I rather liked Rebecca Blemberg’s post on lawyer happiness and virtue ethics and would like to extend the discussion. I agree that one of the mistakes a lawyer can make is to follow the lure of a consequentialism that is divorced from her knowledge of herself and what that tells her about the way in which she should practice law.
We normally associate this with pursuit of the shimmering rewards of legal practice such as money or glory. Rebecca is right to suggest that these things, in and of themselves, will not make for a happy career. I know plenty of lawyers who love the practice while making tons of money and winning lots of cases, but their happiness as lawyers (and perhaps their success) has another source.
But it seems to me that one can become unhappy in the law by pursuing what might be seen as selfless objectives as well. Thus the picture of Al Pacino as Milton in The Devil’s Advocate.
My friend Teresa Collet (St. Thomas) uses the final scene in The Devil’s Advocate in lectures on professional responsibility. Keanu Reeves’ character, having chosen a “selfless” course is hounded by reporters promising to make him a star. The movie ends with Pacino as Satan – whose temptations we might have thought Reeves as having resisted – breaking the fourth wall. “Vanity, definitely my favorite sin.”
One can go to work as a public defender or legal services lawyer because one believes it is praiseworthy and will lead to the gratitude of one’s clients or the approbation of the community. However, virtuous this may be, doing it for the praise of others is also, depending on how you frame it, a consequentialist and deontological strategy.
I know many lawyers who represent poor people who are very satisfied with the the practice but, again, that satisfaction lies else where.
Rebecca’s invocation of virtue ethics is a pretty good take on where satisfaction might lie. It is perhaps a small quibble, but I would suggest what is (at least to me) a slightly broader ethics – call it an ethics of personal ontology. A nickel summary would be the old cliche – “to thine own self be true.”
The lawyers that I know to be happiest believe their practice is valuable and consonant with who they are as people. and allows them to use their gifts in a way which is consistent with their personal morality and of value to their clients. To identify what that is requires subjectivity- that’s the easy part – but it also requires intentionality. A lawyer must resist being swept along by the currents of his life. Having not always avoided that, I can say to younger men and women that it is an easy and deceptive trap.
Finally, I have one elaboration and one qualification.
The elaboration: Rebecca properly worries about those whose concept of virtue is, should we say, skewed and sees consequentialist (fear of getting caught?) and deontological (recognition of the rules) as necessary correctives. She is absolutely right.
My own little addition – as someone who believes in moral complexity rather than moral relativism – is to suggest that those who do have disordered concepts of virtue are unlikely to be happy. My own sense is that, at the end of the day, very few of us claim to be or are moral relativists. Professional dishonesty is intrinsically wrong. It will not make you happy. At least not for long.
The qualification: Personal happiness is not a simple function of professional happiness. A true ontological ethic will recognize that we seek happiness from other sources as well such as friends and family. These can qualify the pursuit of one’s professional ethic and professional satisfaction. I might say – in fact I would say – the moving to academia was the best professional choice I have made and that, in some sense, I should have done it a number of years ago. But when I was a single father with significant financial obligations, it would not have worked as well.
Professor Blemberg’s and Professor Esenberg’s posts remind me of a short talk I gave 10 years ago about legal ethics and personal goodness. Part of it follows:
Over the course of recorded human existence, I think it is clear that many people and peoples have had what I’ll refer to imprecisely as a Grand Religious Sensibility and that Sensibility has led to an overarching Moral Sense. I think this is what C.S. Lewis, in his wonderful little book, The Abolition of Man, calls by the ancient Chinese term, the Tao, loosely referring to the Road or the Way. In a short Appendix to the book he gives ample illustrations of commonality of the Ethics or Morality of the Tao, across historical, cultural, geographical, and religious (in the narrower sense) lines: Chinese, Egyptian, Jewish, Mesopotamian, Platonic, Aristotelian, Stoic, Christian and others. He catalogues the common rules of human action under headings:
1. The law of general beneficence (Do unto other…)
2. The law of special beneficence (Care of family and friends)
3. Duties to parents and elders
4. Duties to children and posterity
5. The law of justice
6. The law of good faith and veracity
7. The law of mercy, and
8. The law of magnanimity.
The reason I suggest that there is little of ethics or morality underpinning the rules of so-called legal ethics is that we find so little of the Overarching Moral Sense, or of the Tao, in the rules governing lawyer conduct. Indeed, the only law which is really recognized is what Lewis calls the Law of Special Beneficence. And, the objects of the Special Beneficence are principally clients, (i.e., typically those who buy our services) and to a lesser extent courts, and to still lesser extent, other lawyers and third parties, especially adversaries.
