Shaffer’s legal ethics: the advocate on the cross

So far, I have largely followed Shaffer’s reading of Orley Farm, in particular his keen understanding of Furnival’s dilemma and his penetrating insight that Furnival’s dilemma arises out of the ethics of the gentleman-lawyer.

For Shaffer, the Christian answer to the commonly asked question of how a lawyer can serve the guilty is that Jesus served the guilty.¹⁶ Christ’s min­istry brought him into the company of disreputable people and despised people - into the company of sinners, prostitutes, tax-collectors, publicans, and thieves. It had to: a physician practices among the sick, not among the healthy.

But it must not be supposed that Shaffer is offering an easy excuse to the criminal lawyer, the facile reply that if representing the guilty is good enough for Jesus, it is good enough for me. That would be a short and sweet way out of moral accountability for lawyers’ decisions about whom to represent. Nothing could be further from Shaffer’s intentions, because what Shaffer is talking about is not legal representation but ministry, and ministry is a perilous profession that offers no shield against moral accountability. Quite the contrary. “When Jesus touched the leper, Jesus became a leper.”^[575] Ministry requires a kind of faithfulness to the other person that knows no circumscription, no limit-point.

The scene to superimpose on the jail cells where we talk to the guilty is Jesus and the tax-gatherers. The scene to superimpose on the frightful image of my client receiving his punishment is Dismas on the cross, Dismas with an advocate and a companion hanging by his side.^[576]

The advocate hanging on the cross beside the thief is, to say the least, a far cry from the old trial lawyer’s cynical advice to make sure you are on the outside when the jail door closes on your client.

Shaffer raises the stakes in legal ethics to an almost unimaginable degree. In his hands, it becomes a different subject, “a turn away from analysis of duty and consequence, of critical moments and ‘ethical dilemmas’ and statements and dry rationality.”^[577] The moral requirements of faithful ministry replace the entire dispiriting casuistry of the Model Rules of Professional Conduct and “public policy” that make up so much of our legal ethics dis­course. Gone, too, is the liberal-secular discourse about the public interest and justified rule-breaking. For Shaffer, rules and policy have nothing to do with what matters, the I-Thou relationship between lawyer and client.^[578] I read Shaffer’s language about the thief on the cross with his advocate hanging by his side quite seriously and literally. It means, I think, that if ministering to the client requires a lawyer to break a Model Rule, or a law, and undergo punishment for it, then the Christian who is a lawyer will break the Model Rule and the law - not because doing so is in the larger public interest, but because doing so is what faithful ministry demands. Rejecting arguments based on “the Constitution or the adversary function” about how a lawyer should treat client perjury, Shaffer comments, “A moral person cannot allow either the government or the profession to decide what is truth and what is not.”^[579] Sometimes, good people and good lawyers tell lies.²²

Of course, Shaffer is not presenting a “win at all costs” ethic - far from it. In the authentic I-Thou relationship, the lawyer “may have to refuse to go further with the client,”²³ and refusing to go further might itself violate rules and laws under some circumstances - for example, if the lawyer finds himself

morally compelled to reveal privileged information. Shaffer distinguishes between loyalty to the client, which is what the win-at-all-costs ethic demands, and fidelity, which is deeper and riskier, and which may take both the lawyer and the client to places where they would prefer not to go.²⁴