A Proposal for the Moral Practice of Law by Kathleen s. Bean 03

8/4/2019 A Proposal for the Moral Practice of Law by Kathleen s. Bean 03

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A PROPOSAL FOR THE MORAL PRACTICE OF LAWKathleen S. Bean*

The legal community has been the recipient of numerous scholarlycontributions in its search for a theory of proper moral and ethical stan-dards for the practice of law.' These explorations of moral issues in thepractice of law have clarified two primary theories of moral lawyer-ing-one endorses the concept of "role m~ral i ty"~n the practice oflaw; the other argues for the integration of personal morality into one'spractice. Along the way, there have been illuminating discussions ofrule and act utilitarianism, and deontological and teleological moral phi-losophies as applied to the practice of law, and all together this scholar-ship has generated a good collection of controversial and thought-pro-voking essays and articles. What appears to be missing thus far,however, is a philosophy for the practitioner- philosophy that ac-commodates whatever moral theory a lawyer might adopt and whichconverts that theory into an instrument that can be used in practicinglaw on a day-to-day basis. In this paper I do not propose any newtheory of professional ethics, nor do I enter the debate as to whichtheory of professional ethics is right for the legal profession. Instead, Ipropose a philosophy of practice designed to assist the moral practi-tioner to succeed in the goal of a moral practice of law, no matterwhat theory of professional ethics that practitioner has adopted.

The discussion of this philosophy of practice should be helpful to* Associate Professor of Law, University of Louisville.1. A very brief sampling: THE GOOD AWYER (D. Luban ed. 1983); D'Amato & Eb-erle, Three Models of Legal Ethics, 27 ST . LOUISU. L.J.761 (1983); Freedman, ProfessionalResponsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH.

L. REV. 1469 (1966); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relationship, 85 YALE .J . 1060 (1976); Kelso & Kelso, Conflict, Emotion, and LegalEthics, 10 PAC.L.J. 69 (1979); Postema, Moral Responsibility in Professional Ethics, 55N.Y.U.L. REV. 63 (1980); Schneyer, Moral Philosophy's Standard Misconception of LegalEthics, 1984 WIS. L. REV. 1529; Schwartz, The Zeal of the Civil Advocate, 1983 AM. B.FOUND. RES. J. 543; Simon, The Ideology of Advocacy: Procedural Justice and ProfessionalEthics, 1978 WIS. L. REV. 30; Wasserstrom, Lawyers as Professionals: Some M ora l Issues,5 HUM. RTS. 1 (1975).2. See text accompanying notes 4-13.


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50 The Journal of the Legal Professionlaw teachers and law students, as well as practitioners. I use this philos-ophy in structuring my course on professional responsibility and findthat it provides a good framework for the course. This approach to thetopic has also received a very favorable response from my students.However, the most favorable reaction to this theory comes not frommy students (who have yet to encounter day-to-day decisions in thepractice of law), but from the lawyers who comprise my audiences atcontinuing legal education programs. Their comments have led me tobelieve that the plainness of my proposal provides an instrumentalquality that is appealing to the concerned practitioner. For no matter ifa lawyer has chosen, or instinctively acts in accordance with, a moralstandard for practice which adopts the lawyer role-morality concept ora moral standard which requires integration of one's personal moralityinto one's professional morality, the moral lawyer feels the weight ofthe choice made. This weight is inevitable, as both of these theories ofprofessional morality, along with those theories that lie between thetwo, have their moral shortcomings, and a moral lawyer will feel moralshortcomings.3 Lawyers need to address these shortcomings in order tohave a well-rounded theory of moral practice and to treat the feelingsof moral inadequacy induced by those shortcomings. Both of theseobjectives can be accomplished with a philosophy of practice that rec-ognizes the theoretical foundation of the lawyer's moral philosophy forpracticing law and also deals with the shortcomings in a practical andquantifiable manner. Thus it is primarily for the concerned moral practi-tioner that I offer this discussion.

11. THESPECTRUM OF MORALAWYERING ZEALOUSEPRESENTATIONNDTRUTH AND INTEGRITY

With some focus and reflection, lawyers and law students are gen-erally able to catalogue their instincts concerning the moral practice oflaw as either leaning towards the zealous representation end of theethics spectrum or the truth and integrity end of the spectrum. Eachend of the spectrum holds a little of the other and most lawyers fallsomewhere in between, but usually the orientation of a lawyer's moral-ity in the practice of law is consistent enough to be classified as one orthe other.

The zealous representation end of the spectrum reflects the law-3. Gerald Postema would not necessarily agree that the role morality lawyer

would feel the weight. See Postema, Moral Responsibility in Professional Ethics, 55N.Y.U.L.REV. 63, 69-70 (1980).


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The Moral Practice Of Law 51yer morality attributed to the concept of role morality. "Role morality,"a concept admirably explained by Richard Wasser~trom,~s the usualname given to the notion that a lawyer can morally justify whatever heor she has done because zealous representation of the client requiredit.= Moral considerations which might otherwise apply and require adifferent course of conduct are not relevant as long as one i s operatingin the role of zealous lawyer and within the professional standards thathave developed for that role.

The role morality concept serves not only as a justification for ig-noring whatever moral considerations might apply in real life (as op-posed to the professional life), but also as an argument for prohibitingconsideration of personal moral standards. In order to keep the systemfunctioning optimally, goes the argument, all persons must fulfill theirassigned roles. The limited role of the lawyer is to adhere to the profes-sional morality standard requiring zealous representation of one's client.Bringing in the lawyer's notion of what is right or wrong, or moral orimmoral, will upset the fine balance of the sy~tem.~

Murray Schwartz has defined this type of lawyer's role as beingdetermined by two principles: Professionalism and Nonaccountability.The principle of Professionalism requires that "[wlhen acting as an ad-vocate, a lawyer must, within the established constraints upon profes-sional behavior, maximize the likelihood that the client will prevail."'The principle of Nonaccountability requires that "[wlhen acting as anadvocate for a client according to the Principle of Professionalism, alawyer is neither legally, professionally, nor morally accountable for themeans used or the ends achieved."e

Basically, the first principle requires maximizing the zealousnesswith which the lawyer represents a client8 by pressing every advantageand stretching every limitation. The far end of the role morality spec-trum is marked by some established constraints upon professional be-havior, but, by definition, these are few to the zealous representationlawyer. For example, while role morality lawyers usually acknowledgethe limitation that lawyers not break the law,lo they also interpret the

4 . Wasserstrom, Lawyers as Professsionals: Some Moral Issues, 5 HUM. RTS. 1(1975).

