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«Articles LAWYERS AS PROFESSIONALS: SOME MORAL ISSUES RICHARD WASSERSTROM* In this paper I examine two moral criticisms of lawyers which, if ...»

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Copyright 1975© by the American Bar Association. Reprinted with permission. This

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Articles

LAWYERS AS PROFESSIONALS:

SOME MORAL ISSUES

RICHARD WASSERSTROM*

In this paper I examine two moral criticisms of lawyers which, if well-founded, are fundamental. Neither is new but each appears to apply with particular force today. Both tend to be made by those not in the mainstream of the legal profession and to be rejected by those who are in it. Both in some sense concern the lawyer-client relationship.

The first criticism centers around the lawyer's stance toward the world at large. The accusation is that the lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral in his or her dealings with the rest of mankind.

The second criticism focuses upon the relationship between the lawyer and the client. Here the charge is that it is the lawyer-client relationship which is morally objectionable because it is a relationship in which the lawyer dominates and in which the lawyer typically, and perhaps inevitably, treats the client in both an impersonal and a paternalistic fashion.

To a considerable degree these two criticisms of lawyers derive, I believe, from the fact that the lawyer is a professional. And to the extent to which this is the case, the more generic problems I will be exploring are those of professionalism generally. But in some respects, the lawyer's situation is different from that of other professionals. The lawyer is vulnerable to some moral criticism that does not as readily or as easily attach to any other professional.

And this, too, is an issue that I shall be examining.' * B.A. 1957, Amherst College; M.A. 1958, Ph.D. 1960, University of Michigan; LL.B. 1960, Stanford. Professor of Law and Professor of Philosophy, University of California School of Law, Los Angeles. This article is a revised version of a lecture given at Amherst College in 1974 as a part of the Copeland Colloquium series on morality and the professions.

I Because of the significance. for my analysis of the closely related concepts of a profession and a professional, it will be helpful to indicate at the outset what I take to be the central features of a profession.

But first there is an ambiguity that must be noted so that it can be dismissed.

There is one sense of "professional" and hence of "profession" with which I am not concerned. That is the sense in which there are in our culture, professional [Vol. 5

HUMAN RIGHTS

Although I am undecided about the ultimate merits of either criticism, I am convinced that each is deserving of careful articulation and assessment, and that each contains insights that deserve more acknowledgment than they often receive. My ambition is, therefore, more to exhibit the relevant considerations and to stimulate additional reflection, than it is to provide any very definite conclusions.

I.

As I have indicated, the first issue I propose to examine concerns the ways the professional-client relationship affects the professional's stance toward the world at large. The primary question that is presented is whether there is adequate justification for the kind of moral universe that comes to be inhabited by the lawyer as he or she goes through professional life. For at best the lawyer's world is a simplified moral world; often it is an amoral one; and more than occasionally, perhaps, an overtly immoral one.

To many persons, Watergate was simply a recent and dramatic athletes, professional actors, and professional beauticians. In this sense, a person who possesses sufficient skill to engage in an activity for money and who elects to do so is a professional rather than, say, an amateur or a volunteer. This is, as I have said, not the sense of "profession" in which I am interested.

I am interested, instead, in the characteristics of professions such as law, or medicine. There are, I think, at least six that are worth noting.

(1) The professions require a substantial period of formal education-at least as much if not more than that required by any other occupation.

(2) The professions require the comprehension of a substantial amount of theoretical knowledge and the utilization of a substantial amount of intellectual ability. Neither manual nor creative ability is typically demanded. This is one thing that distinguishes the professions both from highly skilled crafts-like glassblowing-and from the arts.

(3) The professions are both an economic monopoly and largely self-regulating. Not only is the practice of the profession restricted to those who are certified as possessing the requisite competencies, but the questions of what competencies are required and who possesses them are questions that are left to the members of the profession to decide for themselves.

(4) The professions are clearly among the occupations that possess the greatest social prestige in the society. They also typically provide a degree of material affluence substantially greater than that enjoyed by most working persons.





(5) The professions are almost always involved with matters which from time to time are among the greatest personal concerns that humans have: physical health, psychic well-being, liberty, and the like. As a result, persons who seek the services of a professional are often in a state of appreciable concern, if not vulnerability, when they do so.

