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Meaningful Client Participation: An Essay Toward a Moral Understanding of the Practice of Law
Published online by Cambridge University Press: 24 April 2015
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This paper arises out of my experiences as a clinical law professor at Mercer University School of Law. From 1978, to 1983, in a course entitled “The Lawyering Process,” I tried to teach law students what it meant to be a good lawyer and how to be one using a wide variety of teaching methods. I designed the first semester of the course as a classroom study of models of various lawyering tasks, including interviewing, investigating, counseling, and negotiation. During the second semester, students tried the models in practice under the joint supervision of a local attorney and me. We met weekly in seminars and individual conferences to discuss the relative merits of the models and their effectiveness in practice.
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- Copyright © Center for the Study of Law and Religion at Emory University 1988
References
1. See Cort, & Sammons, , The Search for Good Lawyering: A Concept and Model of Lawyering Competencies, 29 Clev. St. L. Rev. 397 (1980)Google Scholar; Sammons, , Remarks of Jack L. Sammons, A.A.L.C. Clinical Legal Education Panel: Evaluation and Assessment of Student Performance in a Clinical Setting, 29 Clev. St. L. Rev. 603 (1980)Google Scholar.
2. Bronowski, J., The Origins of Knowledge and Imagination 88 (1978)Google Scholar; see infra text at notes 46-48.
3. For a general description of these conceptions, see Bellow, G. and Moulton, B., The Lawyering Process: Materials for Clinical Instruction in Advocacy 57–66 (1978)Google Scholar [hereinafter G. Bellow and B. Moulton].
4. There is a form of the adversarial system conception that could be interpreted as independent of the products of the adversarial system. In this form, the adversarial system is justified because there is human dignity in its processes whether or not truth, justice, or the protection of individual rights are produced by those processes. Monroe H. Freedman seems to be saying this at times, (Freedman, M., Lawyers' Ethics in an Adversary System (1975)Google Scholar) and Alan Donagan says that “stripped of their consequential gilding” other forms of the adversarial system justification are reducible to this. Donagan, , Justifying Legal Practice in the Adversary System, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 128 (Luban, D. ed. 1983)Google Scholar. Donagan notes that this form of justification is limited by those instances in which the product of the system is a denial of human dignity. Id. at 133.
This form of the justification can be subject to the same criticism I make of the others, that is, it does not tell us enough. If we are to look at the human dignity in the processes of the adversarial system then surely we must start with the relationship between the lawyer and the client. If that relationship interrupts the human dignity of the processes, then those processes were not about human dignity at all, but were really about the protection of certain individual rights which are themselves grounded in human dignity. If so, we are back at the usual justification of the protection of individual rights. For there to be real human dignity in the processes, real humans must participate in them and the relationship between the lawyer and the client has to be described in those terms before one can go further.
This problem arose in Professor Freedman's work. Freedman, M., Lawyers' Ethics in an Adversary System 46–47 (1975)Google Scholar. He wanted to justify the system in terms of human dignity, but when he looked at the system as a whole he relied on a utilitarian justification. See, Donagan, , Justifying Legal Practice in the Adversary System, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 147 (Luban, D. ed. 1983)Google Scholar. In a later article, prompted by a challenge from Professor Noonan, Professor Freedman, analyzed the lawyer-client relationship in terms of human dignity and grounded his justification of lawyering in the “effective exercise of individual autonomy” which is essential to dignity. Freedman, , Personal Responsibility in a Professional System, 27 Cath. U.L. Rev. 191, 204 (1978)Google Scholar. In a recent speech, Professor Freedman offered the following as a description of the obligations of lawyers as professionals:
The lawyer helps members of the public to be aware of legal rights and the availability of legal services to enforce those rights, counsels on legal rights and moral obligations, and uses all lawful means to protect and advance clients' legal and moral interests as clients perceive them to be.” Professor Monroe Freedman, Aba National Conference on Professionalism, Denver, Colorado, June 25, 1987.
It is in the difference between “protect and advance … legal and moral interests” and “meaningful participation” that my conception departs from that of Professor Freedman, and I believe that difference reflects different understandings of what is meant by “autonomy.”
5. Bronowski, J., A Sense of the Future 211–62 (1977)Google Scholar.
6. See, Shaffer, , Legal Ethics and the Good Client, 36 Cath. L. Rev. 319 (1987)Google Scholar.
7. See generally Freedman, , Legal Ethics and The Suffering Client, 36 Cath. L. Rev. 331 (1987)Google Scholar; Freedman, , Lawyer-Client Confidences Under The Aba Model Rules: Ethical Rules Without Ethical Reason, 3 Criminal Justice Ethics 3 (1984)CrossRefGoogle Scholar; Freedman, , The Guilty Plea Problem, 10 Soc. Resp. 37 (1984)Google Scholar; Freedman, , Symposium Proceeding, Legal Ethics: Ideas in Conflict, 26 Vill. L. Rev. 1197 (1981)Google Scholar; Freedman, , Symposium Proceeding, Professional Responsibility and The Model Rules of Professional Conduct, 35 U. of Miami L Rev. 639 (1981)Google Scholar; Freedman, , Personal Responsibility in a Professional System, 27 Cath. L. Rev. 191 (1978)Google Scholar; Freedman, , Lawyer Ethics in an Adversary System (1975)Google Scholar; Freedman, , Are There Public Interest Limits on Lawyers' Advocacy?, Soc. Resp. 31 (Wash. & Lee 1975)Google Scholar. Freedman, , Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Ouestions, 64 Mich. L. Rev. 1469 (1966)CrossRefGoogle Scholar.
