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Debate Club
DEBATE CLUB 3/28/05

To Recuse or Not to Recuse?

Katherine Kruse and Stephen Pepper debate.

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In the adversary system, a lawyer who zealously advocates his client's interest is considered a moral actor in a process seen to yield justice, even if the client is a serial killer. And a lawyer is operating within the canons of ethics if he's asked to represent the serial killer and he turns down the case because he thinks that his moral views will prevent him from giving good advice.

But what about when the thing that repels him isn't universally condemned by society and the legal system—if a lawyer who thinks homosexuality is wrong, for example, is asked to represent a lesbian couple trying to adopt a child? Can he say no based on a claim of a "moral conflict of interest"?


Katherine Kruse is Associate Professor at the William S. Boyd School of Law, University of Nevada, Las Vegas. Stephen Pepper is Professor of Law at the University of Denver College of Law.

Kruse: 3/28/05, 09:09 AM
When a lawyer is asked to represent a client who wants to use the law to do something immoral, the lawyer is faced with a choice. Should the lawyer refuse to represent the client on moral grounds? Or should the lawyer represent the client all the way to the limits of what the law arguably allows?

We like to think of our laws as coming as close to justice as possible. Of course, that doesn't always happen. Sometimes laws are passed as a compromise between competing political interests and lawmakers have consciously avoided resolving controversial questions simply to get legislation passed. Often laws are left deliberately vague or ambiguous to allow their meaning to be played out in the context of individual cases. Still other times laws contain "loopholes." All of these situations create gaps between law and justice.

So why shouldn't lawyers help close the gaps by simply refusing to make legal arguments that are possible under the law, but which do not serve the interests of justice? The answer you've given, Steve, is that our system of justice is based on the ideal of government by the "rule of law," not by individuals imposing their personal beliefs on us. Lawyers play a special role in this system. They take one side—their client's side—of "what the law allows" and allow that understanding of the law to guide their legal advice and advocacy. If lawyers step out of this partisan role and make their own decisions about which clients to represent based on whether their clients are morally right or wrong, they end up substituting their own moral judgments for the rule of law. As a result, some clients will be denied what our system entitles them to: access to the law.

I agree that lawyers should not abandon their special role in our system of justice of providing their clients with access to the law. But I question whether lawyers can really fulfill that role if they ignore their own moral beliefs. We live in a society characterized by some fairly deep moral divisions on a number of issues. Even though we tolerate these moral differences, we have trouble really embracing moral viewpoints that are fundamentally at odds with our own. Where the law is unclear or ambiguous, we resort to very different visions of justice, grounded in our moral beliefs, to resolve its "true" meaning. That's why I argue that to really give clients access to the law, we need to give them lawyers who can understand and articulate competing visions of justice from the clients' perspectives, not lawyers who are merely tolerating their clients in spite of fundamental moral disagreement.

Pepper: 3/28/05, 01:20 PM
In a highly legalized society such as ours there are many things that the ordinary person cannot accomplish without the assistance of a lawyer. Creating a corporation or a trust, leaving one's property at death to those one chooses, knowing whether one's employer is paying the minimum wages required under the circumstances, or is requiring conduct it is prohibited from requiring—all of this is practically impossible for most of us without the assistance of a lawyer. Law is intended to be available to both limit and facilitate conduct; it is intended to be a resource accessible to the public. The function of the legal profession is to provide access to that resource.

If lawyers refuse to assist in lawful conduct that they personally believe to be morally wrongful, they will have substituted their judgment for that of those lawfully delegated the authority to make law—legislators and judges. Assume that in state X the law is clear that homosexual couples may adopt children. In western X, however, all the lawyers find that possibility morally repugnant and refuse to assist. A couple without the means and sophistication to either import a lawyer or arrange assistance from a distant city, may well find it practically impossible to adopt, despite the fact that the conduct is perfectly lawful. The lawyers in western X will have, in effect, made their own law.

For this reason (among others) I have argued in the past that it is morally justifiable for the lawyer to provide "amoral" access to the law. Where there is a gap between what is lawful and what is moral or just, it is up to the client and not the lawyer to decide how the client will act. (Later, if the opportunity presents itself, I'll talk a little more about what the lawyer can do with the client in regard to that gap.)

There are at least two important caveats or exceptions that might well apply here. First, if the lawyer can't do the work effectively because she is so morally put off, then she ought not attempt it. The function of the lawyer is to provide access. If the lawyer can't do that competently for reasons of finance, expertise, health, or morality, then the client has to find another lawyer (preferably with the assistance of the first lawyer). Second, if the first lawyer prefers not to do the work (for whatever reason) and another competent lawyer is available at very low or no transfer costs, then there is little harm in the first lawyer refusing to assist.