5 . Id. at 5-6.6 . See, e.g., Postema, supra note 3.7 . Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. ES .J. 543, 544.8 . Id.9 . This assumes that the lawyer has already taken the case.10. See Postema, supra note 3, at 73 .


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52 The Journal of the Legal Professionlaw with their zealous representation hats on; thus the law is inter-preted, if at all possible, to suit the needs of their client. Another tradi-tional limitation is that which requires a lawyer to take action to disclosea fraud upon a person or tribunal if the lawyer discovers that a clienthas committed such a fraud in the course of representation, unless theinformation is protected as privileged.ll Most role morality lawyersrarely encounter a situation of fraud by a client that the invocation ofthe lawyer's duty of confidentiality does not resolve. The limitations ac-knowledged by the role morality lawyer vary, but they are consistentlyand uniformly constricted by the countervailing interests of zealouslyrepresenting the client.12

The second principle, that of Nonaccountability, relieves the law-yer of moral responsibility for the possibility that a law was substan-tively, if not technically, broken, or for the fraud that was committedupon the tribunal and never reported because the lawyer was deniedthe breadth of role to do anything about it. The lawyer is powerless todo anything but represent the immoral client in achieving immoral endsby immoral means, if that is what the role of zealous representationrequires.l3

At the other end of the spectrum are the lawyers who carry theirpersonal moral standards for truth and integrity into the practice of law,and practice law in accordance with that personal code of ethics. Thisis no more than it appears to be. These lawyers will not accept casesthey personally believe to be immoral, even though the law allows theaction (e.g., a statute of limitations defense on a debt); they will not useimmoral means, even though the means may be legal, to obtain a cli-ent's goal (e.g., these lawyers would not conduct a misleading cross-examination of a truthful witness).14 Underlying this view is the assump-tion that the lawyer will, and should, recognize that what is legal repre-sentation is not always moral representation. Simply because a clienthas a legal cause of action or defense does not mean that a lawyer isbound to assist the client with his or her cause. In fact, if the ultimategoal is immoral, the moral truth and integrity lawyer is required to re-fuse assistance to the client. In addition, the integrity lawyer remainsmorally accountable for acts committed in the role of lawyer, just as ifthe lawyer committed the same act outside of his or her lawyer role.

11. MODEL CODE OF PROF. RESP. R 7-102(8)(1)(1980).12. For additional reading, see Schwartz, supra note 713. See Postema, supra note 3, at 73.14. See Schwartz, supra note 7, at 557.


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The Moral Practice Of Law 53Thus, even if the client's goal is moral and the client deserves the goal,the integrity lawyer is precluded from using immoral means to getthere, even if that effectively precludes the client from his or her right-ful and moral end.

Like their counterparts, these lawyers also have some limitationsupon the imposition of their moral standards. These are harder to illus-trate and pin down than the zealous representation lawyers' limitationsfor the very reason that they reflect the individual lawyer's personalstandards of truth and integrity. These limitations include a general ac-ceptance of the basic rules of the adversary system, i.e., that eachparty is responsible for carrying his or her own burden of proof in acivil case, and in a criminal case the government must prove guilt be-yond a reasonable doubt. However, the integrity lawyers believe it iswrong to take unfair advantage of an adversary's weakness, incornpe-tence or mistake when doing so will result in suppressing the truth. Insuch an instance, truth and integrity lawyers will correct opposing coun-sel if he or she mistakenly assumes a misleading fact, or will provideinformation to opposing counsel if he or she has not been competentenough to obtain relevant information. While truth and integrity law-yers accept that their job i s to represent their client in an adversarialsystem, they consider truth and integrity to be paramount values intheir occupation; the needs of a particular client or potential client mustbe secondary to these values.

Another method of comparing the two ends of the spectrum islabeling and viewing them as the "battle" model of adjudication andthe "truth" model of adjudication.15 This method of comparison ishelpful in that it suggests the morality of each of these theories. Cer-tainly either philosophy can be a subterfuge- or lawyers who choosezealous representation, it can be a course chosen out of love for thebattle, with no thought of morality; for lawyers who choose truth andintegrity, it can be a course chosen out of concern for their reputation,with no thought for the morality of law or the legal system. But, eithertheory can also be a philosophy that a moral lawyer has chosen as thebest moral way to practice law both for law and the legal system. Aslong as some limitations are observed and these lawyers stay within themoral spectrum created by the outside limitations to each theory, eitherof these philosophies can be the choice of a moral lawyer looking for amoral way to practice law.

15. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics,1978 WIS. L. REV. 30, 31.


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54 The Journal of the Legal ProfessionWhile both models are theoretically committed to truth, and ulti-

mately to justice and morality, the battle view lawyers assume the bestway to find the truth is for two zealous lawyers to fire their ballistics inthe courtroom, with the victor, and thus the truth, to be determined bythe judge or jury.16 The truth model lawyers do not rely solely uponthe adversary system to bring truth, and ultimately justice and morality,to the surface, but rather rely upon each lawyer assuming a personalmoral duty to see that the truth comes out."