8. See generally Shaffer, , The Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 963 (1987)Google Scholar; Shaffer, , Legal Ethics and The Good Client, 36 Cath. L. Rev. 319 (1987)Google Scholar; Shaffer, , The Ethics of Dissent and Friendship in the American Professions, 88 W. Va. L. Rev. 623 (1986)Google Scholar; Shaffer, T., American Legal Ethics: Text, Readings and Discussion Topic 3–160 (1985)Google Scholar; Shaffer, , The Gentleman in Professional Ethics, 10 Queens L.J. 1 (1984)Google Scholar; Shaffer, , The Legal Ethics of The Two Kingdoms, 17 Vol. L. Rev. 3 (1983)Google Scholar; Shaffer, T., On Being a Christian and a Lawyer (1982)Google Scholar; Shaffer, , Christian Lawyer Stories and American Legal Ethics, 33 Mercer L. Rev. 877 (1982)Google Scholar; Shaffer, , The Moral Theology of Atticus Finch, 42 U. Pitt. L. Rev. 181 (1981)Google Scholar; Shaffer, Advocacy as Moral Discourse, 57 N.C.L. Rev. 647 (1979)Google Scholar [hereinafter Shaffer, Moral Discourse]; Shaffer, , Christian Theories of Professional Responsibility, 48 S. Cal. L. Rev. 721 (1975)Google Scholar.
9. Id. See, also, Fried, , The Lawyer as Friend: The Moral Foundation of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1970)CrossRefGoogle Scholar. Prof. Donagan says that the analogy to friendship is not necessary to Prof. Fried's justification. Donagan, supra note 10, at 128. I believe that he is wrong. About half-way through the article Professor Fried does tell us that: “When I say the lawyer is his client's legal friend, I mean the lawyer makes his client's interest his own insofar as this is necessary to preserve and foster the client's autonomy within the law.” Id. at 1073. Professor Donagan would have Professor Fried stop there. Professor Fried, however, is concerned with the lawyer's role of doing this for some and not for others. He wants to respond to the utilitarian arguments that the lawyer “wastes scarce resources” and harms his client's “identified adversary.” Id. at 1061, 1062. He could respond to that with other social interests, but he eschews these in favor of viewing the relationship as inherently good. “The relation itself is not a creature of social expediency …; it is the creature of moral right. …” Id. at 1077.
Professor Fried's argument is inadequate to serve as a complete conception of the practice because it never bridges the gap between individual interest and social interest. In addition, with its basic premise that the lawyer preserves autonomy by helping the client to discover the boundaries of the law, it ignores much of what lawyers do and of what autonomy can mean. In fact, it is fair to compare this part of Fried's conception with Simon's description of a positivist conception of the lawyer as one who only predicts the actions of the sovereign. Simon, , The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wise. L. Rev. 29, 41Google Scholar.
10. For an example, see Shaffer, , The Ethics of Dissent and Friendship in the American Professions, 88 W. Va. L. Rev. 623 (1986)Google Scholar.
11. Supra, note 10.
12. Understanding lawyering as a practice within a narrative is an application of MacIntyre, A., After Virtue (2d. ed. 1984)Google Scholar.
13. MacIntyre, A., After Virtue 187–91 (2d ed. 1984)Google Scholar. The example MacIntyre uses to explain “internal goods” is:
Consider the example of a highly intelligent seven-year-old child whom I wish to teach to play chess, although the child has no particular desire to learn the game. The child does however have a very strong desire for candy and little chance of obtaining it. I therefore tell the child that if the child will play chess with me once a week I will give the child 50 cents worth of candy; moreover I tell the child that I will always play in such a way that it will be difficult, but not impossible, for the child to win and that, if the child wins, the child will receive an extra 50 cents worth of candy. Thus motivated the child plays and plays to win. Notice however that, so long as it is the candy alone which provides the child with a good reason for playing chess, the child has no reason not to cheat and every reason to cheat, provided he or she can do so successfully. But, so we may hope, there will come a time when the child will find in those goods specific to chess, in the achievement of a certain highly particular kind of analytical skill, strategic imagination and competitive intensity, a new set of reasons, reasons now not just for winning on a particular occasion, but for trying to excel in whatever way the game of chess demands. Now if the child cheats, he or she will be defeating not me, but himself or herself.
There are thus two kinds of good possibly to be gained by playing chess. On the other hand there are those goods externally and contingently attached to chess-playing and to other practices by the accidents of social circumstance—in the case of the imaginary child candy, in the case of real adults such goods are prestige, status and money. There are always alternative ways for achieving such goods, and their achievement is never to be had only by engaging in some particular kind of practice. On the other hand there are the goods internal to the practice of chess which cannot be had in any way but by playing chess or some other game of that specific kind. We call them internal for two reasons: first, as I have already suggested, because we can only specify them in terms of chess or some other game of that specific kind and by means of examples from such games (otherwise the meagerness of our vocabulary for speaking of such goods forces us into such devices as my own resort to writing of ‘certain highly particular kind of); and secondly because they can only be identified and recognized by the experience of participating in the practice in question. Those who lack the relevant experience are incompetent thereby as judges of internal goods. Id. at 188-89.
14. A. MacIntyre, supra note 7, at 189.
15. Schwartz, , The Zeal of the Civil Advocate, in The Good Lawyer; Lawyers' Roles and Lawyers' Ethics 150 (Luban, D. ed. 1983)Google Scholar. This idea was first expressed by Prof.Schwartz, in Schwartz, , Professionalism and Accountability, 66 Cal. L. Rev. 669, 673 (1978)CrossRefGoogle Scholar.