(6) The professions almost always involve at their core a significant interpersonal relationship between the professional, on the one hand, and the person who is thought to require the professional's services: the patient or the client.

LA WYERS AS PROFESSIONALS

illustration of this fact. When John Dean testified before the Select Senate Committee inquiring into the Watergate affair in the Spring of 1973, he was asked about one of the documents that he had provided to the Committee. The document was a piece of paper which contained a list of a number of the persons who had been involved in the cover-up. Next to a number of the names an asterisk appeared. What, Dean was asked, was the meaning of the asterisk?

Did it signify membership in some further conspiracy? Did it mark off those who were decision makers from those who were not?

There did not seem to be any obvious pattern: Ehrlichman was starred, but Haldeman was not; Mitchell was starred, but Magruder was not. Oh, Dean answered, the asterisk really didn't mean anything. One day when he had been looking at the list of participants, he had been struck by the fact that so many of them were lawyers.

So, he marked the name of each lawyer with an asterisk to see just how many there were. He had wondered, he told the Committee, when he saw that so many were attorneys, whether that had had anything to do with it; whether there was some reason why lawyers might have been more inclined than other persons to have been so willing to do the things that were done in respect to Watergate and the cover-up. But he had not pursued the matter; he had merely mused about it one afternoon.

It is, I think, at least a plausible hypothesis that the predominance of lawyers was not accidental-that the fact that they were lawyers made it easier rather than harder for them both to look at things the way they did and to do the things that were done. The theory that I want to examine in support of this hypothesis connects this activity with a feature of the lawyer's professionalism.

As I have already noted, one central feature of the professions in general and of law in particular is that there is a special, complicated relationship between the professional, and the client or patient. For each of the parties in this relationship, but especially for the professional, the behavior that is involved is to a very significant degree, what I call, role-differentiated behavior. And this is significant because it is the nature of role-differentiated behavior that it 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. Some illustrations will HUMAN RIGHTS [Vol. 5 help to make clear what I mean both by role-differentiated behavior and by the way role-differentiated behavior often alters, if not eliminates, the significance of those moral considerations that would obtain, were it not for the presence of the role.

Being a parent is, in probably every human culture, to be involved in role-differentiated behavior. In our own culture, and once again in most, if not all, human cultures, as a parent one is entitled, if not obligated, to prefer the interests of one's own children over those of children generally. That is to say, it is regarded as appropriate for a parent to allocate excessive goods to his or her own children, even though other children may have substantially more pressing and genuine needs for these same items. 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.

A similar situation is presented by the case of the scientist. For a number of years there has been debate and controversy within the scientific community over the question of whether scientists should participate in the development and elaboration of atomic theory, especially as those theoretical advances could then be translated into development of atomic weapons that would become a part of the arsenal of existing nation states. The dominant view, although it was not the unanimous one, in the scientific community was that the role of the scientist was to expand the limits of human knowledge. Atomic power was a force which had previously not been utilizable by human beings. The job of the scientist was, among other things, to develop ways and means by which that could now be done. And it was simply no part of one's role as a scientist to forego inquiry, or divert one's scientific explorations because of the fact that the fruits of the investigation could be or would be put to improper, immoral, or even catastrophic uses.

The moral issues conceming, whether and when to develop and use nuclear weapons were to be decided by others; by citizens and

LA WYERS AS PROFESSIONALS

1975] statesmen; they were not the concern of the scientist qua scientist.

In both of these cases it is, of course, conceivable that plausible and even thoroughly convincing arguments exist for the desirability of the role-differentiated behavior and its attendant neglect of what would otherwise be morally relevant considerations. Nonetheless, it is, I believe, also the case that the burden of proof, so to speak, is always upon the proponent of the desirability of this kind of role-differentiated behavior. For in the absence of special reasons why parents ought to prefer the interests of their children over those of children in general, the moral point of view surely requires that the claims and needs of all children receive equal consideration. But we take the rightness of parental preference so for granted, that we often neglect, I think, the fact that it is anything but selfevidently morally appropriate. My own view, for example, is that careful reflection shows that the degree of parental preference systematically encouraged in our own culture is far too extensive to be morally justified.



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