The premise of each of these models is determined by the place-ment of moral responsibility. In the battle model, moral responsibility isplaced with an adversarial system that stresses zealous representation.These lawyers operate with a role morality because they believe thatthe system demands it; allowing personal morality to intrude upon theirprofessional conscience will upset the balance of the system of whichthey are part. Because they believe that the system is the best methodavailable for obtaining truth, justice and morality, these lawyers act tokeep the system consistent and play by the zealous representationrules. Thus the responsibility for a moral outcome by moral means restswith the system, not the individual lawyer. The lawyer's moral responsi-bility is limited to playing the role of zealous lawyer.

In the truth model, the moral responsibility of the means and out-come lies directly at the feet of the individual lawyer. Thus, rather thanmake a (moral) choice to play the amoral role that lawyers are assignedwithin an adversarial system (which is presumed to be ultimately moral),these lawyers make personal truth and integrity a part of their chosensystem for finding ultimate truth and justice, thereby assuming a moredirect and personal moral responsibility.

111. THE MORAL LAWYERThe challenge is to find a philosophy of practice adaptive to both

ends of this spectrum of moral practice. In addition, it must also be aphilosophy responsive to the pragmatic needs of the lawyer whosemoral choice is shaped more by instinct than by intellectual reflection.Even for those lawyers and law students with the inclination and capac-ity for intellectual pursuit of moral lawyering theories, the realities oflaw school and demands of practice often preclude any such pursuits.Thus it must be a philosophy that can leave the pages of this law jour-

16. Freedman, Professional Responsibility of the Criminal Defense Lawyer: TheThree Hardest Questions, 64 MICH. L. REV. 1469, 1470 (1966).

17. Supra note 15, at 35.


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The Moral Practice Of Law 55nal and make itself at home in the office of lawyers who are good-intentioned, but lack the time or education necessary for extended re-flection upon differing moral philosophies and how they relate to thepractice of law.

Assuming an ideal education, by graduation law students shouldunderstand deontological moral philosophy, along with act and rule util-itarianism and teleological moral philosophy.lBThey should also be ableto articulate the concept and consequences of role morality in compari-son to the integration of truth and integrity into the day-to-day practiceof law. ,From this, as lawyers they could choose or construct a philoso-phy for the practice of law that would carry out the moral philosophyof law they chose. This would indeed be ideal. However, the requiredcourse on professional responsibility at most law schools, where unfor-tunately much of this philosophical construction would need to bedone, falls far short of providing the necessary groundwork. Lack ofcredit hours for the course, along with the corresponding attitude withwhich the students greet the course, rarely result in the time or themilieu needed for providing the most motivated student with a com-plete education in professional responsibility.

Realistically, a law teacher can hope to supply the most elementarygroundwork for these concepts, and provide some stimulation forthought during law school. Presumably, most students will give somethought to the fact that the practice of law has moral dimensions andconsequences. This may motivate some students to characterize, asbest they can, their personal moral philosophies of life. With some luck,a few students may be stimulated to evaluate that personal moral phi-losophy within the context of the practice of law, and to draft a philos-ophy for practice that reflects their considered judgment on how bestto achieve morality and justice in law. As a practical matter, however, itis difficult for the student to reach this last stage during law school evenif the ideal situation exists. As with any law school subject, the practiceof law provides lessons teachers cannot teach. For a student to acquiresuch a level of understanding without a flesh-and-blood moral dilemma,a combination of a rare and mature student, a rare and accomplishedteacher and a rare school atmosphere would be needed.

It is, however, a realistic expectation that most students can under-stand the concept of role morality and recognize that, whether bymoral choice or moral instinct, they are at that end of the spectrum orat the end where there is integration of a personal morality of truth and


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56 The Journal of the Legal Professionintegrity into the practice of law. It is also realistic to expect them toknow the rules of professional responsibility- hat is, what to do in agiven situation (that presumes no countervailing values), e.g. , do notsplit fees unless "the division is in proportion to the services performedby each lawyer [ e t ~ . ] " ~ ~

As for practicing lawyers, my experience is that any effort at refin-ing the thoughts they have concerning the ethics of practice occursmost frequently in cocktail conversations or at dinner parties, and rarelygets applied in a considered and systematic way at the office. Whenthey are confronted with an ethical problem at work, their energies arefirst focused on getting the right answer for an imminent situation.Once they settle on a solution for the problem, thoughts of developingand applying a consistent philosophy to their practice of law are edgedout by demands of another lawyer deadline.20On the other hand, law-yers, like law students, are familiar with the spectrum of moral lawyer-ing that reflects the level of emphasis on zealous representation and

' truth and integrity. Their degree of consciousness as to what kind oflawyer they are may vary, but their instincts will usually inform them ofthe choice they have made, and their instincts usually lead them to ac-tions consistent with that choice. Lawyers are also fairly knowledgeableabout or familiar with the rules and standards of professional responsi-bility, either from studies in law school or from custom and practice inthe legal community.

IV. THE PROPOSALA. The Problem

So why is more needed? What does the moral lawyer or law stu-dent lack that a philosophy of practice can provide? To begin with, atthe same time that the lawyer or law student's thoughts or instinctsmanifest resolutions of ethical problems and identify where the lawyeror student falls on the moral lawyering spectrum (whether or not theyhave considered or attempted to characterize a philosophy for thepractice of law), both student and lawyer recognize or intuit the samedeterminative impediment. No matter if one has a moral theory or not,and no matter what the theory is, a theory does not do away withconflicts of morality in the practice of law. Choosing a philosophy is

19. MODEL RULESOF PROF. CONDUCTule 1.5 (1983).20. See generally, Schneyer, Moral Philosophy's Standard Misconception of LegalEthics, 1984 WIS. L. REV. 1529, 1530-31.


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The M oral Practice O f Law 57one thing; synthesizing it into one's practice is another. First, while aconsidered philosophy will reduce the number of day-to-day moraljudgment calls and p rovid e guidance o n the ones remaining, all philoso-phies have their boundaries: lawyers will have to find them or makethem through their decisions in the practice of law. Second, eachboundary has its o w n moral compromise: lawyers must recognize andaddress those moral compromises to fulfill their moral duty, n o matterwhich end of the spectrum they choose.

