Week 3- Lawyer-Client Relationships Charles Fried, The Lawyer as a Friend Traditional conception of a lawyer: “a professional devoted to his client's interests and as authorized, if not in fact required, to do some things (though not anything) for that client which he would not do for himself.” The ideal of moral purity- “the ideal that one's life should be lived in fulfilment of the most demanding moral principles, and not just barely within the law.” “Does the lawyer whose conduct and choices are governed only by the traditional conception of the lawyer's role, which these positive rules reflect, lead a professional life worthy of moral approbation, worthy of respectours and his own?” The two criticisms of the traditional concept (targeting both the means and the end): o The first criticism focuses on social harm (also used in context of doctors). The traditional conception states that the professional’s primary duty and loyalty is towards his client. This duty permits, maybe even demands, allocation of his time, energy and resources to the client, such that the result is not always the greatest good for the greatest number. Eg. Advice to avoid tax which will harm public interest or defending a criminal who is obviously a danger to society. It’s great if the lawyer chooses the poorest or the sickest as his clients, but there is no professional duty obligating him to do so. Critics contend that it is unethical and wasteful that some of the finest talent is used for intricacies of corporate law, real estate and the like. This immortality amplifies when the clients (corporates) use it to avoid obligations, in justice if not in law, towards society and perpetuate inequality and injustice. o The second crit focuses on the lawyer: This crit says that lawyers harm not only the unidentified persons (the poor) who they do not choose as clients but also their identified adversaries. Eg. Discrediting a nervous but probably truthful witness orusing the limitations act to avoid a debt that is clearly owed. In the face of these two criticisms, can a morally sensitive person conduct himself such that his professional AND moral obligations are fulfilled? Fried argues that it is not only legally but also morally right for a lawyer to prioritise his client’s interest over collective interest. He says that the traditional conception is mandated not just by positive law but also by morality and all advanced legal systems should understand this in order to be just. Charles Curtis says that a lawyer can lie for his client the way one would to save his friends or relatives. This stems from the understanding that one’s sense of partiality towards someone close to them is greater than an abstract sense of humanity. Fried thinks that the analogy widens the problem. It basically says that in “claiming this authorization to have a special care for my clients I am doing something which I do in other contexts as well.” Utilitarian Explanation: Utilitarians like Mill and Sidgwick said it’s reasonable to prefer the interests of those close to us because we are most likely to know their needs and benefit them. This effectively means less overhead burden and admin cost. Fried criticises this notion and says that if what is mentioned above is the sole basis of the preference then it would be one’s duty to whether their efforts may not be spent “more efficiently on the society at large, “on the distant, anonymous beneficiary”. Fried argues that this is an inquiry that that we are not required, often not even authorised, to make. He says that it is logically inconsistent to expect someone to admit that the general good is one’s only moral standard while simultaneously taking care of only his family and friends. Self, Friendship and Justice: The human person if the utilitarian claim were true- all my choices are based on the well-being of humanity. This means that every human being has an equal claim on my good. So I am to myself only what everyone else is to. This is problematic. Before morality comes the idea of the person and the self. Morality should be understood such that it makes sense to “posit choosing, valuing entities – free, moral beings. “But the picture of the moral universe in which my own interests disappear and are merged into the interests of the totality of humanity is incompatible with that,21 because one wishes to develop a conception of a responsible, valuable, and valuing agent, and such an agent must first of all be dear to himself. It is from the kernel of individuality that the other things we value radiate.” Individuality is defined by concerns for the self and close ones and not by concerns for society because “as my experience as a judging, valuing, choosing entity is crucial to me, I must conclude that for others, their lives and desires are the centre of the universe.” The individualised relations of love and friendship have a more intense aspect that the abstract relations of love and service to humanity in general. According to the ethics of a human being, the freedom to reserve an area of concern for close ones and venture out based on one’s own choice and similarly, the freedom to be cared for as a priority by a friend is central to the idea of every individual. A lawyer is a limited-purpose friend. He takes care of your interests and makes them his own in so far as it is necessary to preserve the client’s autonomy within the law. The complex web of institutions does not allow an individual to preserve his autonomy without help from an expert. The Asymmetry of Motive and Duty: the Form of the Relation: Even though friendships are normally reciprocal, in a lawyer-client relationship, it is the client’s right to receive an extra measure of care and the lawyer’s right to give it. Is a lawyer acting in a morally worthy manner when he picks an “unworthy” client? “The lawyer acts morally because he helps to preserve and express the autonomy of his client vis-a-vis the legal system… Moreover, the legal system, by instituting the role of the legal friend, not only assures what it in justice must-the due liberty of each citizen before the law-but does it by creating an institution which exemplifies, at least in a unilateral sense, the ideal of personal relations of trust and personal care which (as in natural friendship) are good