics suggest that the conception requires lawyers to secure any advantage the law can be made to give. But Dare offers a moral argument for the conception, according to which it justifies a more limited and moderate sphere of professional conduct than is normally supposed, allowing lawyers to preserve their integrity while giving proper weight to the role-differentiated permissions and obligations of their roles.

Chapter 1
The Standard Conception of the Lawyer’s Role

What is it about lawyers?

There is a widespread and ancient perception that lawyers are grasping, callous, self-serving, devious and indifferent to justice, truth and the public good. Ironically, the profession most obviously charged with the protection and defence of ‘justice’ is commonly regarded as being inimical to that very virtue. The perception is recorded in literature, in philosophy and in popular culture. One cannot pursue an inquiry into legal ethics far before being directed to the suggestion by Shakespeare’s revolutionary that ‘killing all the lawyers’ would be an appropriate starting point for social reform. Even the philosopher Immanuel Kant, famed for his lugubriousness, was moved to quip that lawyers were apt to use the sword of justice not merely to protect the scales of right, but also to promote their client’s interests more directly: ‘Since if the scale does not sink the way he wishes, he … throws his sword in it …’¹ As for popular culture, the apparently universal genre of ‘lawyer jokes’ relies upon an equally universal association of lawyers with the vices listed above, coupled with an ironic appreciation of the tension between this association and the ‘official’ portrayal of law as an especially honourable and noble calling:

Standing before a headstone inscribed ‘Here lies a Lawyer and an Honest Man’, a man turns to his companion and says, ‘Look, they’ve buried them two to a plot.’

The graveside story works as a joke only because there is an almost universally accepted bit of folklore that one cannot be both a lawyer and an honest person.²

The common perception that ‘legal ethics’ is an oxymoron is no doubt attributable in part to straightforward instances of misappropriation and dishonesty. Many people associate lawyers with the vices of dishonesty and deviousness because of well-publicised cases in which lawyers have made off with the contents of their trust accounts. But such cases do not really seem to explain, let alone justify, the particular content of the common feeling about lawyers. Accountants are not immune from the temptation of a well-stocked trust account. Jokes about them focus not upon their profession’s intimate association with dishonesty, however, but upon the alleged dullness of the calling and its practitioners. This is the shared assumption which allows us to recognise the punchlines to ‘accountant jokes’ as surprising but plausible conclusions.³ The difference between the lawyer jokes and accountant jokes is informative. Jokes about accountants do not trade upon dishonesty, even though there are plenty of spectacular cases of misappropriation by accountants, because there is no perception that the accountant’s role is ‘of its very nature’ dishonest. The ‘dishonest’ punchline is not a sufficiently plausible conclusion to the narrative of the joke, because dishonest accountants are taken to act outside their professional roles. The difficulty for lawyers is that there is a widespread perception that even when lawyers are acting squarely within their roles – even when they act as good lawyers – they display the vices of dishonesty and deviousness. The widespread suspicion of lawyers’ ethics – and hence the punchlines to lawyer-jokes – flows less from rare cases of misappropriation than from common perceptions of the day-to-day business of law.

At the heart of the difficulty is a conception of the lawyer’s role – often called the standard conception – according to which lawyers owe special duties to their clients which render permissible, or even mandatory, acts that would otherwise count as morally impermissible. Zabella v Pakel⁴ has become a classic illustration. The case raises the issue of a lawyer’s use of legally available defences to allow a client to avoid a moral obligation. Joseph Zabella worked for John Pakel. Zabella was better off than his employer and from time to time loaned him money. Eventually Pakel owed Zabella $5,000. The two drafted and signed a simple contract, but Pakel declared bankruptcy before the debt was repaid. Some time later Zabella sued, claiming that, subsequent to the bankruptcy, Pakel had made a new promise to repay the debt. The new promise would have blocked the bankruptcy defence, but because it was not in writing Pakel was able to plead a statute of limitations to prevent legal enforcement. The defence was successful, though the court was quite explicit that the statute did not extinguish Pakel’s moral obligation to repay Zabella. The immorality of Pakel’s reliance upon the statute was made all the more striking since by the time of the suit Pakel had become the well-paid Chief Executive Officer of the Chicago Savings and Loan Association, and could have repaid the money without hardship. Though they felt obliged to allow the defence, the court made clear they thought Pakel was a scoundrel, who, being ‘in a position of some affluence … should feel obliged to pay an honest debt to his old friend, employee and countryman’.⁵