A major boundary-setting task for the role morality lawyers, thoselawyers w h o adhere t o the outside limit o f zealous representation, w illbe to decide what is the outside limit of the law or the rule of profes-sional responsibility. Truth and integrity lawyers, whose moral mandateincludes no t taking unfair advantage o f an opponent, w ill b e faced w ithdeciding what is taking unfair advantage and what is merely getting afair deal for their client. In fact, integrity lawyers may carry a greaterburden than zealous representation lawyers in the boundary settingarena. By virtue of their choice to integrate personal morality into theirpractice of law, they create a system filled wi th moral choices at everystep.21 But neither type of lawyer can escape the d uty o f settingboundaries.

Charles Fried, who recognizes the ongoing task of line drawingwhen implementing a philosophy for the practice of law, says of his"Lawyer as a Friend" m odel fo r practice:I do not imagine that what I have said provides an algorithm forresolving some of these perennial difficulties. Rather, what I amproposing is a general way of looking at the problem, a way ofunderstanding not so much the difficult borderline cases as the cen-tral and clear ones, in the hope that the principles we can there

discern will illuminate our necessarily approximate and prudentialquest for resolution on the b~rderline.~~Illumination is probable- esolution is impossible. No theory cantake the judgment out of a moral law practice, no matter what ethicsthe lawyer has chosen.23 The theory certainly should he lp w ith thoseclear and central problems, but the practice of law simply has toomany cases involving ethical dilemmas that do not involve clear and

21. Cf. Simon, supra note 15 , at 143.22. Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Rela-tionship, 8 5 YALE .J . 1060, 1087 (1976). See also id. at 1081, 1084.23. See Postema, supra note 3, at 6 7 .


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The Journal of the Legal Professionsimple issues.24There i s a cost to the lawyer who takes the moral en-ergy to exercise the judgment necessary to implement a moral theoryfor the practice of law, and it translates into a moral stress. For zealousrepresentation lawyers, for example, there is the lingering doubt thatthe boundary that allowed the lawyer to. use the "imaginative and hy-perbolic" statement to deceive opposing' counsel (in the same mannerthat a false document would have)2sstretched into the range of falsestatement of fact. The boundary that separates imaginative and hyper-bolic statements of fact is one that theoretically provides the distancethe lawyer must have to be morally comfortable in the zealous repre-sentation role; the lawyer must still answer for whatever occurs outsideof the role. Thus, while the lawyer knows that all role-playing is for-given, he or she is unsure whether the 'boundary, which placed thestatement in the category of imaginative and hyperbolic instead of in-tentional mistatement, was accurately drawn in the first place.

The comparable situation for the integrity lawyer may be whenopposing counsel has for some reason assumed the existence of a factthat is very favorable to the truth and integrity lawyer's client. The in-tegrity lawyer is left to draw the boundary of truth and integrity; hasthe erroneous assumption affected the negotiations; has it resulted inan offer that is extremely generous for the client; has it resulted in anoffer that the integrity lawyer considers just and fair for the client; anddoes truth and integrity require the lawyer to correct the mistaken as-sumption? Those decisions must be made; the lines must be drawn.2sBoth truth and integrity lawyers and zealous representation lawyersmust designate the boundaries that position them at their end of thespectrum. Knowing which end they want to adopt and getting thereare not the same thing. The task of making the decisions that position alawyer on the spectrum of moral practice is a daily one and the an-swers are often tentative and stressful.

Just as the theories do not eliminate judgment calls or the moralstress of wondering if a decision accurately reflects the lawyer's moraltheory, they also fail to negate the feelings of moral inadequacy thatresult from the lawyer making a judgment call of which the lawyer isfairly confident. No matter how well thought out a lawyer's moral phi-losophy for practice might be, and how much illumination those

24. See Kelso & Kelso, Conflicts, Emotion and Legal Ethics, 10 PAC. L.J. 69 (1979).25. Cf. Simon, supra note 15, at 143.26. Rubin, A Causerie on Lawyer's Ethics in Negotiation, 35 LA. L. REV. 577, 585(1975).


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The Moral Practice Of Law 59thoughts provide so that the lawyer can make a "correct" judgmentcall, both zealous representation lawyers and integrity lawyers are leftwith the compromise inherent in a zero-sum spectrum. Students sensethis almost as quickly as they learn that the American Bar Association'sModel Code of Professional Responsibility or the Model Rules are less ascripture than they are a fertile breeding ground for moral dilemma. Azealous representation lawyer is left to deal with the sometimes unjustconsequences when his or her role playing is "too" successful, just asthe integrity lawyer is left to deal with the sometimes unjust results ofbeing "too" honest.

More specifically, zealous representation lawyers must live know-ing someone guilty has gone free because the actions of the defenselawyer allowed by the law for good and moral reasons, and used bythe lawyer for those reasons, worked; the zealous representation law-yer must live knowing that he or she is responsible for the contempt awitness has for the lawyer-and perhaps for the entire system of jus-tice- ecause the lawyer, to successfully present his or her deservingclient's case, found it necessary to conduct an abusive cross-examina-tion of a witness who the lawyer knew was telling the truth.27

For integrity lawyers it means living with the stress created by theunsettling feeling that even though their client got a fair settlement,they could have gotten more for the client and still stayed within therange of a "fair" and moral sum, had they not been so forthcomingwith information. It means believing that they could have accomplishedthe better outcome (for child and parents) by getting their client cus-tody of his or her child, had the lawyer been willing to be blind to theclient's good faith but negative response in a deposition to a questionconcerning smoking marijuana- the marijuana being a subject the fairbut conservative judge found to be very important.

