Transcript The dominant conception of a lawyer

Ch. 8: What is the Proper Role of a Lawyer?
I.
The dominant conception of a lawyer
• The meaning of the term “role morality”
• The dominant conception: Ls as neutral partisans & hired guns
• Changes over time regarding the role of the lawyer
• What is the position of the ABA Model Rules regarding lawyers’
morality?
• Should morality (beyond role morality) be part of a lawyer’s law
practice?
II. (Competing?) Visions of Professional Morality
 Please explain to your classmates your assigned theory about
the proper role of the lawyer
 Is there a consensus about what each theory means?
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Moral Responsibility
Feminist Lawyering
Religious Lawyering
Racial Justice
Civics Teacher
 Do you think it would help you in your practice to adopt 1
one of these approaches?
Some Preliminary Questions
Did you read the
assignment?
o YES
o No
Did you find the Chapter
interesting/useful?
o Yes
o No
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Why I Think its Worth Thinking about Ch. 8
& the Role You Want to Assume
http://www.thefacultylounge.org/2014/03/law-professors-law-students-and-depression-astory-of-coming-out-part-1.html
http://www.thefacultylounge.org/2014/04/in-part-i-of-this-little-series-i-laid-out-some-of-thestatistics-regarding-the-scope-of-the-problem-of-depression-and-anxie.html#comments
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According to your Casebook…
Today, the “Dominant Conception” of the
lawyer sees the lawyer as a hired gun
oTrue
oFalse
True – see Casebook p. 796
This is also referred to as the “neutral
partisan” role
Historically this has not always been true
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What Does the Term “Role Morality” Mean?
Role morality requires lawyers to take actions
that are immoral under ordinary morality.
o True
o False
David Luban has described this as involving:
1) The principle of partisanship; AND
2) The principle of nonaccountability
You should be familiar with Lord Brougham &
the quote on p. 798 – it’s cited often
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Which of the following is correct?
• The ABA Model Rules:
o require lawyers to be amoral partisans.
o prohibit lawyers from being amoral
partisans.
o permit lawyers discretion to choose
whether to be morally responsible or an
amoral partisan.
• This is Question 8-6 (p. 799)
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Relevant ABA Model Rules
2.1 Advisor. In representing a
client, a lawyer shall exercise
independent professional
judgment and render candid
advice. In rendering advice, a
lawyer 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.
Rule 1.2(b)
(b) A lawyer's representation
of a client, including
representation by
appointment, does not
constitute an
endorsement of the
client's political,
economic, social or moral
views or activities.
See also Rule 1.16(b)(4):
A lawyer MAY withdraw if “the client  Do these Rules point in different
directions?
insists upon taking action that the
lawyer considers repugnant or with  Note how one might criticize
which the lawyer has a fundamental
the TN Ethics Opinion on p. 803
disagreement”
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Do any of the ABA Model Rules use the
term “zealous representation”?
o Yes
o No
This is perhaps a trick question. The Preamble
refers to zealous representation, but none of the
Rules use this term. The Rules’ counterpart to the
Model Code’s “zealous representation” requirement
is Rule 1.1 – Competence.
Does this change represent a change from the
“neutral partisan/hired gun model?
If so, do most lawyers realize this change has
happened?
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Is There Any Way One Could Argue that
Choice #3 is NOT Accurate?
• Q 8-6 says that the ABA Model Rules “permit
lawyers discretion to choose whether to be
morally responsible or an amoral partisan.”
Could one argue that the ABA Model Rules do not
always grant lawyers discretion to choose
whether to be morally responsible or an amoral
partisan?
– Do lawyers always get to pick their clients?
– Do you always know at the outset what kind of client
you are getting?
– Sometimes it is the situation, rather than the client.
The Model Rules might force the issue in a way the
lawyer finds morally uncomfortable. See Rule 1.6
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What Did You Think About the Red
State/Blue State Video?
http://law.fordham.edu/louis-stein-center-for-law-andethics/10469.htm
Do you see any contemporary issues in which one can
identify the strands of the differing historical approaches
described in the Red State/Blue State article?
Have you come up with a decision about whether 0 for
yourself – you are more comfortable with the dominant
conception of the lawyer’s role (hired gun) or with one of
the alternative visions? It’s worth thinking about before
you go into practice.
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Questions for each Group
What are the important points from this section
that your classmates should know?
What was your reaction to this section?
Would you recommend to your classmates that
they read this section (even though it wasn’t
assigned)?
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Lawyering with Moral Responsibility
• What does “extralegal morality” mean?
• David Luban suggests lawyers should bring
extralegal morality into their work. What does this
mean?
• Simon does not suggest that, but he does believe in
moral activism for lawyers, especially through the
exercise of discretion. How does Simon suggest a
lawyer might use this type of discretion in work?
– Would he treat wealthy corporations and low income
clients differently re evading the spirit of the law?
• What do you see as the advantages of a moral
activist approach to lawyering? Disadvantages?
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To Apply this Perspective:
You are a lawyer representing Client in a deal
where “Plan A will yield client $1.5 million. Plan
B will yield Client $2 million but will impose
moderate but significant costs on many
innocent third parties for which Client will not
be legally responsible. Both plans are legal (as
in, a good faith interpretation of the law
sustains both and will find both reasonable).
Client wishes to abide by the law and maximize
its profits. What [will you] advise Client to do?”
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Feminist Lawyering
• Is there a consensus on what this means?
• How do MacKinnon and Menkel-Meadow differ
in the ways in which they define feminist
lawyering?
