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THE ROLE OF LAWYER

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I - 1 CHAPTER I THE LAWYER AS PROFESSIONAL: CONFLICTING OBLIGATIONS, CONFUSING ROLES I. THE ROLE OF LAWYER: WHO ARE WE? WHO AM I? Before reading the following materials, think briefly about why you chose to become a lawyer. What do you want from your professional career? What are your goals and expectations? Then think about what is expected of you. To whom do you have obligations, and what are they? Are all these obligations consistent, or do they conflict? As an attorney, what role do you play vis-a-vis your clients, the courts and the “system”? How will you and your role be perceived by non-lawyers, and are you prepared to deal with that image? Will being a lawyer impact your ability to be the person you want to be? Consider the following excerpt from Monroe H. Freedman, Lawyer and Client: Personal Responsibility In a Professional System (in Ethics and Advocacy, Final Report of the Earl Warren Conference, The Roscoe Pound-American Trial Lawyers Foundation [1978], © Roscoe Pound Foundation, reprinted with permission) : It is a singularly good thing, I think, that law students, and even some lawyers and law professors, are questioning with increasing frequency and intensity whether "professionalism" is incompatible with human decency - asking, that is, whether one can be a good lawyer and a good person at the same time. Why should this be an issue? What is it about lawyering that might be inconsistent with being a “good” person? What is a good person? What is a good lawyer? These are complicated but important questions. In his article, Freedman discusses an article by Professor Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, and continues: Professor Wasserstrom holds that the core of the problem [as to whether one can be a good person and a good lawyer] is professionalism and its concomitant, role-differentiated behavior. Role differentiation refers, in this context, to situations in which one's moral response will vary depending upon whether one is acting in a personal capacity or in a professional, representative one. As Wasserstrom says, the "nature of role-differentiated behavior ... often makes it both appropriate and desirable for the person in a particular role to put to one side considerations of various sorts - and especially various moral considerations - that would otherwise be relevant if not decisive." An illustration of the "morally relevant considerations" that Wasserstrom has in mind is the case of a client who desires to make a will disinheriting her children because they opposed the war in Vietnam. [This article was written in the 70’s. Substitute whatever conflict works best for you.] Professor Wasserstrom suggests that the lawyer should refuse to draft the will because the client's reason is a "bad" one. But is the lawyer's paternalism toward the client preferable - morally or otherwise - to the client's paternalism toward her children?I - 2 We might all be better served," says Wasserstrom, "if lawyers were to see themselves less as subject to role-differentiated behavior and more as subject to the demands of the moral point of view." Is it really that simple? What, for example, of the lawyer whose moral judgment is that disobedient and unpatriotic children should be disinherited? Should that lawyer refuse to draft a will leaving bequests to children who opposed the war in Vietnam? If the response is that we would then have a desirable diversity, would it not be better to have that diversity as a reflection of the clients' viewpoints, rather than the lawyers'? In another illustration, Wasserstrom suggests that a lawyer should refuse to advise a wealthy client of a tax loophole provided by the legislature for only a few wealthy taxpayers. If that case is to be generalized, it seems to mean that the profession can properly regard itself as an oligarchy whose duty is to nullify decisions made by the people's duly elected representatives. That is, if the lawyers believe that particular clients (wealthy or poor) should not have been given certain rights, the lawyers are morally bound to circumvent the legislative process and to forestall the judicial process by the simple device of keeping their clients in ignorance of tempting rights. Nor is that a caricature of Wasserstrom's position. The role-differentiated amorality of the lawyer is valid, he says, "only if the enormous degree of trust and confidence in the institutions themselves [that is, the legislative and judicial processes] is itself justified." And we are today, he asserts, "certainly entitled to be quite skeptical both of the fairness and of the capacity for self-correction of our larger institutional mechanisms, including the legal system." If that is so, is it not a non sequitur to suggest that we are justified in placing that same trust and confidence in the morality of lawyers, individually or collectively? There is "something quite seductive," adds Wasserstrom, about being able to turn aside so many ostensibly difficult moral dilemmas with the reply that my job is not to judge my client's cause, but to represent his or her interest..” Surely, however, it is at least as seductive to be able to say, "My moral judgment - or my professional responsibility - requires that I be your master. Therefore, you will conduct yourself as I direct you to." 1. Can a good lawyer be a good person? To what extent can (should) a lawyer put aside his or her own values in representing a client? Should a lawyer decline representation because he or she disagrees with the client? With the client's means? With procedures he or she must use to accomplish either? Is it OK to be amoral as long as we're not immoral? Is it OK to pursue legal, but in your view immoral, ends of a client? Is there anything wrong in asking people with legal but (arguably) immoral aims to accomplish those aims themselves? Does it (should it) matter that there is likely to be less (or un-) ethical lawyers around to do the client's bidding, and if done by those with a better sense of ethics, at least there is some hope for a better (more just) result? Are these even appropriate concerns? Should we discuss the morality or "rightness" of goals and means with the client, or are we to address only the legal aspects of a client's affairs? See MR. 2.1. 2. Is there a better way to think about what it means to be a “good lawyer”? Consider the following:I - 3 THE


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