16. It ignores the coercive aspects of the system. See, Raz, J., The Concept of a Legal System 3 (1980)CrossRefGoogle Scholar.
17. The people who go to lawyers do not always, or even most often, go to lawyers as individuals acting alone. We go to lawyers as individuals acting collectively when we are represented by our district attorneys or our other government lawyers. I view representation of corporations in the same way, i.e., as representing individuals acting as a “we”.
18. Shaffer makes a similar point: “When advocacy argues from the person of its client, rather than from his interests or his cause, it can take account of his vulnerability.” Shaffer, Moral Discourse, supra note 12, at 160.
19. The person seeking participation is also Janus-faced looking inward and looking outward—and he or she behaves partly as a whole or wholly as a part according to the way in which you look at him or her.
[Man] is a holon. A Janus-faced entity, who, looking inward, sees himself as a self-contained unique whole, looking outward as a dependent part. His ‘self-assertive tendency’ is the dynamic manifestation of his unique ‘wholeness’, his autonomy and independence as a holon. Its equally universal antagonist, the ‘integrative tendency’, expresses his dependence on the larger whole to which he belongs; his ‘part-ness’.
Koestler, , The Ghost in the Machine, in Law, Language, and Ethics: an Introduction to Law and Legal Method 845 (Biskin, W. & Stone, C. eds. 1972)Google Scholar. See also Lovinlock, , John Dewey's Philosophy of Value 98–123 (1972)Google Scholar for an analysis of Dewey's similar conception of man in society and society in man; and, Johnstone, , Dewey, Ethics, and Rhetoric: Towards a Contemporary Conception of Practical Wisdom, 16 Phil, and Rhetoric 185, 190–192 (1983)Google Scholar. “When we attempt to remake the world in ways that will institute our values, we remake ourselves.” Id. at 190 (citing, Dewey, J., Theory of the Moral Life 172 (1960)Google Scholar).
Because the person is this looking inward and outward, the inward-looking part of meaningful participation is not a looking inward towards “self-assertive tendency” (Koestler, supra, at 845) or towards “integrative tendency” (Id.), it is a looking inward at the “holon” (Id.), which is the person.
20. This position is in direct opposition to those who would view any lawyer involvement in what I am calling the inward-looking part of client participation as the manipulation of client purposes by the lawyer. The instrumentalist view of the lawyer, that is, the lawyer as an instrument of client purposes, fails by assuming that client purposes are fixed entities which are determined forever before the client contacts the lawyer. See Lehman, , The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078, 1079–81 (1979)CrossRefGoogle Scholar. This assumption, I argue, denies the possibility of meaningful participation.
There is, of course, no doubt that the interaction of the client with the lawyer shapes the values of the client in some way just as the involvement in the dispute will shape those values. To shape values is not necessarily to distort them. Lawyers shape client values both as people and as lawyers. As lawyers, they shape client values by offering to clients a particular approach to dispute resolution.
21. Aba Model Code of Professional Responsibility Canon 7 (1979); Aba Model Code of.Professional Responsibility Ec 7-1 (1979); Aba Model Code of Professional Responsibility Dr 7-101 (1979).
22. Aba Model Code of Professional Responsibility Ec 7-9 (1979).
23. Webster's New World Dictionary 1206 (2d ed. 1980)Google Scholar.
24. Id.
25. See, e.g., Cal. Civ. Code 4600(b) (West 1983); Mich. Comp. Laws Ann. § 722.23 (West 1985); S.D. Codified Laws Ann. § 30-27-19 (1984); Tex. Fam. Code Ann. § 14.07 (Vernon 1975); see, e.g., In re Marriage of Stoker, 65 Cal. 3d 878, 135 Cal. Rptr. 616 (1977); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963); Williamson v. Williamson, 122 Mich. App. 667, 333 N.W.2d 6 (1982); Smith v. Smith, 200 S.W. 1129 (Tex. Civ. App. 1918); See also Goldstein, J., Freud, A., & Solnit, A.J., Beyond the Best Interest of the Child (1973)Google Scholar.
26. Simon, , The Ideology of Advocacy: Professional Ethics and Professional Ethics, 1978 Wis. L. Rev. 29, 53Google Scholar.
27. ‘In the best interest’ implies all the issues Fried found in the theory of the relationship of means to ends that produced hedonism.
These issues are: First of all, it is assumed that ends as such (indeed, the single end) cannot be the subject of analysis. The end or value appears as a simple, primitive, unanalyzable term in the theory. Second is the assumption that the consideration of value (or the end or ends) must therefore be limited either to the analysis of the means by which the end is attained, or perhaps to the physiological-neurological substratum of the end state, where the theory admits of this. Third, it is assumed that therefore all activity and striving can only have an instrumental value in relation to the valued end state. No activity or striving can have intrinsic value, since its sole value inheres in the contingent fact that it is in fact productive of the single valued end state. Fourth, there is entailed a characteristic approach to the complexity of elements in ordinary pursuits and goals: eating, sex, listening to music, solving a problem. This complexity is interesting only insofar as it is the case that such and such a combination and arrangement of elements is likely to be productive of the valued end state. Fifth, there is also a characteristic approach to time and change. Since the valued end state (or states) are unanalyzable simples, they are not subject to change, and their deployment in time is only a matter of temporal location or of quantity as located in time. Finally, there is a characteristic conception of reason, for reason can only make us more successful in attaining the simple end state. Since the end state is simple and unanalyzable, reason can tell us nothing about it, only how to attain it.
Fried, C., An Anatomy of Values: Problems of Personal and Social Choice 9 (1970)CrossRefGoogle Scholar.
