Saturday, January 13, 2007

Are lawyers UNIQUELY amoral?

One of the comments on Paul's post regarding Stimson's attack on the law firms representing Gitmo (and other) detainees notes that the view expressed by Stimson is fairly widespread. The comment (by Caleb) points to the fact that laypeople commonly ask aspiring or practicing lawyers how they would or do approach representing someone guilty of a heinous crime. I would add to the evidence of the public's discomfort with the seeming amorality of legal practice the fact that tv and movie dramatizations frequently show lawyers facing such moral dilemmas---and that often the "right" thing for the lawyer to do is to find some way to rat out or otherwise turn on his client. In the more sophisticated versions of these dramas, someone makes the rule-utilitarian argument, explaining that everyone has a role to play in our adversarial system of justice, and that even if a lawyer's skills occasionally spring a guilty person, that is a small price to pay for keeping the government honest and avoiding a descent into totalitarianism. That argument is made in such dramas, but rarely successfully.

The question I'd like to pose (as the title of this post indicates) is whether lawyers are uniquely, or even unusually, amoral? The answer is almost certainly not. People in sales, marketing, advertising, and similar fields must frequently pitch products that the public does not need, and that may well be of inferior quality to those of their competitors. Others design and market products---gas-guzzling SUVs, say---that impose substantial negative externalities on society as a whole. I could be wrong, but I don't think that people in these or other professions (e.g., the accountant who figures out how to save the wealthy client millions of tax dollars that would otherwise go towards public projects), come in for nearly the harsh treatment as lawyers do. And when they do---as in Thank You For Smoking, say---one sometimes gets the sense that the critical treatment works because it trades on negative stereotypes about lawyers (even when the person criticized is not technically a lawyer).

So why is the amorality of the legal profession singled out as especially problematic? The answer, I think, is that unlike advertisers, accountants, engineers, and salespeople, we lawyers claim to serve justice. If that's right, then the fascination with the particular injustices achieved by lawyers committed to justice resonates with the public in the same way that sex scandals involving the clergy do. Despite the low esteem in which the public hold lawyers, they expect better of us. And therein lies the rub: A homophobic minister who has a same-sex affair or a supposedly celibate priest who molests minors really has betrayed the ideals he preaches; but a lawyer who represents a guilty client has, by the rule-utilitarian standards of the legal profession, acted honorably. We cannot expect public condemnation of lawyers to abate because the criticism aims at the ideals of the legal profession rather than at deviations from that ideal. And that in turn is what makes Stimson's comments so despicable. As a lawyer, he ought to know better.

16 comments:

Jordan said...

I am curious about why lawyers are seen as committed to justice. It seems the utilitarian leap from what lawyers actually do to their place in serving the public good is recognized more easily, at least within the profession, in law than in business.

For example, the automobile manufacturer strives to design and sell vehicles that will make him the largest profit. But he knows that in a capitalist system, his efforts combined with that of his competitors will lead to better vehicles at cheaper prices and increased producer and consumer surplus. He may sell his share of SUVs, but that is because consumers’ willingness to pay exceeds his costs, and so each sale is contributing value. There may be negative externalities from his business (pollution, traffic, highway fatalities), but he cannot account for them, if they are really externalities (that is, customers’ willingness to pay is below costs for their accommodation), or else lose business to competitors. A capitalist system requires that the government manage inefficient markets. Thus, when the automobile manufacturer strives for profits, he strives for the public good.

Lawyers strive for profits by best representing their clients. If they all do this perfectly, truth and justice is served and society is better off. But this rationalization is not altogether different than that available to the businessman. Why do we speak of lawyers serving three masters, self interest, customer interest, and public interest, and yet we rarely justify businessmen as serving the same three masters? Is this an elitism derived from the barriers to entry of the profession? Is there another explanation?

Derek said...

I don't want to detract from the thread of this discussion but want to add, as an aside, that what I found most reprehensible about Stimson's comments was not that they betrayed his lack of understanding of the adversarial system, but that they implied, in no uncertain terms, that the detainees in Guantanamo are in fact terrorists. But whether or not they are guilty of terrorism, or indeed anything at all, is precisely what needs to be determined in a court of law. Stimson's comments show not just that he buys into the common stereotype that lawyers are amoral by working on behalf of the guilty, but that he fails to see the point of our justice system at its most basic level.

David C. said...

To respond to Caleb and Mike's point, I would distinguish between two different possible meanings of "How can you defend a bad person?" The first is the amoral question that Mike discusses---the idea that helping clients who clearly "deserve" to be punished seems a perversian of justice, not the accomplishment of it.

However, I think there's a second meaning, and one that I often subscribe to. It isn't, "How can you help BAD people," as if that's unacceptable, but more "How CAN YOU help bad people?" Here, the focus is on the actual lawyer, not the client, and the question is more about the lawyer's ability to psychologically and emotionally accept the outcome if she succeeds in, say, freeing a Gitmo detainee who may in fact attack the U.S. again (although Derek's point is well taken).