My view is that lawyers with a good legal education and an understanding of this ethical role can more often than not provide high quality legal service even to those whose conduct they find morally wrongful. They might be uncomfortable, but they can do the work. It might be better, as you argue, if the lawyer could really believe in the client's cause. In some circumstances that might be ideal. But often that ideal is either costly or impractical. And it might be that some moral friction—the lawyer and client as somewhat of a check upon one another—is better than complete agreement. But consideration of that possibility will have to await another post.

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Kruse: 3/29/05, 10:21 AM
I think you've hit on a very troubling aspect of lawyers' decisions not to represent clients on moral grounds: that some clients may be deprived of a lawyer altogether. I'm confident that our society is morally diverse enough that what appears morally repugnant to one lawyer will be morally acceptable to another. The question is how, logistically, we can get the clients to the lawyers who can best serve their needs?

One answer is to impose a professional obligation on every lawyer not to "lightly decline" representation, so that politically unpopular clients will be protected, with an exception for lawyers whose feelings of moral repugnance are so strong that they simply cannot set them aside. But what about the cases where the lawyer can technically apply the law in a way that benefits the client, but the lawyer still has strong moral objections to what the client wants to achieve?

We need to start thinking about these "moral conflict" situations from the point of view of the client who wants and deserves a lawyer with undivided loyalty. If it were a financial investment that impaired the lawyer's loyalty to a client, we would call it a conflict of interest and we wouldn't allow that lawyer to take the case. Even if we thought the lawyer could reasonably set aside the financial interest, we would require the lawyer to inform the client about the conflict and gain the client's consent.

When morality is at issue, our professional ethical standards treat the situation differently. We are more reluctant to allow lawyers off the hook for moral reasons alone, and we don't require lawyers to inform clients when the lawyer has moral objections, so that the clients can choose whether they want the lawyer to represent them.

The difference is that we have accepted a narrow technical view of what lawyers do. My fear is that lawyers who find their clients morally reprehensible will deal with their discomfort by defaulting to a technical view of their clients as "bundles of legal interests," in ways that overlook the human aspects of lawyering. When we view lawyers merely as legal technicians, we find that level of lawyering acceptable. And we give lawyers an excuse to follow their pocketbooks rather than their hearts when they choose which clients to represent.

I would like to see our professional standards encourage lawyers to find their niche in the law, representing clients for whom they can sincerely advocate. I think we do that, not by promoting the vision of the lawyer as detached legal technician, but by setting forth a vision of morally engaged lawyering against which to judge whether our profession is fulfilling its obligations to the public.

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Pepper: 3/30/05, 09:04 AM
I think most of us prefer dispassionate professionals. When we go to a doctor or lawyer we don't want them to be wrapped up in our problems as we are. We want the benefit of a calm and objective view on the situation. That's part of what we mean when we use the term "professional." Part of our problems with litigation may well stem from a tendency for litigators to lose this objectivity, to become too embroiled in the "us" versus "them" mentality, in the perception of battle. (Probably partly for this reason, corporations in high stakes matters sometimes have one firm to conduct the litigation while a quite separate firm conducts the settlement negotiations.)

Imagine a client who consults a lawyer concerning a debt they admit they owe, but still prefer not to pay. The client/debtor is significantly better off financially than the creditor. Assume that the law will not require the client to repay the debt for a technical reason—the statute of frauds or the statute of limitations. Under these circumstances it seems unjust, although lawful, for the client to refuse to pay the debt. Would it somehow be a good thing for this client to find a lawyer who believes it is morally correct for debtors to stiff their creditors? My preference is for a lawyer who would do two things. First, educate the client concerning their legal "right" not to repay the debt. Second, find a subtle and non-offensive way to indicate to the client that repaying the debt might be the right thing to do even though it is not required by the law.

When lawful conduct to be facilitated by the lawyer is also a moral wrong in the lawyer's eyes, I think it important for the lawyer to clarify to the client that the lawfulness of the conduct does not somehow make it right. Too often I think clients use the law or the lawyer as an excuse or justification to do the wrong thing: "My lawyer told me I don't have to repay that debt" or "My lawyer told me the law says I don't have to repay that money." I think it is a substantial part of the lawyer's ethical role to make sure the client takes moral responsibility rather than avoids it. Such conversations may be awkward and difficult, but I think it important for lawyers to attempt them and attempt to acquire the counseling (or diplomacy) skills necessary for the task.