A complete description of lawyering should include Mr. Fried's view that: [A]t least some ends and values have a structure; that this is a structure of an ordered complexity of elements which constitutes the end or value; that these elements are sometimes deployed in time, so that the end is a structure of elements arranged in a particular way over time; and that not only does reason have a special role in revealing these structures but that in certain cases the structure is consciously rational. It is because of this notion of some ends as structured that I believe that it makes sense to speak of an analysis of ends as such, and to assert that such an analysis can make more perspicuous to a person having such an end what it is to have that end, hold that value. It is because of this view that it becomes possible to think clearly of activities as sometimes being ends in themselves, for these activities can be conceived of as a structured complex of elements constituting an end. And it is because we can see how activities and other complex structures are ends in themselves that we are brought to see that there is a multiplicity of ultimate ends, things valued for their own sakes, and not just as instruments to the attainment of some other end. Id. at 10.
28. “Other” refers specifically to other parties to the dispute or someone empowered to resolve the dispute.
29. Under this description, the law is, in a very rough sense, the strongest evidence of an existing norm which governs the disputes and which will be acceptable to one empowered to resolve it. I am defining legal norms in this context as those which can be coercively enforced.
The possibility of coercive enforcement is one factor which shapes any other norm offered by the lawyer and the client. For example, any norm offered in negotiations is, in part, shaped by the potential of coercive enforcement of the legal norm, but the norm offered in negotiations may be very different than the legal norm. It may be much better described as a particularized version of a customary norm such as reciprocity. It is that customary norm which is offered (implicitly or explicitly) by the lawyer and client for acceptance by the other party in negotiations.
What I have said here can be generalized. This search for acceptable norms is not just a product of the social regulation of disputes, but it is essential to all rational discussion of disputes. The search for acceptable norms holds those conversations together. See infra, note 42.
30. See Galanter, , Reading the Landscape of Disputes: What We Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 U.C.L.A. L. Rev. 4 (1983)Google Scholar.
31. Those norms are arrived at and accepted against a backdrop that includes the possibility of the coercive enforcement of legal norms. Legal norms, however, are only part of the backdrop, and the legal norms that are in the backdrop of privately resolved disputes are versions shaped by the lawyer and the client. These may be quite different from the authoritative versions when, and if, those versions are expressed. See Simon, , Homo Psychologicus: Notes on a New Legal Formalism, 32 Stan. L. Rev. 487 (1980)CrossRefGoogle Scholar, describing the “sociologist vision” that: “[L]aw is not exhaustively and precisely fixed by the State; it is continually constituted and reconstituted by lawyers and clients themselves as they create patterns of interaction…” Id. at 499.
I am not talking about differences between authoritative versions of legal norms and versions which appear in the law office because lawyers ignore the law. In negotiations, for example, I agree with Condlin that avoidance of the law in negotiation can produce stylized settlements to be imposed upon clients. This is the opposite of participation. See Condlin, , Cases on Both Sides: Patterns of Arqument in Legal Dispute-Negotiation, 44 Mo. L. Rev. 65 (1985)Google Scholar. In addition, for me, meaningful participation requires, in its outward looking part, full consideration of legal norms as an expression of society's definition of the person in this dispute.
32. Correspondence of values and outcomes cannot be equated with meaningful participation because one cannot “fix” the values of the client for comparison without losing the person of the client. The values are as much determined by the disputes—the dependent part—as they are by the client—the whole. It is this holon nature (Koestler, supra note 19, at 842-43) of the Client and the Janus-face of the participation (Id.) which makes it impossible to equate meaningful participation with a correspondence of values and outcomes. Something similar is true on the outcome side of the correspondence. Outcomes are products of processes and circumstances and you cannot distinguish the two well enough here in an analysis of outcomes to tell you very much about processes. Both of these problems are obvious in the question: “Did the client get what he wanted?”
33. Bronowski, J., The Origins of Knowledge and Imagination 58 (1978)Google Scholar.
34. Id.
35. Id. Bronowski uses this term as a criterion for preferring one axiomatic system to another. Id. Dewey applies a similar criterion to the understanding of conduct. See Johnstone, supra, note 19, at 192.
36. J. Bronowski, supra note 34, at 88.
37. See generally Binder and Price, Legal Interviewing and Counselling: A Client Centered Approach 137–147 (1977)Google Scholar.
38. The client considers the future self in all respects. That future self will be formed in part by the choices made now and the experiences which flow from them. For that reason, all of the choices have moral import, and “[t]he real moral question is what kind of self is being furthered and formed.” Dewey, J., Theory of the Moral Life 159 (1960)Google Scholar (cited in Johnstone, supra note 19, at 190). The matching of one's self to one's actions is a consequence to be explored. The lawyer asks: Is this who you are?
39. See Binder and Price, supra note 38, at 137-47.
40. See A. MacIntyre, supra note 7, at 187-91. The exploration of moral consequences is necessary for problem solving and decision making to satisfy the inward- and the outward-looking aspects of meaningful participation. This reflects nothing more than the social nature of morality.
41. In considering the form that participation will take, the lawyer and the client have to consider how the client's wants can be converted to shared norms. They must do this not merely because of the potential for a coercively enforced legal norm, but because it is essential to rational argument.