I myslef am a firm believer in everybody's right to a fair day in court, but I have asked friends who are interested in public defense work how they feel when they have or will represent bad people. Personally, I think I'd feel really ambivalent if I helped acquit Jeffrey Dahmer (assuming I believed he was guilty), notwithstanding the fact I believe he deserves a chance to beat his charges like any innocent individual would. Similarly, I wonder how prosecutors can prosecute and seek harsh sentences for suspects they at best can only *think* are guilty. In both cases, I know the defense lawyers or prosecutors are serving justice, but I'm curious as to how they overcome their cognitive dissonance. That's why I might ask OJ's defense team: "How does it feel to help a murderer? Does it feel good?" Or I might ask Marcia Clark (before the acquittal): "What if you're wrong?" We might ask the same question of a soldier or police officer who has killed: "How does it feel to kill another human being?" We might completely agree with the morality of that solider or police officer's actions---especially if they were defending themselves or others---but we are still curious about how they personally feel about thier role in a dramatic event.

I think the second meaning I've described may be relatively common. Consider that many lawyers refuse to take on certain clients---for example, some prosecutors probably never could be defense lawyers, and vice versa; some lawyers may refuse to represent, say, Holocaust profiteers or gun companies or tobacco; some Republicans might never work for Democrats, and vice versa. I don't think these examples of selective advocacy reflect a belief that the disfavored clients are unworthy of advocates; I think that many lawyers, and the public more generally, know that sometimes the dissonance is insuperable for them personally, and they wonder how others conquer it.

Adam P. said...

Jordan, I think you overgeneralize. For some of us, law is NOT a business. Some of us would not represent a client we found morally reprehensible, particularly outside of the criminal context. (I think we'd agree there's no "right to counsel" in a hostile takeover, yet I also have no doubt some lawyer would take the cause.)
Sadly, the business side has made it so that the majority of folks who ARE committed to justice spend years working in law as a business in order to make some money, because law as justice pays like crap.

Luis Villa said...

There may be a meaningful distinction between amoral lawyers and (say) amoral marketers- if the marketer sells a profoundly immoral product (say, a Pinto) the legal system is presumed to be a backstop which will punish the marketer. In the popular imagination, the lawyer is part of that "final" backstop against the amorality/immorality of others, and so should likely be held to a higher standard.

Obviously, this isn't a completely fair perception (the Nifong case is a good reminder that there are checks and balances even on lawyers) but it is there.

(I might also note that many people don't believe that amoral competition leads to the best economic outcomes; so it shouldn't surprise that many are skeptical about amoral adversarial relationships leading to the most moral/just outcomes.)

Jordan said...

Adam, I echo your frustrations about the state of the legal profession, particularly for young lawyers with significant debts to pay before they can pursue the goals that motivated them to go to law school. There are many public interest lawyers, and many business people dedicated to the public interest. I wish there were more of both.

However, with respect, I think you miss my point (might be my fault). I do not mean to say that all lawyers (or all businessmen) are only motivated by profits. I only mean to say that we can justify self-interested business acts similar to the way we justify self-interested lawyer acts. Yet, we tend to perceive the morals involved in the professions differently.

Adam P. said...

I just don't think we can make the assumption that all lawyers are acting in their own self-interest. I think the business model fails to apply to anyone who doesn't have the traditional client-hires-lawyer relationship. If your client is "the government", or "the public interest", your sense of justice may be your primary guide, since the self-interest or "client interest maximization model" will not really give you much.

Amos Blackman said...
This comment has been removed by the author.
Amos Blackman said...

I think it's far more likely that it's our claim to amorality that provokes public distaste for the profession than our claim to serve justice, if for no other reason than that I know far more lawyers who claim the former than claim the latter. To cast Stimson's comments in the most flattering light, his criticism is that these firms are acting immorally, and the reply, "We're not immoral, we're amoral," does little to reassure the public that lawyers are trustworthy.

On principle, I agree with Adler that "it is wrong to impugn attorneys on the basis of the clients they represent," but I can understand why the public may be skeptical. Last time we encountered this justification, it was trotted out for Chief Justice Roberts in defense of his "so-called 'right to privacy'" memo. Just as we're all quite sure that Roberts was nominated because of his views on abortion, we're similarly confident that these firms didn't just roll the dice when choosing to represent the detainees.

If Stimson's remarks continue to get attention, I have to believe that the amorality defense will do little to change the public perception of the profession. Yet I see little chance that a firm will pony up a substantive justification. While there are a number that might be welcomed by a public that has come to question the justice of the Administration's policies, to set such precedent would suggest that perhaps they should be able to justify their representation of Stimson's "reputable firms." That, they might have trouble doing.

razzputin said...

Lawyers strive to pad their coffers and do not hesitate to sacrifice integrity in the process, with NO fear of sanctions. The failure of this profession to implement safeguards to eradicate the bacteria who prey on clients is well documented.

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