Cause lawyering may be a very good thing in regard to some issues (including the homosexual adoption), but I don't think it is the appropriate paradigm for most day to day lawyering. The old ideal of lawyer independence seems a better model. Differences in moral perception and a humble willingness to converse concerning the morality of proposed conduct seem to be something we would want to encourage, not discourage.

Kruse: 3/30/05, 07:09 PM
I want to clarify what I mean by "morally engaged" lawyering, because it's different from what you call "cause lawyering," Steve. I agree that a lawyer's over-involvement in a client's case—what you describe as getting as personally wrapped up in the problem as the client is—poses a problem, and that's not what I intend to endorse. Both moral under-engagement and moral over-engagement can impair the lawyer's performance and can lead to conflicts of interest on moral grounds.

When a client comes to a lawyer for help, it's usually because the client feels wronged in some way, has been accused by someone else of wronging them, or wants protection from a threat of being wronged. As those of us who have watched a couple break up or listened to friends complain about each other, each side has a story to tell about who is at fault. And people are usually the protagonists in their own stories. The problems that clients present to their lawyers, unlike the problems that patients bring to doctors, are already laden with moral content.

Moral engagement, as I understand it, involves two aspects. First, to be morally engaged, the lawyer needs to be able to empathize with the client's perspective on the client's situation, including being able to understand the client's moral point of view of who was right or wrong. Second, the lawyer needs to be morally engaged in interpreting the law. The law is our society's way of expressing and implementing what we think is a just way to organize our common life. So the law, too, has moral content. Lawyers learn, in their professional education, how principles of justice and public policy weave the law together. They also learn that the law is subject to multiple interpretations that are consistent with competing understandings of policy and justice.

A morally engaged lawyer acts as an intermediary between the client's story and the law. To play their partisan role, lawyers try to find a fit between how the client feels wronged (or vindicated) and some version of justice that is consistent with the purposes and policies that tie the law together. Morally engaged lawyers also need to be able to explain to their clients the ways the law might fail to fully capture the client's perspective. And then the lawyer and the client need to strategize about how to pursue the client's objectives against the backdrop of the fabric of justice in the law.

I see you separating the legal and the moral, Steve, and saying that first the lawyer needs to talk about what the law allows and then talk about what morality requires. I see them as interconnected. When lawyers take a morally distant view of the law, they begin to interpret the law purely instrumentally. When lawyers take a morally distant view of their clients, the lawyers begin to treat their clients superficially as wanting only to maximize legal interests. That's when you get the kind of abdication of moral responsibility that you are concerned about.

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Pepper: 3/31/05, 12:53 PM
Kate, we may have reached a point where we agree on too much to accurately describe this exchange as a debate. I agree that there can be moral or political conflicts problematic enough to be treated just as we treat more ordinary financial conflicts: the lawyer should decline the representation or withdraw. The homosexual adoption may well be such a situation. Our disagreement here seems to be with how common that kind of situation is and whether it should form the basis for a general ethical approach to lawyering. My view is that the "reneging on the debt" situation is far more typical of lawyer/client moral tension and I have the sense that you agree with me on the right approach there: it's better to have a lawyer who will try to find a diplomatic way to have a moral conversation with the client than a lawyer who will withdraw and refer to one who see no problem with refusing to repay the justly owing debt.

Your view of lawyering is very conflict and litigation centered. A great deal of lawyers' work (I think most, but I'm not sure of my empirical data here) is more focused on putting things together: real estate and business transactions, wills and trusts, advise about wage and hour laws, or something else in the vast welter of legal regulation, and so on. There seems to be little need for some sort of moral unity between lawyer and client in most of this and, as I suggested, some degree of moral friction may well be a good thing. The conservative Republican lawyer would seem quite capable of advising and representing the liberal Democratic land developer. And if the lawyer is concerned that the developer is being too rapacious in regard to some environmental matter or lease term, a conversation about that would seem better than finding a closer moral match between lawyer and client. I guess that means we have one clear disagreement: I don't think we should encourage lawyers generally to find a comfortable moral niche practice where they can fully or fundamentally identify with their clients. Enron and other recent corporate debacles bring a somewhat chilling image to mind in that regard.

We ought to be encouraging moral conversations, not discouraging them. There is a great deal of moral agreement among us as a society. We often disagree at the more abstract level of theory, dogma, or reasons, but we tend to agree on specific situations—people should not cause needless suffering, should pay their debts (as a general rule), should be generous and not greedy. If we were less embarrassed about discussing such matters and more open, we would be better off as a society. I discuss some of the difficulties and practicalities of this in this article.