As Stoljar says:
So where A advances a grievance against B, as where A complains that he has been harmed by B, the grounds or reasons for that grievance have to be universalized to enable both sides to argue as equals, one with the other; for unless they so do they would not be sharing a reason or rule in respect of the harmful action; either side would simply give his (personal) reason, A for complaining as he does, B for his action, at best merely explaining why he did what he did. Both A and B, in other words, would not be giving a reason capable of justifying or excusing the complaint, they would instead be withholding the common reason or standard on the basis of which alone a rational argument can unfold. To argue together the two sides have so to depersonalize or universalize their reasons no only to ensure that neither side can make superior claims, but by the same token to lead them to argue about the ‘merits’ of the case.
This does not mean that the two sides are precluded from referring to their human or personal wants (or their individual desires or interests), if only because one's grievances very much derive from wants. What universalization does mean is that we cannot make claims except on the basis of these wants being also common or shared wants; the two sides cannot argue as equals unless they assume a mutual equality of at least certain wants or interests. This is not to suggest that men do have equal or identical wants, for plainly they do not. The point, rather, is that for A and B to argue as equals about wants, an initial (logical) requirement is that they must recognize as between each other the existence of similar kinds of wants (or desires or interests), that is, kinds of wants that may nevertheless allow for some differences of degree. If either A or B could advance his purely personal or idiosyncratic wishes or wants as a reason, or if (what comes to the same thing) either could say that his wants are ‘special’ or ‘exceptional’, then they would be unable even to start an argument, moral reasoning between them would never get off the ground. This is so even where A and B are arguing about what appear like very special or very personal interests or wants; because here, too, they will need to argue in terms of a kind or class or claims, however much the particular claim may constitute one member of a class. For a one-member class must be sharply differentiated from the so-called unique situations so dear to existentialists; a unique situation by its very nature excludes comparable instances and thus excludes rules, whereas a one-member class does not exclude comparable instances: the one member of the class is fortuitously but not necessarily unique.
Stoljar, S., Moral and Legal Reasoning 49–50 (1980)CrossRefGoogle Scholar.
Condlin makes a similar point: “[W]hether described as rights, claims, interests, rules, principles, tradition or whatever, parties to a dispute must share a set of authoritative background norms, no matter how rudimentary or limited, for principled conversation about differences to be possible.” Condlin, , Cases on Both Sides: Patterns of Argument in Legal Dispute-Negotiation, 44 Mo. L. Rev. 65, 83 note 39 (1985)Google Scholar (citing Flathman, R., The Practice of Political Authority (1982)Google Scholar).
Lawyer and client are searching together for the available means of persuasion and, in doing so, they look for premises which the person or persons to be persuaded can accept. See Young, , Beyond Bok: Historical Jurisprudence in Replacement of the Enlightenment Project, 35 J. Legal Educ. 333 (1985)Google Scholar; “The skills important to deliberation, to the selection of alternative courses of conduct, are found in rhetoric, the discovery in the particular case of the available means of persuasion.” Id. at 348.
42. By taking the role of the other, the lawyer asserts human equality. The lawyer also asserts equality in the form of the arguments the participation will take. As Stoljar says, with a narrower view of social norms:
Going a step further, we may say that merely by dint of arguing about equal kinds of wants, A and B are led to recognize equal rights between themselves. For an important feature of the word ‘right’ is that it refers to precisely such common and equally claimable wants, wants that are thus attuned to a standard as well as incorporated in a rule. Unless wants are standardized [sic] we could not even know, when one person says he has a right against another, in respect of what interchangeable wants a rule is claimed; and unless the right is part of a rule, there would be no claim or demand even suggesting that we must somehow give effect to that right. A right, it may now become clearer, is then not just a claim or demand, it is (as some legal theorists have at least partly seen) more in the nature of a ‘protected interest’ that is, the interest is based on a kind or class of wants or interests which, in principle, anyone may claim, while the protection comes from the demand being backed by a heteronomous rule either of a moral sort or one that, by acquiring a coercive dimension, turns into a legal rule.
Stoljar, supra note 42, at 51.
In asking the client to think of the dispute as others will, in implying an equality, and in generalizing arguments to a social norm which does not “respect persons,” the lawyer gives the client a certain distance from the dispute which can prompt creative solution and which can be the distance needed to recognize the dispute as a moral event. In my description, the moral nature of the dispute is, of course, one of the connections needed for problem solving and decision making. Recognition of a dispute as a moral event is particularly hard to come by when the social norms, and particularly the legal rules, permit moral injustices.
43. The lawyer's processes implicitly recognize that the interests of others are inextricably bound with the client's.
44. Fried, supra note 27, at 10.
45. See Arendt, H., The Life of the Mind 185 (1978)Google Scholar, describing this question as the basic Socratic question. Id.
46. For legal reasoning's use of analogy as a tool for managing complexity, see Fried, , The Artificial Reasoning of the Law or What Lawyers Know, 60 Tex. L. Rev. 35, 57 (1981)Google Scholar. Rules are also tools for managing complexity. Hayek tells us that rules are needed because of our ignorance of circumstances. 2 Hayek, F.A., Law, Legislation and Liberty 8–11 (1976)Google Scholar. It is true that we need rules to deal with what we will not know. But we also need them to deal with the complexity of what we will know.
47. See generally G. Bellow and B. Moulton, supra note 3, at 998-1017.
48. Bronowski, supra note 34.
49. The traditional justification of confidentiality is that the disclosure of confidential information by the lawyers will “chill” the flow of information from the client to the lawyer and that the resulting harm to the adversarial system outweighs other social effects, at least in the long run. Rhodes, , Ethical Perspectives on Legal Practice, 37 Stan. L. Rev. 589, 613 (1985)Google Scholar; Burt, , Conflict and Trust Between Attorney and Client, 69 Geo. L.J. 1015 (1981)Google Scholar; Landesman, , Confidentiality and the Lawyer-Client Relationship, 1980 Utah L. Rev, 765Google Scholar; Noonan, , The Purposes of Advocacy and the Limits of Confidentiality, 64 Mich. L. Rev. 1485 (1966)CrossRefGoogle Scholar. The justification I offer does not share the consequentialist nature of the traditional justification.