Living with these consequences and more i s difficult for any law-yer. Even if the lawyer has thought about what theory of professionalresponsibility he or she wants to use in practice and believes that therewas good moral reason for the guilty client going free or knows that amoral purpose was served even though the client lost custody, the

27. A true life story: a decision was made to subpoena an eight-year-old boy totestify about a man whom the lawyer believed had sexually molested the boy, in orderto demonstrate the unsuitability of the man as the custodian of another child. It wasprobable we would win without the testimony, but not certain. It appeared as thoughthe boy was not emotionally equipped to testify without suffering emotional andmental harm. The parents of the eight-year-old were angry and bitter that a system ofjustice would allow this to be done to their son.


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60 The Journal of the Legal Professionlawyer still knows that these are the consequences of the theory thelawyer has chosen to implement, be it that of zealous representation ortruth and integrity. For those lawyers who are operating on instinct,and particularly for those who are denying that the compromise isthere, it is probably much harder, for those lawyers do not have thebenefit of clearly understanding why they chose to take a certain ac-tion in the first place.

As Ted Schneyer points out, this is just the tip of the icebergzBThese consequences are all within the area of compromise the lawyeranticipated when drawing the boundaries of his or her moral theory.When the rest of the system is not behaving as expected, a lawyer'smoral stress, from both the linedrawing and the reality of moral com-promise, is exacerbated. For example, because the zealous representa-tion lawyer relies upon the adversary system, when the system is notoperating at par, i.e., the opposing lawyer is not skilled or zealousenough to see through the tactic the zealous representation lawyerfeels obligated to use, the zealous representation lawyer may beforced to reevaluate his or her philosophy in light of the circumstancesof implementation. The battle model, after all, is designed to work (pro-mote truth, justice and morality) based on the premise that all of thecombatants are adequately, if not equally, armed. In addition, most rolemorality theorists add to the premise that the battle be fought in theindisputable adversarial field- the courtroom with the judge presiding."Though [the principles of Neutrality and Partisanship] might promotewise and informed decisions when both parties are represented byequally well-equipped lawyers whose performance is closely monitoredby an impartial judge, such ideal lawsuits are only the tip of our legaliceberg.'f2e

Schneyer suggests what comprises the rest of the iceberg. Con-sider the following situation:[A ] large real estate operation wants to sue a tenant who cannotobtain counsel or whose lawyer can only devote minimal time andeffort to the matter. In such a case, if Neutrality and Partisanshipspurred the landlord's lawyer to act as an aggressive and single-minded advocate, not only might the proceeding strike the tenant(and us) as unfair, but on the adversary's system's own assumptionsthe decisions might be less informed than if the landlord's lawyerhad considered the tenant's claims sympathetically. Moreover, it is

28. Schneyer, supra note 20, at 1542.29. Id. (footnote omitted).


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The Moral Practice Of Law 61not litigating, but counseling, negotiating and drafting that make upthe largest chunk of the legal iceberg. Here lawyers are very oftenfree of the constraints that check their behavior in court; an impar-tial decisionmaker and a watchful opposing counsel.30When the system is so far out of synch that even the zealous rep-

resentation lawyer cannot ignore it, the lawyer's stress increases. Whilethe zealous lawyer might not be troubled enough to change theboundaries of his or her philosophy, deciding instead to maintain con-sistency of action, certainly the lawyer is pressed to question oncemore the role he or she has chosen for moral lawyering.

The other side of the tip of the iceberg i s when the truth andintegrity lawyer finds him or herself opposing an attorney willing to takewhatever can be taken and willing to use any means in order to do

It may be that the combination of truth and integrity with theopposing counsel's far-end of the spectrum, zealous representationdoes not bring about the result the integrity lawyer anticipated whenchoosing which end of the spectrum was right for the moral practice oflaw. Again, while the truth and integrity lawyer may not change his orher ways, the price of the chosen theory of moral practice increasesboth in the stress of drawing the lines and in the consequences of theaction. When the implementation of the lawyer's moral choice is in asystem that is not cooperating, the price of implementing the choice 'and the number of compromises required are increased.

Jotin Noonan, Jr. says that the "seeking and stating of truth are sonecessary to the human personality and so demanded by broad socialvalues that the systematical presentation of falsehood [demanded ofthe zealous representation lawyer] is both personally demeaning andsocially fr~strating."~~[A lawyer] is also a human being and cannotsubmerge his [or her] humanity by playing a technician's role."33 Whilethis applies to and describes the zealous representation lawyer, thesame can be said for the integrity lawyer. That lawyer, too, has chosento be a technician who operates within a role- an actor whose scriptdemands personal truth and integrity. Zealous representation does notguarantee justice and morality, and thus a stress-free moral conscience;

30. Id.31. See Kelso & Kelso, supra note 24, at 71. See also Rubin, supra note 26, at 590(quoting V. COUNTRYMAN T. FINMAN, THE LAMER IN MODERN SOC'Y 281 (1966)).32. Noonan, The Purposes of Advocacy and the Limits of Confidentiality, 64 MCH.

L. REV. 1485, 1492 (1966).33 . Id.


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62 The Journal of the Legal Professionneither does truth and integrity. Sometimes it simply insures that thewicked will prevail and the innocent will lose. Sometimes it merely in-sures an unjust result at the cost of preserving a principle of truth andintegrity.