You and I agree that lawyers should be morally engaged; we agree that lawyers should not "take a morally distant" view of either the law or their clients. But I don't think that requires moral identification or some kind of fundamental agreement. You correctly identify empathy as a key skill. The lawyer needs to empathize with the client and strive to see the world—and the client's story—as the client does. But the lawyer also needs to see that story—and the world—as others the client is working with (or against) do, and as those who administer the law are likely to see it. (That, of course, is subject to future influence by a skilled advocate conveying the situation as the client sees it.) The lawyer should be a buffer for the client, and that means seeing both views and helping the client see both views.

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Kruse: 4/1/05, 07:33 AM
It is possible that because of the legal work I've done, I am overly influenced by litigation, rather than transactional settings. But I think of all legal representation as having conflict at its core. In some legal representation, the client has come to the lawyer because a conflict has already heated up into a lawsuit. In others, the client just wants to get something done, and is encountering resistance that can be resolved through negotiation or mediation. Even in transactions, it seems that the lawyers' job is to anticipate the future conflicts that might arise, help the client avoid those conflicts, and take steps to protect the client's interests in the event that a conflict should arise in the future.

I agree with you, Steve, that not all conflicts are conflicts between sharply different moral perspectives. There are obviously varying levels of morality at stake in different kinds of disputes and even lawyers and clients with sharply different moral viewpoints can find common ground on issues that have nothing to do with their moral differences. Going back to your first post, that's part of the reason why I'm not concerned that having a moral conflict of interest standard is going to result in widespread inability of clients to find lawyers.

Although we ultimately agree on many of the things lawyers should and shouldn't be doing, I would frame the problem slightly differently. I don't think lawyers need find diplomatic ways to talk about morality with their clients, because it's simply not the lawyer's job to persuade the client to do what the lawyer thinks is morally right. Lawyers do need to find nuanced ways to talk about the law. There is moral content both in the law and in legal practice, and if lawyers and clients are talking about the law in the right way, that moral content will emerge as a part of figuring out all the client's options. Lawyers need to stop avoiding that moral content and treating it as optional. Having the right level of moral agreement between the lawyer and the client is an important way of promoting nuanced discussions that include morality where it belongs, without the representation devolving into either a moral crusade or a moral lecture.

Pepper: 4/1/05, 06:12 PM
Two disagreements.

First. In my view law is at least as much about cooperation as it is about conflict. Misunderstanding about that is at the root of much of the negative image of lawyers. At the beginning the Legal Profession course I teach, I discuss that bad repute with my students. I then suggest imagining oneself in a typical large supermarket looking at the vast bounty and variety available, much of it from different countries and continents. How did all of this get here? Through a vast welter of contracts (the work of lawyers) and a vast aggregation of corporations and other business entities (again, the creation of lawyers). Or imagine any large construction project, a skyscraper or multi-block urban renewal project for examples. That huge, very concrete construction comes into being only through a multitude of corporate entities and a much larger number of often-complicated contracts—the work of lawyers. Law allows for the reliable structuring of cooperation (both large and small) among large numbers of persons over long periods of time. The shadow of conflict is part of the lawyer's work in all this, but only part.

Second. You and I agree that there is frequently a gap between law and morality. Many of the contractual provisions that bring those groceries across oceans and into our aisles or that enable that building project may be exploitative, unfair, or unjust. When the client's conduct falls in that gap—is lawful but arguably immoral—lawyers ought not ignore or elide the fact that they may well be facilitating wrongful conduct. Confining one's counseling to the law only (as in the debt example or an exploitative but clearly lawful contract provision) often will not bring out the moral difficulty; to the contrary it often buries it under a legal fašade. I don't think it's "the lawyer's job to persuade the client to do what the lawyer thinks is morally right." I do think it ought to be part of the lawyer's job to try to get the client to see that the conduct may well be morally problematic and to get the client to take moral responsibility for it—not to blame it on the law or the lawyer or nobody. Sometimes the client may be persuaded by the lawyer's perspective or suggestion (she may choose to repay the debt or revise the contract provision). Sometimes not: the lawyer may have to defend against the debt (and thus arguably work an injustice through the law) or may get fired, or, if her feelings are strong enough, refuse to assist. I do think we would be better off as a society if we could find ways to make this kind of conversation more common and less uncomfortable.

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