50. Schön, , The Reflective Practitioner: How Professionals Think in Action 23 (1983)Google Scholar. The example Schön gives for law is “success in litigation.” Schön does not elaborate on this description. When he uses the phrase “unambiguous ends” I believe he means ends which are defined by the profession. Terrence Johnson uses this “self-defined ends” characteristic as a way of distinguishing professional jobs. He defines professional jobs as those of producers who define both the needs of the consumer and how those needs should be met.” Johnson, T., Professions and Power (1972)Google Scholar, cited in Cain, , The General Practice Lawyer and The Client: Towards a Radical Conception, in Dingwall and Lewis, The Sociology of the Professions 106, 107–108 (1984)Google Scholar. It is exactly this aspect of control over the producer-consumer relationship and the discipline it provides that Schön would have us abandon. Id.
51. Schön, supra note 51, at 40.
52. Id. at 40-41.
53. Id. at 49.
When someone reflects-in-action, he becomes a researcher in the practice context. He is not dependent on the categories of established theory and technique, but constructs a new theory of the unique case. His inquiry is not limited to a deliberation about means which depends on a prior agreement about ends. He does not keep means and ends separate, but defines them interactively as he frames a problematic situation. He does not separate thinking from doing, ratiocinating his way to a decision when he must later convert into action. Because his experimenting is a kind of action, implementation is built into his inquiry. Thus reflection-in-action can proceed, even in situations of uncertainty or uniqueness, because it is not bound by the dichotomies of Technical Rationality.”
Id. at 68-69. And,
[T]he practitioner approaches the practice problem as a unique case. He does not act as though he had no relevant prior experiences; on the contrary. But he attends to the peculiarities of the situation at hand. … [He does not] behave as though he [was] looking for cues to a standard solution. Rather, [he] seeks to discover the particular features of his problematic situation, and from their gradual discovery, designs an intervention.
Id. at 129.
54. For our lawyer and our client this means:
[T]here is the recognition that one's expertise is a way of looking at something which was once constructed and may be reconstructed; and there is both readiness and competence to explore its meaning in the experience of the client. The reflective practitioner tries to discover the limits of his expertise through reflective conversation with the client. Although the reflective practitioner should be credentialed and technically competent, his claim to authority is substantially based on his ability to manifest his special knowledge in his interactions with his clients. He does not ask the client to have blind faith in a “black box,” but to remain open to the evidence of the practitioner's competence as it emerges. For this relationship to work, however, serious impediments must be overcome. Both client and professional bring to their encounter a body of understandings which they can only very partially communicate to one another and much of which they cannot describe to themselves. Hence the process of communication which is supposed to lead to a fuller grasp of one another's meanings and, on the client's part, to an acceptance of the manifest evidence of the professional's authority can only begin with nonunderstanding and on acceptance— but a willing suspension of disbelief.
Schön, supra note 51, at 286. And for our lawyer:
[T]he reflective contract [with the client] calls for competencies which may be strange to him. Whereas he is ordinarily expected to play the role of expert, he is now expected from time to time to reveal his uncertainties. Whereas he is ordinarily expected to keep his expertise private and mysterious, he is now expected to reflect publicly on his knowledge-in-practice, to make himself confrontable by his clients.
As the professional moves toward new competencies, he gives up some familiar sources of satisfaction and opens himself to new ones. He gives up the rewards of unquestioned authority, the freedom to practice without challenge to his competence, the comfort of relative invulnerability, the gratifications of deference. The new satisfactions open to him are largely those of discovery—about the meanings of his advice to clients, about his knowledge-in-practice, and about himself. When a practitioner becomes a researcher into his own practice, he engages in a continuing process of self-education. When practice is a repetitive administration of techniques to the same kinds of problems, the practitioner may look to leisure as a source of relief, or to early retirement; but when he functions as a researcher-in-practice, the practice itself is a source of renewal. The recognition of error, with its resulting uncertainty, can become a source of discovery rather than an occasion for self-defense.
Id. at 299.
55. Donagan, A., The Theory of Morality 89 (1977)Google Scholar.
56. I am not asserting that the prudential reasoning offered to clients by good lawyers is necessarily the same as moral reasoning. Nor am I arguing that the consequentialist nature of the problem solving and decision making processes offered by lawyers makes those processes moral ones. I am asserting that those processes share many of the attributes of moral thinking. I believe that the type of reflecting on disputes which lawyers offer to clients is also the type of reflecting of the moral person. This is true, I believe, for deontological and teleological theories of morality. This idea is best expressed for me in the work of H. Arendt. See H. Arendt, supra note 46. For a description of a moral reasoning process which shares some of the attributes I have described for lawyer-client processes, see Perry, T., Moral Reasoning and Truth: An Essay In Philosophy & Jurisprudence 37–85 (1976)Google Scholar. Perry pursues a comparison of moral reasoning processes and judicial reasoning (Id. at 75-110, 196-215), while my focus is on the reasoning processes in the lawyer's office, although, to some extent, those processes must necessarily reflect judicial reasoning. For an excellent comparison of prudential reasoning and moral reasoning with a focus on the prudence of legal reasoning, see Stoljar, S., Moral and Legal Reasoning 24–46 (1980)CrossRefGoogle Scholar.