Most moral lawyers, and especially those lawyers who have con-sciously chosen their moral theory for practice, will acknowledge thatno theory is perfect and that the other end of the spectrum has muchwhich is defensible. These lawyers are most likely aware that the inevi-table shortcomings of any chosen theory are a major cause of stress intheir practice of law. The flaw of the zealous representation theory ofpractice and the truth and integrity mode of practice is that they quitshort of the moral mark. A sound and functional philosophy of moralpractice must address the moral stress that results from the reality ofplacing theory into practice. It must recognize the stress of the lawyerwho has chosen to be personally morally accountable for the truth andintegrity of the methods used and the results achieved in any givencase. It must recognize the stress of the lawyer who, while rejectingmoral accountability on a day-to-day basis, lies in bed each Saturdaynight and takes tally of the moral compromises made that week in thename of "lawyer." It must offer reassurance to these lawyers whohave taken their professionalism seriously enough to attempt a moralpractice of law. It must give hope that there is rhyme or reason tomoral lawyering and that pursuit of a moral practice is not necessarilyfutile. Most of all, it must be responsive to the frustrated desires oflawyers for clear and ethical guidelines by providing a concrete courseof action for them to take. While it is inescapable that practicing at oneend of the spectrum compromises the morality stressed at the otherend of the spectrum, it is not necessary that lawyers leave the compro-mise unaddressed, nor should they. They need to address it for tworeasons: they need to rid themselves of whatever stress they can in thepractice of law, and if they indeed want to have a moral practice oflaw, they need to address the shortcomings of their theory. It is short-changing their own lawyer morality to end their theory at the border,ignoring the compromise they have left on the other side. They neednot draw their boundary in a different place, but they need to addressthat compromise in order to have a theory of morality which is com-plete and well-rounded.

B. The SolutionI wish I could offer a philosophy of practice that eliminates bound-ary setting or compromise from the moral practice of law. I cannot.


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The Moral Practice Of Law 63However, I believe that lawyers can relieve themselves of much of thestress associated with moral lawyering by adopting a philosophy thatrecognizes that there is a moral dimension to the implementation ofwhatever theory of professional ethics the lawyer has chosen. My pro-posal recognizes that moral lawyers must choose a philosophy for thepractice of law, and in addition, must deal with the consequences ofthe implementation of that philosophy. Choosing the best model ofprofessional ethics does not require boundary setting or moral compro-mise-it may anticipate the need, but it does not ask that the lawyerdo it then. It is the practice of law that requires boundary setting andmoral compromise: a (real) guilty person going free, a (real) child goingto the wrong (real) parent, and a (real) witness looking at a (real) lawyerwith pain and anger and contempt for the cross-examination the law-yer just put the witness through. Recognizing this moral dimension re-quires addressing the boundary setting and moral compromise that oc-cur whenever a philosophy of professional ethics is taken out of thebooks and put into the law office. For the framework of this proposal,a proposal for the moral practice of law, one need look no further thanthe common law of professional responsibility for lawyers.

The rules of professional ethics have always served both the integ-rity lawyer and the zealous representation lawyer. Indeed, the dual ser-vice most rules provide- uiding light for one lawyer and limitations foranother-is what makes the standards of professional responsibilitylook like a murky quagmire to both law students and lawyers. Integritylawyers, for example, read as limitations the rules that they must not failto seek the lawful objectives of their client "through reasonably availa-ble means permitted by law;"34 must not take action that will prejudicetheir client3= and must not reveal the secrets or confidences of theirclient.36Zealous representation lawyers view these rules as guidepostsin their moral practice. Their limitations, e.g., that they not knowinglyuse perjury, break the law or make an intentional misstatement of lawor fact,S7 are regarded similarly as primary guidance for the integritylawyer. The rules of our profession simply reflect the spectrum of mo-rality in the practice of law, which includes both types of lawyering asmoral. Thus, once a lawyer chooses, there is plenty of support in thelaw of professional responsibility to make reputable a far-end of the

34. MODELCODEOF PROF. RESP. DR 7-101(A)(1)(1980)(footnote omitted).35. Id. at DR 7-101(A)(3)(1980).36 . Id. at DR 4-101(B)(1)(1980).37. Id. at DR 7-102(A)(4)(5)(7) 1980).


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64 The Journal of the Legal Professionspectrum truth and integrity lawyer or a far-end of the spectrum zeal-ous representation lawyer. The problem is that the law of professionalethics also serves as a reminder of the moral compromises of thatchoice by providing authority that argues against the action causing thecompromise. Most lawyers view the standards of our profession asending there, just as they view their moral practice as ending there,which only adds to the moral frustration they experience.

My proposal suggests that lawyers should not quit here, and fur-thermore, that the standards of the profession do not quit here either.Once a lawyer chooses a moral theory, the rules of professional ethicsprovide more than support and contradiction for the moral route cho-sen. They also provide a method for dealing with the frustration andstress that accompany implementation. While this provision of profes-sional ethics has not gone unnoticed, it does not appear as thoughmuch attention has been devoted to placing it into a framework thatrecognizes it as an integral part of the moral practice of law, whetherthe lawyer be a zealous one or an integrity one. I view it as the finalstep to completing or fulfilling one's moral theory for the practice oflaw.

The first step is simply noting which end of the spectrum repre-sents the lawyer's moral choice and practicing by that choice. The di-rection of the follow-through varies in accord with the end of the spec-trum chosen.

The underlying premise of the zealous representation lawyer's the-ory of morality is that the system that has been designed to find truth(and justice) is ultimately bound to be more moral than a system whichrelies upon individual lawyers making individual determinations aboutthe morality of the client, the means or the objective in a case. Thus,the most moral choice is to rely upon the adversarial system, in spite ofthe compromises (and moral stress) that come with that choice. Theselawyers need to recognize that their moral stress results from their at-tempts to place their theory of moral practice, which relies upon a per-fect system, into an imperfect system, and that they have not finishedtheir moral task or completed the steps to their moral theory until theyaddress the imperfections of the adversarial system. Their efforts to im-prove the system will assist in it s smooth operation, which, accordingto the lawyer's own theory, will increase the morality of the zealouslawyer's practice of law. Thus, the boundary setting will become morecertain and the compromises will occur less frequently. In turn, the law-yer's stress is reduced! The answer is, of course, not at all that simpleand foolproof. But what is simple and ineluctable, and thus appealing to


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The Moral Practice Of Law 65zealous lawyers frustrated by their unsuccessful attempts to achieve apractice that is certain and moral, is that while the lawyer cannot makethe system perfectly just and moral, the lawyer can do something thatis designed to strengthen the weak link in the morality of his or herpractice. The zealous lawyer can identify some problems within thesystem, determine what needs to be done with one or some of them,and assume responsibility for doing it.

