Introduction
Holding forth at table in 1831, Samuel Taylor Coleridge turned to the behavior of lawyers. “There is undoubtedly a limit to the exertions of an advocate for his client,” he said, for “the advocate has no right, nor is it his duty, to do that for his client which his client inforo conscientiae has no right to do for himself.”[20] Thirteen years later, William Whewell elaborated the same point:
Every man is, in an unofficial sense, by being a moral agent, a Judge of right and wrong, and an Advocate of what is right...
This general character of a moral agent, he cannot put off, by putting on any professional character... If he mixes up his character as an Advocate, with his character as a Moral Agent... he acts immorally. He makes the Moral Rule subordinate to the Professional Rule. He sells to his Client, not only his skill and learning, but himself. He makes it the Supreme Object of his life to be, not a good man, but a successful Lawyer.[21]Whewell’s position is not commonly acknowledged to be valid. George Sharswood, whose 1854 Legal Ethics is the ancestor of the current ABA Model Rules of Professional Conduct, wrote: “The lawyer, who refuses his professional assistance because in his judgment the case is unjust and indefensible, usurps the functions of both judge and jury.”[22] A lawyer is not to judge the morality of the client’s cause; it is irrelevant to the morality of the representation. That, I think, is the official view of most lawyers: the lawyer’s morality is distinct from, and not implicated in, the client’s. Murray Schwartz labels this the “Principle of Nonaccountability”:
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 “Principle of Professionalism”:
When acting as an advocate, a lawyer must, within the established constraints upon professional behavior, maximize the likelihood that the client will prevail[23]
and you get what is usually taken to be the professional morality of lawyers.
Gerald Postema calls it the “standard conception of the lawyer’s role”; William Simon says that these principles (which he titles the “Principle of Neutrality” and the “Principle of Partisanship”) define partisan advocacy.[24] Borrowing Simon’s terminology, we may call the view of legal ethics captured by them Neutral Partisanship. Shortly after introducing these principles, Schwartz raises two points about them:It might be argued, that the law cannot convert an immoral act into a moral one, nor a moral act into an immoral one, by simple fiat. Or, more fundamentally, the lawyer’s nonaccountability might be illusory if it depends upon the morality of the adversary system and if that system is immoral... If either [of these challenges] were to prove persuasive, the justification for the application of the Principle of Nonaccountability to moral accountability would disappear.[25]
Schwartz raises these issues but does not address them. My aim in this chapter is to meet them head-on. I shall argue (1) that a lawyer’s nonaccountability does depend on the adversary system; (2) that the adversary system is not a sufficient basis for it; and (3) thus, that while the Principle of Professionalism may be true, the Principle of Nonaccountability is not.
This, I believe, will defend the morality of conscience - the position of Coleridge and Whewell - against the claim that professional obligation can override it.