57. Values are also captured in the processes by which these rules are defined and applied, both by the lawyer and by the courts. For a comparison of legal reasoning processes to moral reasoning processes, see Donagan, A., The Theory of Morality 68–72 (1977)Google Scholar; generally, Stoljar, S., Morals and Legal Reasoning (1979)Google Scholar; Perry, , Moral Reasoning and Truth (1976)Google Scholar.
58. H. Arendt, supra note 46, at 4.
59. Id. at 180.
60. Id. at 179.
61. Id. at 187.
62. Id. at 190-91.
63. Id. at 188-89. See generally Donagan, A., The Theory of Morality (1977)Google Scholar for a Kantian prospective on first principles. Avoiding self-contradiction is part of the respect for yourself as a rational creature which Kant would require of all persons.
64. H. Arendt, supra note 46, at 179.
65. Id. at 192.
66. Id.
67. Id. at 193.
68. “If the standard of morals is low it is because the education given by the interaction of the individual with his social environment is defective.” Dewey, J., Human Nature and Conduct: An Introduction to Social Psychology, in The Philosophy of John Dewey 716 (McDermott, J. ed. 1973)Google Scholar.
69. Moving us in a particular direction does not mean moving us towards a particular end. We constantly redefine our end as we move towards it. Also, we cannot move towards a particular end in any systematic way because individual circumstances and the values of the individuals will be unknown. For Hayek, the general welfare of a free society can never be the achievement of known particular results. It can only be “that abstract order of the whole which does not aim at the achievement of known particular results but is preserved as a means for assisting in the pursuit of a great variety of individual purposes.” 2 Hayek, F.A., Law, Legislation, and Liberty 5 (1976)Google Scholar. This is so because we are always ignorant of the circumstances in which rules of conduct will be applied and, in particular, ignorant of the particular ends which will be pursued by different individuals. Rules of conduct serve to facilitate the pursuit of unknown individual purposes. Id. at 1-5, 8-15, 20-23. Nevertheless, as I have argued in the critique sections, we must offer ends of the practice in order to be able to describe it completely.
70. Thibault, J. & Walker, L., Procedural Justice: A Psychological Analysis (1975)Google Scholar.
71. Id. at 118.
72. Id.
73. Id. at 102.
74. Id. at 119.
75. Id.
76. I am assuming that this sort of peace-keeping is a good thing for society. For me, the peace-keeping I am describing arises from human nature, as does conflict, and is easily distinguishable from the sublimation of conflict by the adversarial system complained of by Simon and others. See Simon, supra note 11.
There is an argument that the personalization of the conflict through participation would increase antagonism rather than reduce it. I agree with Noonan when he says that: “The depersonalization which, [it is argued], has reduced the tension is actually a way of increasing the possibility of conflict.” Noonan, , Other People's Morals: The Lawyer's Conscience, 48 Tenn. L. Rev. 227, 233 (1981)Google Scholar. And, that; “People intuitively favor the resolution of … ambiguities by increasing personal involvement rather than decreasing it.” Id.
Noonan's article is concerned with the effect of vicarious responsibilities on lawyers' consciences. In a similar fashion, I am concerned with the effect on clients' consciences when lawyers fail to provide meaningful participation by separating clients from their own acts.
77. The historical theory is that the adversarial system and the advocate's role were created in conjunction with the growth of commercial trade. The expansion of market exchange produced an emancipation of a significant segment of the population from “traditional orientations and patterns of association.” During this time, a significant portion of society was freed from the process of resolving disputes based on “status.” These people were the first to meaningfully participate in the resolution of personal legal disputes. The merchants sought social norms to govern their disputes and coercive enforcement of some norms, especially those essential to the market. The judiciary was created to allow merchants to invoke the state's coercive power. Advocates were needed, following the creation of the judiciary, in order for merchants to retain autonomy and invoke authority when necessary. Advocacy grew and “[s]ince these legal specialists [were] not immediately associated with religious, political, and judicial authorities, and since control of their work [was] difficult to implement except indirectly, it [was] in the context of expanding market relations that partisanship of legal counsel developed] most easily.” Rueschmeyer, D., Lawyers and Their Society: A Comparative Study of the Legal Profession in Germany and the United States 4–5 1973)CrossRefGoogle Scholar. See also Berman, H.J., Law and Revolution: The Formation of the Western Legal Tradition (1983)Google Scholar. Prof. Berman argues that Western legal systems did not exist until the end of the eleventh century and early twelfth century, when they were created, primarily, through the assertion of papal supremacy and of the independence of the church. Id. at 23-28. He recognizes, however, that the creation of legal systems would have been impossible without an underlying “folklaw” with a communitarian character. Id. at 76. He describes that folklaw as follows:
As in many non-Western cultures, the basic law of the peoples of Europe from the sixth to the tenth centuries was not a body of rules imposed from on high but was rather an integral part of the common consciousness, the common conscience, of the community. The people themselves, in their public assemblies, legislated and judged; and when kings asserted their authority over the law it was chiefly to guide the custom and the legal consciousness of the people, not to remake it. The bonds of kinship, of lordship units, and of territorial communities were the law. If those bonds were violated, the initial response was to seek vengeance, but vengeance was supposed to give way—and usually did—to negotiation for pecuniary sanctions and to reconciliation. Adjudication was often a stage in the reconciliation process. And so peace, once disrupted, was to be restored ultimately by diplomacy. Beyond the question of right and wrong was the question of reconciliation of the warring factions. The same can be said also of the law of many contemporary so-called primitive societies of Africa, Asia, and South America, as well of many ancient civilizations of both the past and the present.