Furthermore, if the lawyer or the law student experiences somedifficulty in determining what can be done to contribute to the smoothoperation of the adversarial system, or requires some authority that thisis indeed part of a zealous lawyer's responsibility to the moral practiceof law, the lawyer need only look to the ABA Model Code of Profes-sional Responsibility, the ABA Model Rules of Professional Responsibil-ity, or the established mores of professional responsibility for lawyers.Professional ethics standards for lawyers do not quit after setting outguideposts and limitations for lawyers at both ends of the spectrum ofmoral practice. Custom and rules have long included suggestions andrequirements for this latter part of a lawyer's moral practice of law.38What professional standards require of the moral lawyer depends uponwhich rules of practice the lawyer considers to be guideposts andwhich are considered to be limitations. Justas the common law of pro-fessional responsibility provides support for the theories at either endof the spectrum, it also provides guidance and support for the actionnecessary to give completion to either theory. Because the ModelCode of Professional Responsibility is probably familiar to most lawyersand law students, and because i ts codification of the mores of profes-sional responsibilty is representative and thus suited to this analysis, itwill be used for reference.

For zealous representation lawyers, the Code sets out several re-sponsibilities that are in addition and complementary to moral and zeal-ous representation of clients. In Canon 2, for example, the Code em-phasizes making legal counsel available to all. This responsibility isdirectly related to the premise of the moral path the zealous lawyer haschosen. Zealous representation only "guarantees" a moral system ofjustice if there is zealous representation for all parties. By engaging in anactivity that assists in making legal services available to all, the zealouslawyer can lessen the frequency of moral compromise occurring as aresult of one side not being represented. The lawyer thus reduces his

38. See Thayer, Annual Report of the Committee on Ethics, 39 A.B.A. ANN. REP.559(1914).


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66 The journal o f the Legal Professionor her guilt and the moral stress that results from seeing the compro-mise that sometimes results from clients without representation beingup against someone with zealous representation. Pro bono work ormonetary contributions to legal services organizations that pro vide legalservices to the poor and disadvantaged will also aid in this endeavor.Canons 1 and 6 should be very important to the lawyer w h o be-lieves in the morality of zealous representation. Canon 6, specificallyDisciplinary Rule 6-101, requires that lawyers represent their client com-petently;=@Canon 1, specifically Disciplinary Rule 1-103, requires law-yers t o r ep or t any lawyer w ho violates any disciplinary rule.40Thus Ca-non 1 requires lawyers to report any lawyer who fails to actcompetently in any legal matter. As the zealous representation lawyer'sstandards for competent lawyering include a high degree of zealous-ness, that lawyer may wish to devote professional efforts to insuringthat lawyers who do no t appear t o be sufficiently zealous t o d o com -petent battle be subjected to review by the disciplinary board. Eventhough scores of comments indicate that most lawyers and law stu-dents do not view this option as practicable, it is possible that it maybecome so when placed in the frame of reference o f the zealous law-yer's moral theory for practicing law. Viewed outside of this frame-work, lawyers may see repo rting a colleague as be ing required b y therules of professional ethics, but having little to do with their belief inwhat makes the system of justice moral. Once a lawyer understandsthat the roo t o f the frustration and mora l stress in the practice of law isthe uncertainty and compromise in implementing the moral theory ofzealous representation, and further appreciates that insuring the com-petency and zealousness of other lawyers can directly reduce the num-ber or extent of compromises or uncertainties, then that lawyer maybe more inclined to d o what needs t o b e done. Admittedly, the possi-bility o f one lawyer reporting another w ill remain unlikely. O n the otherhand, one o f the points o f this essay is to stress the w ide spectrum o fmorality tolerated by the mores o f professional ethics. The provision is

39. MODEL CODEOF PROF. RESP. Canon 6 (1980). See DR 6-101, which states:(A) A lawyer shall not:

(1)Handle a legal matter which he [or she] knows or should know thathe [or she] is not competent to handle, without associating with him [orher] a lawyer who is competent to handle it.(2) Handle a legal matter without preparation adequate in thecircumstances.

(3) Neglect a legal matter entrusted to him [or her].40. MODEL CODE OF PROF. RESP. DR 1-103 (1980).


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The Moral Practice Of Law 67there for those lawyers who desire and feel capable of taking advan-tage of it as a means of achieving a moral practice of law. When alawyer views the problem as ridding a system for justice of an obstruc-tion to morality, the motivation to report may proceed from a highercalling and perhaps the possibility of reporting will increase.Furthermore, for those who find the reporting duty impracticableor undesirable, reporting is not the only option provided for zealousrepresentation lawyers to address the moral compromises of their prac-tice of law. The same problem can be addressed by taking action pur-suant to the provisions of Canon 8, which suggests-rather innocu-ously-that lawyers should assist in improving the legal system. Therange of action this allows the zealous lawyer in constructing a com-plete moral practice of law is infinite. These lawyers can work at im-proving the legal system by taking action that affects the system state-wide, county-wide, city-wide, or in their own office. If they believe thereporting system is ineffective or undesirable, they can work at devisinga plan that replaces or improves the Canon 1 reporting rule. They canparticipate in continuing legal education programs if they believe sucheducational efforts contribute to the competency of lawyers. They canwork for tougher bar admission standards if they think that will helpinsure that parties receive competent and zealous lawyers. They canset up a peer review system or a mandatory co-counseling system intheir own law office if they think that will contribute to better lawyeringwithin the legal system.

