the arguments of Wasserstrom on legal ethics.
INTRODUCTION
According to Richard
Wasserstrom, when a lawyer represents a client, he is obliged to defend the
cause of the client. He is obliged to show indifference to the ends and the
moral consequences of the ends sought by his clients.
The focus of this paper is
on the arguments of Wasserstrom on legal ethics. For a better discussion of the
subject matter, we shall begin with conceptual clarifications of legal ethics,
morality in ethics using the idea of some philosophers, their argument towards
morality. Next, we shall present Wasserstrom’s argument on legal ethics. We
shall further highlight the arguments for and against his view on legal ethics.
LEGAL ETHICS
According to Stephen Pepper, when practising lawyers,
law professors and scholars in the field of law speak of ‘legal ethics’, “they
almost always are thinking about the ethics of the practice of law, the ethics
involved in accomplishing legal work for clients.”[1]Alice Woolley states that the concern of legal
ethics is not on the morality of lawyers,
the morality of clients, or the morality of laws. Its concern “must be
with what lawyers and clients do, not with who they are.”[2]Issues
discussed in legal ethics focus on how lawyers should behave. Scholars of legal
ethics grapple with the issues that buttress on the relationship between a
lawyer and his client, and the relationship between a lawyer and the rest of
mankind.
In legal ethics, there is a debate among legal
ethicists whether a good lawyer can be a good person. Some scholars argue that ‘good
lawyers’ by the virtue of their profession are obligated to seek the interests
of their clients even when doing so would make them use the law to the
prejudice of the weak or the innocent and detract from the common good. Others
argue that the idea of legal boundaries does not provide an adequate protection
against the harm lawyers cause others in the pursuit of the interests of their
clients.[3]
Richard Wasserstrom together with Charles Fried is among the scholars that
argue that a good lawyer is under obligation to pursue the interest of his
client. We shall focus on his arguments on legal ethics, with particular
emphasis on lawyer-client relationship.
RICHARD WASSERSTROM’S ARGUMENTS ON
LEGAL ETHICS
Richard Wasserstrom is an
American Professor of Law and Professor of Philosophy from the University of
California School Of Law, Los Angeles. In 1974, he delivered a lecture at
“Amherst Collegeas a part of the Copeland Colloquium series on morality and the
professions.”[4]
This lecture was later revised and published as an article with the title,
“Lawyers as Professionals: Some Moral Issues.”
In the above article, Wasserstrom
examines the two moral criticisms levelled against lawyers. The first of these
criticisms is based on lawyer’s relationship with the world at large. Some
critics hold that the lawyer-client relationship makes lawyers to be amoral and
at worst occasionally immoral in their dealings with the rest of mankind.[5]
The second criticism focuses on the relationship between the lawyer and the
client. Here, it is argued that the lawyer-client relationship is morally
objectionable. This is so, because in this relationship the lawyer dominates
and treats his client in both an impersonal paternalistic fashion.[6]
In examining these criticisms,
Wasserstrom asserts that a layer is a professional. As aprofessional, he is
more subjected to criticism more than any other professional. By professional,
he meant one who practises the professions that require a substantial period of
formal education such as medicine or law.[7]Commenting
on the first criticism on lawyers, Wasserstrom highlights that the major
feature of every profession is the relationship between the professional and
the client or patient. He calls the behaviour exhibited by each party in this
relationship a “role-differentiated behaviour.”[8]
For him, the nature of this role-differentiated behaviour makes a person in a particular
role to put off one aspect of considerations, more especially moral
considerations which otherwise would be relevant. Wasserstrom illustrates this
point using the example of parent-child relationship. He argues that in every
human culture, parents prefer the interests of their own children over the
children of others. Thus, it is considered appropriate for a “parent to
allocate excessive goods to his or her own children, even though the children
of others may have substantially more pressing and genuine needs for these same
items.”[9] He
further asserts:
If one were trying to decide what the right
way was to distribute assets among a group of children all of whom were
strangers to oneself, the relevant moral considerations would be very different
from those that would be thought to obtain once one's own children were in the
picture. In the role of a parent, the claims of other children vis-a-vis one’s
own are, if not rendered morally irrelevant, certainly rendered less morally
significant. In short, the role-differentiated character of the situation
alters the relevant moral point of view enormously.[10]
According
to Wasserstrom, a professional has to represent the interests of his client.