Surely the court is right about Pakel. Somebody who relies upon a technical rule of law to avoid paying an honest debt to an old friend who helped the debtor when the debtor was in need, when the old friend is now in need, and when payment would not significantly reduce the debtor’s own welfare, acts immorally. What, though, of Pakel’s lawyer? Normally one who knowingly helps another obtain an immoral end acts immorally. But the standard conception gives lawyers a different and straightforward answer. According to the standard conception, not only did Pakel’s lawyer do no wrong in helping Pakel secure his rights under the statute of limitations, he had a positive professional duty to do so. Being a good lawyer required conduct which would have been condemned as morally improper had it been performed by a layperson. It is the conception of the lawyer’s role which has this result that prompted Macaulay to ask how ‘it be right that a man should, with a wig on his head and a band around his neck, do for a guinea what, without these appendages, he would think it wicked and infamous to do for an empire?’⁶ and it is this conception that creates in the minds of many an enduring and intimate connection between the practice of law and the vices of deviousness and dishonesty.

This analysis may seem to have an obvious implication. If it is this conception of the lawyer’s role that explains the common association of lawyers with the vices of dishonesty and deviousness shouldn’t we abandon the conception? Indeed we will see that the difficulty may be rather more onerous than has so far been suggested. The standard conception has been subject to a diverse and sustained critique. According to this critique, set out in more detail in Chapter 2, lawyers acting under the standard conception are alienated from ordinary morality; are invited to deny responsibility for the things they do (and thus to deny their status as moral agents, capable of choosing to do otherwise); are rendered morally insensitive in ways which impair their ability both to live a satisfactory life outside of their professional roles and to perform their professional roles adequately; and are likely to find their work deeply unsatisfying because of the striking discord between the apparently obvious and public concern of law and lawyers with justice and morality, and the reality of practice under a conception which separates the moral obligations of the lawyer from those of the rest.

Again then, isn’t the implication of all of this that we should abandon the standard conception? Certainly this is an implication drawn often enough to make the ‘standard conception’ an ironic epithet. If numbers count, the standard view is now that the conception cannot be right. It has passed from orthodoxy to fair game, replaced by a new orthodoxy that it ‘must be abandoned, to be replaced by a conception that better allows the lawyer to bring his full moral sensibilities to play in his professional role’.⁷ But I do not believe that the standard conception should be abandoned. I shall argue that a slightly modified version of it is essentially the right way of conceiving of the ethical obligations of lawyers. Those concerned with the ethics of the profession – whether these assessors are themselves lawyers or not – should regard lawyers as subject to distinct obligations and permissions when acting in their professional capacities. And yet the long line of criticisms of the conception cannot be ignored. I hope to show why we should hold onto the standard conception, and how we can do so while acknowledging the most significant aspects of the critique.

The overall strategy is straightforward. I argue that lawyers have moral grounds for regarding themselves as having duties to their clients which may allow or require them to act in ways which would be immoral were they acting outside of their professional roles. The fact that lawyers act within professional roles, I claim, makes a moral difference. If the moral justifications of the lawyer’s role can be defended and are sufficiently weighty many of the criticisms of the standard conception fall away. Most generally, if there are moral reasons for taking the standard conception seriously then we should not too readily accept the claim that the conception alienates lawyers from morality. This is to say that we should not overdraw the conception’s break between ‘personal’ or ‘ordinary’ morality on the one hand and professional morality on the other. If the moral defence of the standard conception is successful an adequate personal or ordinary morality will entail a proper respect for the moral demands and permissions of professional roles. The moral argument also suggests a solution to the crisis of morale. It suggests that contemporary liberal communities rely to a considerable extent upon the practice of law as conceived by the standard conception. Law so practised allows people who are committed to a range of diverse but reasonable views about how we should live, to form stable and just communities. The lawyer’s role so conceived is one in which lawyers should take a good deal of satisfaction. The crisis of morale that troubles so many commentators is attributable, I will suggest, to a failure to appreciate the moral justification for the role rather than to any general licensing of immoral professional conduct.