Before the professionalization and systematization of law, more scope was left for people's attitudes and beliefs and for their unconscious ideas, their processes of mythical thought. This gave rise to legal procedures which depended heavily on ritual and symbol and which in that sense were highly technical, but by the same token the substantive law was plastic and largely nontechnical. Rights and duties were not bound to the letter of legal texts but instead were a reflection of community values, a living law which sprang, in Fritz Kern's words, “out of the creative wells of the sub-conscious.” Kern recognized that the customary law of this early period of European history was often “vague, confused, and impractical, technically clumsy,” but that it was also “creative, sublime, and suited to human needs … Law, like art and myth and religion, and the language itself, was for the peoples of Europe, in the early stages of their history, not primarily a matter of making and applying rules in order to determine guilt and fix judgment, not an instrument to separate people from one another on the basis of a set of principles, but rather a matter of holding people together, a matter of reconciliation. Law was conceived primarily as a mediating process, a mode of communication, rather than primarily as a process of rule-making and decision-making.
Id. at 77 (emphasis in original). The point here is that a conception of lawyers arising from such a folklaw tradition would be that of one who enhances the participation necessary for communication and resolution of disputes.
Prof. Landsman says something similar in Landsman, S., The Adversary System—A Description and Defense (1984)Google Scholar when he notes that medieval procedures for dispute resolution contributed to the formation of the adversarial system by “establishing] the principle that the parties to the dispute are to play the preeminent part in the procedure leading to its resolution.” Id. at 10.
Finally, Neef and Nagel offer a similar description of the development of the adversary system in American in Neef, & Nagel, , The Adversary Nature of the American Legal System: A Historical Perspective, in Gerson, , Lawyers' Ethics (1980)Google Scholar.
The American settlers rewarded self-reliance. The harsh environment of the early colonies tended to encourage it and to generate individual expectations of material improvement. The early Americans brought a belief in individual self-control over individual direction to their formation of legal procedures. Thus, the settlers came to America amidst a spirit of conscious self-effort to guide individual affairs. They were primarily opposed to legal procedures which seemed to' direct the individual.… In the colonies a new class of entrepreneurs arose, demanding a more rational system of law, a system which would embody definite procedures and rules and allow the common man even more individual control of the proceedings. Because of its entrepreneurial spirit and preoccupation with monetary investments, the middle class demanded more rigorous rules and needed a greater degree of “predictability” from its courts. They wanted to be confident that they could invest their available money, and that rules would not be capriciously changed by judges who considered themselves representatives of the King. Many of the emerging middle class who came to America believed they had been abused by the Aristocratic government of England. They were therefore most intent in preventing the formation of another aristocracy; the adversary system appeared to be a good method for protecting the citizenry against this. … Since the adversary system restricted a judge's role to that of a passive arbiter, it was also looked upon as a good way to prevent judges from becoming an arm of the state.
Id. at 83-84 (footnotes omitted). See also Alexander, , The History of the Law As An Independent Profession And The Present English Svstem in The Lawyer's Professional Independence 1 (1984)Google Scholar.
It is still possible to view the mechanisms of the adversarial system as an elaborate restraint on the enforcement of social norms, with the restraint being the strongest when it is the state that seeks enforcement of norms. Viewed that way, the adversarial system is a victory of merchants over the rulers who sought to reduce their autonomy. Both the role of the advocate and the adversarial system arise from a common source, namely the merchants' desire to continue to resolve their own disputes.
78. Many of my students would tell me that they would reach a point in representing a client where they would just simply refuse to do what lawyering required. They always viewed their refusal as a moral act, and it was. But the “here I stand” approach to lawyer's ethics seems to me to be no way to live. I cannot teach my students that morality is something you fall back on when your profession takes you to the point of complete repulsion. There has to be some recognition of the work of the profession as a moral enterprise, and, if it is not, I should be telling my students to get out of law school. What if the “here I stand” lawyer stayed with her client and tried to help that client be as good as he can in what he is doing? A person who views the work of her profession in that way just does not see herself as forced to the point of repulsion by it. It is true that staying with the client will often fail from society's point of view, but it is what you are trying to do in your lawyering, rather than what you accomplish, that makes it a moral enterprise.
79. Schwartz, , The Zeal of the Civil Advocate, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 150 (Luban, D. ed. (1983)Google Scholar. These principles were expressed first in Schwartz, , Professionalism and Accountability, 66 Cal. L. Rev. 669, 673 (1978)CrossRefGoogle Scholar. The “Principle of Nonaccountability” is somewhat of a straw man as Schwartz acknowledges. Id. at 674. The argument that the role of lawyer makes lawyers morally non-accountable for their actions as lawyers is extreme. The real issue is not moral accountability; it is whether or not, and to what extent, we are to consider the role of the lawyer, and its benefits, in the moral assessment of any particular act by a lawyer.
80. Id.
81. Id.
82. Schwartz, Professionalism and Accountability, supra note 79.
83. Schwartz, The Zeal of the Civil Advocate, supra note 79, at 152-54.
84. Id. at 154.
85. Since writing this article I have written an introductory text for students on a similar subject. Sammons, J., Lawyer Professionalism (1988)Google Scholar. The process of writing that book clarified some of my thoughts on these subjects. Now I would not be so hesitant to say simply that clients are good people, and that the processes I describe here are good ones because they seek to reflect the goodness of the clients. Helping clients be as good as they are is the moral enterprise of lawyering. I have learned from Shafer and McIntyre and others the simple truths that the best interests of my clients are always to be found in a quest for the good and that virtue is its own reward. Those simple truths are the ones that inform my teaching now.