The client has to be attended to, or looked after by the professional. This
implies that the professional, like the parent is to prefer in various ways the
interests of his or her client or patient over those of individuals generally.
WASSERSTROM
ON THE LAWYER-CLIENT RELATIONSHIP
In the lawyer-client relationship, the lawyer is obliged
to show indifference to the ends and the moral consequences of the ends sought
by his client which the lawyer in ordinary situations would oppose. Wasserstrom
opines that when a lawyer represents a client, the lawyer is obliged to make
use of his expertise to achieve the end sought by his client. He is to do this
“irrespective of the moral worth to which the end will be put or the character
of the client who seeks to utilize it.”[11]
In as much as the end sought by the client is not illegal, the lawyer is
primarily amoral. It is his function as a legal professional to make his
peculiar skills and knowledge available in accordance to the law to those with
whom the relationship of client is established. [12]
By way of comment, Wasserstrom is of the view that when a lawyer represents his
client, he should not be concerned with the moral status of his client or the
moral implication of the end which his client seeks. Even though in ordinary
situation, the lawyer may strongly disapprove the ends sought by his client;
but for the sake of his profession, he has the duty to defend the client. In
this situation, the lawyer is an amoral technician. He is not interested about
right or wrong.
Furthermore, Wasserstrom posits that when a lawyer
agrees to represent a client, the lawyer is under an obligation to do
everything he can to defend the client in trial irrespective of the lawyer’s
belief in the client’s innocence. He further argues:
There are limits, of course, to
what constitutes a defense: a lawyer cannot bribe or intimidate witnesses to
increase the likelihood of securing an acquittal. And there are legitimate questions,
in close cases, about how those limits are to be delineated. But, however these
matters get resolved, it is at least clear that it is thought both appropriate
and obligatory for the attorney to put on as vigorous and persuasive a defense
of a client believed to be guilty as would have been mounted by the lawyer
thoroughly convinced of the client's innocence.[13]
More so, Wasserstrom underscores that it
is appropriate and obligatory for the attorney to employ a vigorous and
persuasive argument in the defence of a client believed to be guilty. He should
do this as though he is convinced of the client's innocence. Wasserstrom
further highlights that in the course of defending his or her client, an
attorney is permitted, as a part of his or her duty of representation, to make
use of procedures and practices which are morally objectionable in themselves
and which the lawyer in other situation will disapprove. For instance, in
defending a client accused of rape, the attorney may insist that the accuser
should undergo a psychiatric examination before trial. The results of the
examination may help the lawyer prove that the offense never occurred. It is
important to note that this is no longer permitted by law, but it was at the
time Wasserstrom discussed this issue.[14]
For Wasserstrom, there is
nothing wrong for a lawyer to represent a client whose aims and purposes are
immoral. If the lawyer agreed to represent such a client, he is obliged to
provide the best possible assistance, irrespective of his or her disapproval of
the objective that is sought.[15]
According to Wasserstrom, the job of the lawyer is “not to approve or
disapprove of the character of his or her client, the cause for which the
client seeks the lawyer’s assistance, or the avenues provided by the law to
achieve that which the client wants to accomplish.”[16]The
lawyer’s task however is to provide that competence which the client lacks and
which the lawyer, as professional, possesses.[17]
WASSERSTROM ON THE MORAL PROBLEMS IN THE
LAWYER-CLIENT RELATIONSHIP
Wasserstrom argues that the relationship between a
lawyer and his client is a relationship of inequality. He is of the view that
the role of lawyers often makes
them form a paternalistic relation with their clients. They see themselves as
people with special competencies and conceive their clients as objects – “as
a thing to be altered, corrected, or otherwise assisted by the professional
rather than as a person.”[18]The
client’s inability to communicate in the language of the profession makes the
client to be viewed less than a person in the lawyer’s eyes. Wasserstrom also
notes that the lawyer relates with the client as though “the client were an
individual who needed to be looked after and controlled, and to have decisions
made for him or her by the lawyer, with as little interference from the client
as possible.”[19]
Regarding these paternalistic and
impersonal attitudes of lawyers, Wasserstrom posits that they are the aberrant
and not the usual characteristics of the lawyer-client relationship. He
suggests that for there to be a desirable change, the legal language should be
simplified. He also recommends that the legal processes should be made easier
and more accessible to lay persons.[20]
Many legal ethicists have reacted to
Wasserstrom’s arguments. Some scholars accepted his view while some rejected
it.