In the Model Rules, there is no Golden Rule, or law of General Beneficence.
In the Model Rules, there is no law of Mercy. Consider the fact that the American Bar Association and the vast majority of states have roundly rejected a rule that would require lawyers to reveal client confidences when and to the extent that it reasonably appears necessary to prevent the client from committing an act that would result in death or serious bodily harm to another human being.
In the Model Rules, there is no law of Magnanimity. Consider the history of the mandatory pro bono initiatives.
In the Model Rules, there is no law of Justice, nor is there a law of Good Faith and Veracity.
Justice. Is it the lawyer’s duty to seek justice? Many of my law students say yes. I suggest to them that the whole system would fall apart if a lawyer had a duty to seek justice. Some of them blanch; some cynically snicker. A lawyer may, of course, seek justice on behalf of a client, but the lawyers has no professional duty to do so and it may be just as likely that a lawyer is seeking to avoid justice, so long as that can be done legally. The idea is expressed most clearly not in the Model Rules, but in the ABA’s Model Code:
The duty of the lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law, . . . In our government of laws and not men, each member of our society is entitled . . . to seek any lawful objective through legally permissible means. . .
What counts is not Justice, but Law. That which is legal is Permissible; that which is Permissible for the Client and is desired by the Clients is to be zealously pursued by the Lawyer, regardless of the Lawyer’s desire for the Tao, which is to say, in Western religion thought at least, the lawyer’s Conscience.∗
Good Faith and Veracity. We lawyers are forbidden to lie, but we are not required to tell the truth. Misrepresentation is prohibited, but candor is not compelled and is often inconsistent with a lawyer’s duty. In Homer’s Iliad we read:
Hateful to me as are the gates of Hell is that man who says one thing, and hides another in his heart.
But isn’t this often a lawyer’s stock in trade? Attorney William Clinton’s pathetic performance in the Monica Lewinski fiasco gave us but one example of lawyerly deconstruction and intentional misleading, while arguably not lying. “It depends on what ‘it’ is”, doesn’t it? The temptation to this sort of thing may be stronger in the litigator than in the transactional lawyer. Is there any litigator in the audience who has not encountered that kind of verbal prestidigitational tap-dancing in responses to interrogatories or RPDs? Or who hasn’t engaged in it?
Once we get outside the sanctum sanctorum of the attorney-client eggshell (when I typed this last night I typed “eggshill”. A Freudian typo?), the practice of Law is not all Tao-like. It is driven by the self-interest, which is often to say, the selfishness, both of the Client and of the Lawyer. Is there a lawyer in the audience who has ever been paid by a client to seek Justice, whether or not it is consistent with the selfish interests of the paying client himself? How many of us have been retained by altruistic clients? Clients willing not only to lose, but to pay us good money to assist in their losing? Plus, lawyers need to survive and are dependent on clients for income. In addition to the lawyer’s need to survive is the desire of lawyers to thrive. The New York Times reported last week that starting salaries for associates in many large firms have risen to $160,000 to permit the firms to compete with dot com and other high tech companies offering equity interests to in-house lawyers. That gives us another illustration of the so-called digital divide.
In the final analysis, I think that lawyer’s ethics rules subserve the lawyer’s need to survive and desire to thrive. That is to say, they are self-serving or selfish rules. In David Luban’s terrific book, The Good Lawyer, he concludes his chapter entitled “The Adversary Excuse” with this (and I conclude with this):
Anything . . . that is morally wrong for a nonlawyer to do on behalf of another person is morally wrong for a lawyer to do as well. The lawyer’s role carries no more privileges and immunities. Am I not saying that a lawyer may be professionally obligated to do A and morally obligated not to do A? That is indeed what I am saying. When moral; obligation conflicts with professional obligation, the lawyer must become a civil disobedient. Not that this is likely to happen. Lawyers get paid for their services, not for their consciences. But so does everybody else. As we do not expect the world to strike a truce in the war of all against all, we should not expect lawyers to. Shen Te, The Good Woman of Setzuan,∗ says:
I’d like to be good, it’s true, but there’s the rent to pay. And that’s not all: I sell myself for a living. Even so I can’t make the ends meet, there’s too much competition.
That, of course, is the way the world is, and criticizing an ideology won’t change the world. The point of the exercise, I suppose, is merely to get our moral ideas straight: One less ideology is after all, one less excuse.