Indeed, once the moral arguments for the standard conception are made explicit, those arguments themselves suggest limits to the things lawyers may justifiably do within their professional roles. The moral implications of the standard conception are often mischaracterised. Commentators suggest that the conception requires lawyers to secure any advantage the law can be made to give. But I shall argue that the standard conception, understood in light of its proper moral justification, requires no such thing. It justifies a more limited and moderate sphere of professional conduct. Clearly more needs to be said on all of these issues and aspects of the critique remain unaddressed. This will do, however, to indicate the direction of the argument advanced in this book.

The standard conception of the lawyer’s role

I begin by setting out the principles that comprise the standard conception of the lawyer’s role. According to that conception, the relationship between the lawyer and the client is mediated by three principles.

The principle of partisanship

First, the principle of partisanship specifies that the lawyer’s sole allegiance is to the client. Within, but all the way up to, the limits of the law, the lawyer is committed to the aggressive and single-minded pursuit of the client’s objectives. Lord Brougham’s defence of Queen Caroline is often regarded as the classic statement of the principle. Caroline and the Prince of Wales entered into an arranged marriage in 1795. The Prince’s main motivation was not romance, but a pressing need for financial support from a parliament insisting he abandon a spendthrift bachelorhood. The couple met only shortly before the wedding, and seem to have instantly fallen into a deep, mutual and enduring loathing.⁸ They separated almost immediately. Caroline did not retire into a demure solitude. Rather, she led a merry life in London⁹ before returning to Europe in 1814, where she toured and eventually settled with an Italian cavalry officer who was plainly more than a mere travelling companion. When George came to the throne in 1820 Caroline was offered a gratuity to renounce the title of Queen. She refused. At George’s insistence, a reluctant government introduced what was in effect a ‘divorce bill’ to the House of Lords. Lord Brougham defended Caroline against what were essentially charges of adultery. He had an ace up his sleeve. He knew that in 1785 George had secretly married Maria Fitzherbert, a Catholic widow. The marriage was almost certainly invalid – the Act of Succession prohibited heirs to the throne marrying Catholics – but Brougham believed that he could bring down the unpopular King by publicising George’s marriage to Mrs Fitzherbert, and insisted that he was duty bound to use that power if he could advance his client’s cause by doing so. An advocate, in the discharge of his duty, he said,

knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.¹⁰

In the face of Brougham’s defence the Bill sneaked through the House by a mere nine votes. Given the level of public and political opposition, the Government quietly dropped the Bill.¹¹

The principle of partisanship, often referred to simply as the ‘duty of zeal’, appears in one form or another in the professional codes of the lawyers of many jurisdictions. The American Bar Association states that a ‘lawyer should represent a client zealously within the bounds of the law’.¹² An earlier version, from a less succinct age, proclaimed that the ‘lawyer owes entire devotion to the interests of the client, warm zeal in the maintenance and defence of his rights and the exertion of his utmost learning and ability…’.¹³ The International Code of Ethics specifies that a ‘lawyer shall without fear defend the interests of his client and without regard to any unpleasant consequences to himself or to any other person’.¹⁴ The New Zealand Rules provide that lawyers shall, subject again to a duty to the court, ‘fearlessly uphold the client’s interests, without regard for personal interests or concerns’.¹⁵

The principle is standardly portrayed as flowing directly from the adversarial system, which is said to structure legal proceeding...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• Preface
• 1 The Standard Conception of the Lawyer’s Role
• 2 The Critique of the Standard Conception
• 3 The Idea of Role-Obligation
• 4 The Standard Conception and the Role of Law
• 5 The Standard Conception and the Client-Professional Relationship
• 6 Virtue Ethics, Legal Ethics and Harper Lee’s To Kill a Mockingbird
• 7 Detachment, Distance and Integrity
• 8 Conclusion: A Response to the Critique
• Bibliography
• Index