ARGUMENTS IN SUPPORT OF WASSERSTROM’S VIEW ON LEGAL
ETHICS
Roy Cohn
agrees with Wasserstrom that when a lawyer represents his client,
he is obliged to protect the interest of his client. He opines that “it is not the lawyer’s responsibility to believe or not
to believe - the lawyer is a technician . . . Law is an adversarial profession.
The other side is out to get your client. Your job is to protect your client…”[21]
Furthermore, George Sharswood supports Wasserstrom that the attorney
should pursue the interest of his client irrespective of the moral status of
the client or the moral worth of the objective which the client seeks. He
argues: “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]Still
on this, David Luban adds that it is not the duty of a lawyer to judge the
morality of the client’s cause; for this is irrelevant to the morality of the
representation. He notes that the official view of most lawyers is that the
“lawyer’s morality is distinct from, and not implicated in, the client’s.”[23]
He also argues that the client’s interest is more important than that of the
rest of the world put together.[24]
Furthermore, in support of the above
arguments, Lord Henry Brougham in the speech made
in his 1820 defence of Queen Caroline, has this to say:
An advocate, in the
discharge of his duty, knows but one person in 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, amongst 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 upon 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.[25]
Daniel
Markovits also agrees with Wasserstrom that the job of a lawyer is to protect
the interest of his client. He asserts: “Lawyers - at least when they function
as adversary advocates - do not pursue justice itself, directly and
impartially. Instead, they are charged loyally to represent particular clients,
whose interests and aims may diverge from what justice requires.”[26]
ARGUMENTS AGAINST WASSERSTROM VIEW ON LEGAL ETHICS
Notably, some legal ethicists do not
totally agree with wasserstrom’s position on lawyer-client relationship. Stephen Pepper disagrees with Wasserstrom’s
view that when a lawyer represents his client, he should not be concerned with
the moral status of his client or the moral implication of the objective which
his client seeks. Pepper argues that
when the client has an end that is morally objectionable, the lawyer should initiate
moral deliberation with the client. Similarly, he opines that when the client’s
use of the law is morally wrongful, the lawyer ought to make it clear to him.[27]He
further argues that in the just debt/technical defence situation, for instance,
the lawyer might ask the client why he is considering resisting paying an
admitted debtor is seeking advice about that possibility. He should find a “respectful
way to initiate moral deliberation with the client regarding the debt and its
repayment. The lawyer would explore with the client the fairness, justice, and
morality aspects of the situation and options.”[28]
Furthermore, Daniel Markovits does
not support wasserstrom’s arguments that a lawyer should not be concerned with
the moral worth of the end sought by his client even though they go against the
moral beliefs of the lawyer. Markovits argues that the “Model Rules probably
allow lawyers to refuse to argue against their most fundamental legal and moral
beliefs, in particular by withdrawing from representations, or declining court
appointments, that would require them to do so.”[29]
For him, lawyers should be concerned with the objectives of their clients in
order to ensure that their clients are not committing fraud. He affirms: “it is
sometimes suggested that lawyers should be further required to make reasonable investigative
efforts to ensure that their clients are not committing fraud.”[30]
MORALITY
IN HOBBES
Hobbes holds that there is not anything that is absolutely
good or evil, which means that there is nothing that is objectively good or
objectively evil. What he believed was that what is good and what is bad is
based on our appetite or desire which is as a result of the state of nature in
man. Hobbes wrote:
“……..whatsoever
is the object of any man’s appetite or desire; that is it which he for his part
calleth good; and the object of his hate, and aversion, evil; and of his
contempt, vile and inconsiderable. For these words of good, evil, and
contemptible, are ever used with relation to the person that useth them: there
being nothing simply and absolutely so; nor any common rule of good and evil,
to be taken from the nature of the objects themselves; but from the person of
the man (where there is no commonwealth;) or, (in a commonwealth,) from the
person that representeth it; or from an arbitrator or judge, whom men
disagreeing shall by consent set up, and make his sentence the rule thereof……”[31]
Good and evil are therefore relative
notions for Hobbes. There is no absolute good and absolute evil and there is no
common objective norm taken from the subjects themselves, to distinguish
between good and evil. The rule for distinguishing good and evil depends on the
individual; that is, on his voluntary motions if we consider man as he is part
of the commonwealth or state. In the commonwealth, it is man who represents it,
that is to say, the sovereign who determines what is good or what is evil. From
the foregoing, it is clear that Hobbes’ notion of morality is
“self-preservative”. Nature seeks a peaceful co-existence.