• Did you find persuasive Menkel-Meadow/Gilligan
theory about the different ways of approaching
problems? i.e. the Amy v. Jake approaches? See
pp. 829-30.
• What do you see as the advantages of this
approach to lawyering? Disadvantages?
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Hypo p. 836:
You are representing the defendants in the
Spaulding v. Zimmerman case described in
Chapter 4. Given your knowledge that Spaulding
both suffered from an aneurysm and was not
aware of that aneurysm, how would you as a
feminist lawyer behave differently than the
defendants’ actual lawyers? [Cf. Heinz’ famous
pharmacist hypo, p.829]
See also p. 835 re possible rule changes this
approach might lead to.
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Religious Lawyering
• Is there a consensus on what this term means?
• The book has five excerpts (Levinson, Allegretti, Al-Hibri,
Pearce, and Vischer) that focused on religion in general
and on Christian, Muslim & Jewish lawyers.
• Which author(s) concluded that a lawyer should bring
religion into her work?
• Re Q. 8-22(p. 838): Prof. Vischer explains why the 3 points
below should not prohibit religious lawyering. What
were his arguments? [Re client autonomy, publicly accessible
norms, & the threat of illiberal communities]
– See pp. 866, 868, and 871 [Choice D should be “none”]
• What do you see as the advantages of this approach to
lawyering? Disadvantages?
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Al –Hibri Excerpt, Page 849:
There was, however, one bright spot in my law
firm experience. There was one area of the law that
(subconsciously) suited my values quite well, that of
securities regulation. This area of the law came into
existence in order to protect public interest. For this end,
full and adequate disclosure (in religious terms, telling
the truth) by issuers of securities was required. I
therefore launched into this difficult area of the law with
a great deal of zest. In fulfilling the injunction of doing
my work well, I spent long careful hours conducting due
diligence and drafting documents, so that the public
interest would be properly protected. I flourished doing
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that kind of work, I withered doing deals
How would you come out on this issue?
The Bar Association Ethics Committee has been
asked to consider whether and when Rule 1.7
requires a lawyer who chooses a religious lawyering
perspective to disclose her perspective to her client.
What should it decide?
o The lawyer must always disclose this
o The lawyer must never disclose this
o Whether the lawyer must disclose depends on
the facts and circumstances and whether the
lawyer thinks it might lead to a conflict of interest
with the client
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Lawyers and Racial Justice
• Did Anthony Griffin think that his being AfricanAmerican was relevant to his decision to represent
the KKK on a First Amendment issue?
• What does David Wilkins mean when he
recommends trying to reconcile the domains of the
professional, the personal & the obligation thesis?
• How did Wilkins apply this to the 4 cases he
discussed? (Griffin/Johnson/Darden/Cochran)?
• Why does David Wilkins think that African-American
lawyers have racial obligations? See p. 877, 890
• What do you see as the advantages of using a Racial
Justice approach to lawyering? Disadvantages?
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David Wilkins approved of the professionalism
of all 4 of these black lawyers.
• Johnnie Cochran (Defense counsel, OJ Simpson)
• Christopher Darden (Prosecutor, OJ Simpson)
• Anthony Griffin (ACLU-affiliated lawyer who
represented the Grand Dragon of the Klu Klux
Klan)
• Robert Johnson (elected Bronx DA who
announced that he would not seek the death
penalty because of its racially discriminatory
application)
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Should a lawyer who believes it is important to
inhabit all 3 moral domains (professional ,
personal & obligation) talk about this publicly?
See Justice Sotomayor &“a wise Latina”
http://www.youtube.com/watch?v=I-zg0FduCRE
http://www.youtube.com/watch?v=gxGoiFVlec4
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Lawyer as Civics Teacher
• What does the “Civics Teacher” approach to
lawyering mean?
– “Civics teacher” lawyers explain the “spirit” of the
law as well as the “letter” of the law
– This theory says that descriptively – this is what
“civics teacher” lawyers do
– Normatively – this is what lawyers should do (rather
than simply serving as a hired gun)
• Do you think clients would welcome lawyers who
function as “civics teachers”?
• What do you see as the advantages of using this
approach to lawyering? Disadvantages?
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How would the “Civics Teacher”
Lawyer Respond?
Lincoln Motors is deciding whether to
make a design change in the LS Model not
required by law this year but required next
year. Lincoln Motors informs you that their
studies show that the design change would
save 100 lives a year but would raise the
price of each car $5000.
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Ben W. Heineman, Jr., General Electric’s former
senior vice president and general counsel, has
explained how he sought in outside counsel both
‘an outstanding technical lawyer’ and ‘a wise
counselor,’ who could offer ‘thoughtful insights
into all nonlegal issues – ethical, reputational,
and commercial.’ Heineman understood his role
as ‘shaping the company’s . . . role as a corporate
citizen[,] and . . . addressing questions of how to
balance the company’s private interests with the
public interests affected by the corporation’s
actions.’
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Question 8-33 (p. 909)
If I had to choose one perspective for my role as lawyer, I
would choose:
o A) hired gun
o B) moral advocate
o C) feminist lawyer
o D) racial justice lawyer
o E) religious lawyer
o F) civics teacher
I believe it is possible and I plan to use more than one of
these perspectives in my role as a lawyer.
o Yes
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o No
Would you support the adoption of a
new ABA Model Rule that said…..
Rule 1.0
Lawyers are morally accountable for their
actions.
oYES
oNO
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