in themselves.” Friendship, unlike legal friendship, is not bought. Is it then a commercial transaction? Fried says no. “The lawyer and doctor have obligations to the client or patient beyond those of other economic agents. The lawyer and doctor may not refuse to give additional care to an individual who cannot pay for it if withdrawal of their services would prejudice that individual.” Institutional Clients: Fried says that another criticism of my conception of lawyer as a friend maybe the existence of government and corporation as friends. But corporations and other institutions are only formal arrangements of real persons pursuing their real interests. If real people are allowed to protect their autonomy, they should be allowed to do so even while exercising their right to operate through institutions. Application of Lawyer as a Friend to the Two Criticisms: Response to the first criticism: “The lawyer-client relation is a personal relation, and legal counsel is a personal service. This explains directly why, once the relation has been contracted, considerations of efficiency or fair distribution cannot be allowed to weaken it. The relation itself is not a creature of social expediency (though social circumstances provide the occasion for it); it is the creature of moral right… If I have a client with legal needs, then neither another person with greater needs nor a court should be able to compel or morally oblige me to compromise my care for those needs.” But what of the initial choice of client? Should he pick a client such that his efforts will do the most good? If we say yes to this, we basically define the lawyer as a scarce resource but a person is not a resource. Human beings are entitled to free will and the liberty to exercise his professional skills as per his professional inclinations. “I would be happy to acknowledge the existence of some moral duty to represent any client whose needs fit one's particular capacities and who cannot otherwise find counsel. This is not a large qualification to the general liberty I proclaim. The obligation is, and must remain, exceptional; it cannot become a kind of general conscription of the particular lawyer involved.” Fried admits that there are several people with unmet needs but he says that if there aren’t enough lawyers to care for the poor, it would be unfair to conscript the legal profession to fulfil those needs. The obligation of justice is one of society as a whole, not just one profession. It would be hypocritical to not make society pay these lawyers via tax. In a democratic society, society does not have any “anointed priests of justice” as many critics characterise lawyers. Staying within the Law: The legal friend should protect his client’s interest (within the law) even if they aren’t in consonance with public interest but this doesn’t mean he should violate the law. If the legal system is sensitive to moral claims and individual rights, it must allow autonomy to be exercised in ways that are not necessarily linked to public interest. In cases where lawyers further their client's rights-the rights which the law should, but did not, recognize, the lawyer goes beyond legal friendship and it becomes a political friendship, political agitation. Response to the Second Criticism: Fried divides the injustice done to adversary in two types and says that one is acceptable. “Consider the difference between humiliating a witness or lying to the judge on one hand, and, on the other hand, asserting the statute of limitations or the lack of a written memorandum to defeat what you know to be a just claim against your client. In the latter case, if an injustice is worked, it is worked because the legal system not only permits it, but also defines the terms and modes of operation. Legal institutions have created the occasion for your act. What you do is not personal; it is a formal, legally-defined act. But the moral quality of lying or abuse obtains both without and within the context of the law. Therefore, my general notion is that a lawyer is morally entitled to act in this formal, representative way even if the result is an injustice, because the legal system which authorizes both the injustice (e.g., the result following the plea of the statute of limitations) and the formal gesture for working it insulates him from personal moral responsibility. I would distinguish between the lawyer's own wrong and the wrong of the system used to advantage by the client.” If there is a precedent leading to a morally unjust position, the wrong is wholly institutional. A lawyer can refuse a case that he finds morally reprehensible as long as there is another lawyer who will take it up. But if he is the last lawyer in town, is there a moral obligation to take up a case where is there a moral obligation to help the finance company foreclose on the widow's refrigerator? Fried says to establish a sense of legal right (of the company, to go to trial), yes. But if all the other lawyers happen to be on vacation and the case means no more to the finance company than the resale value of one more used refrigerator, common sense says the lawyer can say no. Conclusion: “I would like to return to the charge that the morality of role and personal relationship I offer here is almost certain to lead to the diversion of legal services from areas of greatest need. It is just my point, of course, that when we fulfill the office of friend-legal, medical, or friend tout court-we do right, and thus it would be a great wrong to place us under a general regime of always doing what will "do the most good." What I affirm, therefore, is the moral liberty of a lawyer to make his life out of what personal scraps and shards of motivation his inclination and character suggest: idealism, greed, curiosity, love of luxury, love of travel, a need for adventure or repose; only so long as these lead him to give wise and faithful counsel. It is the task of the social system as a whole, and of all its citizens, to work for the conditions under which everyone will benefit in fair measure from the performance of doctors, lawyers, teachers, and musicians. But I would not see the integrity of these roles undermined in order that the millennium might come sooner. After all, it may never come, and then what would we be left with?”