Peace is achieved when we transfer our collective strength to a sovereign
authority which is the Leviathan and then the social contract. For him, the purpose of morality is to ensure peace
because peace is necessary condition for obtaining the satisfaction of one’s
desires.[32]
What move us according Hobbes are desires and aversions and the force
behind these is self-preservation.[33]
Self-interest prescribes that we avoid for example the beastly, brutal, and
short state of Leviathan forms the source of right and wrong through the will
of the Leviathan.[34]
MORALITY IN JEAN-JACQUES ROUSSEAU
Rousseau repeatedly claims
that a single idea is at the center of his world view, namely, that human
beings are good by nature but is rendered corrupt by society.[35] He criticizes Hobbes for
assuming that the human in the “state of
nature has no idea of goodness; he must be naturally wicked; that he is vicious
because he does not know virtue.”[36]
Rousseau assumes the opposite: in the natural state, humans have “uncorrupted morals“; not in the sense of a developed morality, but in
the negative sense of a primitive morality that is not yet corrupted by
society.[37]
It is a state prior to any socialization. In this state, human beings are free,
self-sufficient, and because of this they are still peaceful; they are capable
of experiencing compassion, and they live in small biologically determined
groups. Unfortunately, despite the alleged centrality of this claim, it is
difficult to give it a clear and plausible interpretation. One obvious problem
which is present from the beginning is that since society, the alleged agent of
corruption, is composed entirely of naturally good human beings, how can evil
ever get a foothold? It is also difficult to see what “natural goodness” might
be. In various places Rousseau clearly states that morality is not a natural
feature of human life, so in whatever sense it is that human beings are good by
nature, it is not the moral sense that the casual reader of his writings would
ordinarily assume.
HOBBES VERSUS
ROUSSEAU
Hobbes and Rousseau both make contrasting claims regarding the basic
nature of humans in the absence of any social order. Hobbes argues that humans
are born solitary and self-interested, void of any moral inclinations. By establishing
that humans are all more or less equal in terms of skills and abilities, Hobbes
derives the basic source of human conflict.[38] Rousseau also offers his
views on the behavior of humans in their natural state, which are notably
different from Hobbes’. While Rousseau may accept that Hobbes’ ideas may
represent a modern human, he believes this is humans in an “artificial” state
created by the society, and that the natural state is much different.[39] He claims that man in his
natural state only strives for basic needs and will be content once those needs
are met. Rousseau asserts that humans are naturally sympathetic to the
suffering of other living beings and have moral issues with the suffering of
others. This is sharply different from Hobbes’ views that humans are solely
self interested.
Natural state is much
different. He claims that man in his natural state only strive for basic needs
and will be content once those needs are met. Additionally, Rousseau asserts
that humans are naturally sympathetic to the suffering of other living beings
and have moral issues with the suffering of others. This is sharply different
from Hobbes’ views that humans are solely self-interested.
In summary, for Hobbes civilization saves
us from ourselves. Without it we would regress to a beast-like state. For
Rousseau, civilization is killing us. Thus, for Rousseau, the goal is to
reclaim a more natural existence. While Thomas Hobbes emphasized man as
self-interested, Rousseau insisted on the general will.
Thomas Hobbes and J. J
Rousseau developed theories on human nature and how men govern themselves. By
way of the differing versions of social contract Hobbes and Rousseau agreed
that certain freedoms had been surrendered for a society’s protection and
emphasizing the government’s definite responsibilities to its citizens. Both
philosophers created a revolutionary idea of the state of nature.
CONCLUSION
From the foregoing, we
have seen the major arguments of Wasserstrom on legal ethics. He argues that in
a lawyer-client relationship, lawyers are obliged to show indifference to the
ends and the moral consequences of the ends which their clients seek. For him,
when lawyers represent their clients, they are under obligation to pursue their
clients’ interest.
We began this paper with a description of legal
ethics. We noted in this paper that legal ethics concerned with the ethics
involved in carrying out legal work for clients. It focuses on what lawyers and
clients do and not on who they are. Furthermore, this paper discusses
Wasserstrom’s view on legal ethics. According to Wasserstrom, the job of the
lawyer is not to approve or disapprove of the character of his client, but his task
is to provide that competence which the client lacks and which the lawyer, as
professional, possesses.
This paper further discussed the arguments for and
against Wasserstrom’s view. Legal ethicists such as Roy Cohn and David Luban
agree with Wasserstrom that it is the duty of a lawyer to protect the interest
of his client and not to judge the morality of the
client’s cause. However, Stephen Pepper and Daniel Markovits argue
against Wasserstrom’s position. Pepper argues that
the when a lawyer represents a client whose objective is morally objectionable, the lawyer should initiate
moral deliberation with him. More so, Markovits is of the view that when
lawyers represent their clients, they should make reasonable effort to ensure
that their clients are not committing fraud.
[1]Cf. Stephen Pepper, “Locating
Morality in Legal Practice: Lawyer? Client? The Law?”,Legal Ethics, Vol. 13, no.2,p. 174.
[3]Cf. Christine Parker, “Philosophical Legal Ethics: Ethics, Morals and
Jurisprudence”, Legal Ethics, Vol. 13, no. 2,p. 165.
[4]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[5]Cf. Richard Wasserstrom, “Lawyers
as Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[6]Cf. Richard Wasserstrom, “Lawyers
as Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[7]Cf. Richard Wasserstrom, “Lawyers
as Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[8]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[9]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[10]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[11]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed on January 2, 2017, www. americanbar.org>administrative.
[12]Cf. Richard Wasserstrom, “Lawyers
as Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[13]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[14]Cf.Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[15]Cf. Richard Wasserstrom, “Lawyers
as Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[16]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[17]Cf. Richard Wasserstrom, “Lawyers
as Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[18]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[19]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[20]Richard Wasserstrom, “Lawyers as
Professionals: Some Moral Issues,” accessed
on January 2, 2017, www.
americanbar.org>administrative.
[21]David Luban, Legal Ethics and Human Dignity (Cambridge: Cambridge University
Press. 2007), p. 19.
[27]Stephen Pepper,“Locating Morality in Legal
Practice: Lawyer? Client? The Law?”,Legal Ethics, Vol. 13, no. 2,
p. 174.
[28]Stephen
Pepper, “Locating
Morality in Legal Practice: Lawyer? Client? The Law?”,Legal Ethics, Vol. 13, no. 2, p. 176.
[31]
Thomas Hobbes, “Leviathan” ed. M.
Oakeshott (Oxford: 1946)p. 4
[32]
J.Omoregbe, “Ethics: A systematic and
historical study” (Lagos:Jojaedu. Research and publishers 1993)p. 198
[33]
Thomas Hobbes http://www.phil.cmu.edu/Cavalier/80130/part1/sect4/Hobbes.html1/04/2016
[35]
Jean-Jacques Rousseau http://plato.stanford.edu/entries/rousseau/#ConHisMorPsy10/o4/2016
[36]JurgenBraungardt,
“Jean-Jacques Rousseau and his philosophy”http://braungardt.trialectics.com/philosophy/political-theory/rousseau/08/04/2016
[38]David
Mihal, “comparism of Hobbes’ and Rousseau’s views on social structure” http://dm-free-essays.blogspot.com.ng/2012/08/comparison-of-hobbes-and-rousseaus.html18/04/2016
[39]David
Mihal, “comparism of Hobbes’ and Rousseau’s views on social structure” http://dm-free-essays.blogspot.com.ng/2012/08/comparison-of-hobbes-and-rousseaus.html18/04/2016
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