For another suggestion, consider Ethical Consideration 8-2:Rules of law are deficient if they are not just, understandable,and responsive to the needs of society. If a lawyer believes thatthe existence or absence of a rule of law, substantive or proce-

dural, causes or contributes to an unjust result he [or she] shouldendeavor by lawful means to obtain appropriate changes in thelaw.''It is the moral duty of a zealous representation lawyer to push a law tothe limits for a client, regardless of the lawyer's personal belief in themorality of the results the law allows. However, that same lawyer canand should, if he or she is to have a complete moral philosophy forpractice, devote efforts to changing laws that result in unjust or im-moral resolutions in the legal system. The zealous lawyer can thus fulfillthe first part of his or her moral duty, zealously representing the client,

41. MODEL CODEOF PROF. RESP. EC 8-2 (1983).


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The journal of the Legal Professionand deal with the second part, taking action that results in eliminatingthe moral compromise which would have occurred had the unjust lawbeen left for another zealous lawyer to use.

A complete moral philosophy of practice requires that the lawyernot stop short of his or her moral duty. Once the lawyer has adopted amorality for practice that requires for its success that the legal systemoperate as vigorously and competently as the lawyer, the lawyer needsto take action towards establishing the efficient operation needed formorality to be achieved. A system is only as moral as each of its parts.Furthermore, if one of those parts is a lawyer who strives to be moral,that lawyer will inevitably feel or sense the moral compromises of thesystem and be frustrated by them. To reduce the stress that is causedby the compromises and boundary setting, the zealous lawyer mustaddress the rest of the system's morality.he story is not that different for the integrity lawyer. The underly-ing premise of the integrity lawyer's theory of morality is the personaltruth and integrity of the lawyer. The integrity lawyer relies upon his orher personal moral standards for judging the truthfulness or integrity ofthe client, the means of representation and the ultimate goal of theclient. Moral compromise and uncertainty occur in two primary ways.First, similar to the zealous representation situation, when the rest ofthe system is not on the same moral wavelength as the integrity law-yer, truth and integrity may not achieve justice and morality. As is obvi-ous from this discussion, some moral lawyers are not integrity lawyers;further, not all integrity lawyers will agree on what truth and integrityrequires; finally, some lawyers are not moral at all! Thus, the opposinglawyer will not always be of the same moral persuasion as the integritylawyer, and the moral result anticipated by the truth and integrity moraltheory will not always occur. While the integrity lawyer is being carefulto be up front and honest, the opposing attorney may be using everyadvantage, including the advantage of facing an integrity lawyer. Thiswill not result in justice and morality.

Even if the opposing attorney is operating by the same standards,the rest of the legal system must cooperate. Integrity lawyers and integ-rity judges may not be sufficient to overcome an unjust and immorallaw. Or it may be the client who is the stumbling block. The client,incorrectly concluding that truthful disclosure would do the client harm,may be dissuaded from full disclosure to an integrity lawyer; the resultmay be unjust and immoral. Because the rest of the legal system is notalways cooperating, it is certain that morality will occasionally be sacri-ficed, instead of achieved, by a truth and integrity practice.


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The Moral Practice Of LawThe second major area of compromise and uncertainty occurs

when the integrity lawyer makes a mistake in moral judgment or drawsthe moral boundary too narrowly in the balance, or at least thinks heor she may have done so. Even assuming all is right with the world, andthat the system of justice is full to the brim with persons and laws striv-ing for truth and integrity, lawyers and lawmakers still make mistakes injudgments. Because the integrity lawyers will not always be right intheir own moral judgment concerning the client, the goal or the meansof achieving the goal, a moral client or a moral cause may suffer. Andthe integrity lawyer knows or senses this. The lawyer recognizes thatthere are bound to be some clients who are denied their moral duebecause the integrity lawyer, according to his or her own standards,made a mistake in drawing a boundary in the representation of thatclient, or because the system was not functioning to produce justiceand morality as a result of truth and integrity. Had the client gone to azealous representation lawyer, or an integrity lawyer further up thespectrum, the result might have been different. It may be because an-other lawyer would have analyzed the situation differently; it may bebecause the other lawyer would have decided "to hell with moralmeans" and done what was necessary for the moral client with themoral cause to win. Either way, the lawyer is left seeing the moral com-promise which occurred as a result of truth and integrity, or doubtinghis or her conclusions concerning truth and integrity and justice andmorality.

While the compromises of zealous representation tend to denysociety a moral system of justice, the compromises of truth and integ-rity tend to deny the individual client moral justice. Because some ofthe moral compromise and uncertainties are a result of the rest of thelegal system not being in line with the standards of the integrity lawyer,the lawyer can partially address these problems by following the man-date of the standards of professional responsibility to improve the legalsystem. Consistent with the premise of their moral theory, the integritylawyers should participate in activities that raise the level of truth andintegrity in the practice of law and in the laws themselves.

However, the integrity lawyer must also deal with the specificmoral compromise that may be dealt to the client when the lawyer'smoral judgment i s wrong (which inevitably it will sometimes be), orwhen the lawyer does everything as well as it can be done, but therest of the system has failed to cooperate fully (as it inevitably some-times will). The reason may vary. It may be that the client did not com-mit perjury, that the client's cause was just, or that the means neces-


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70 The journal of the Legal Professionsary for the client to get what he or she deserved was not immoral. Itmay be that the client and the cause were just and moral, but themeans of obtaining the client's goal was not. Whatever the cause, it isthe individual client who suffers from the resulting compromise.Perhaps someday there will be a set of certain professional stan-dards (which all lawyers will agree to) that will lead to justice and mo-rality with little moral compromise. In the meantime (which is as fardown the road as I can see) we must accept that we have a professionthat recognizes both zealousness and integrity as a moral means ofpractice, and a public that has good reason to assume either method ofpractice from the lawyer employed for representation. The possibilityof a client expecting to get zealous representation from a lawyer, andinstead, getting truth and integrity, requires addressing. Thus, to suc-cessfully and morally implement his or her moral theory for the practiceof law, the integrity lawyer must assume the additional moral duty ofdisclosing to the client that the lawyer practices according to a moraltheory of truth and integrity. Furthermore, the lawyer should let theclient know what the lawyer's notion of truth and integrity is.

Quite simply, the immediate best interest of the client is not themoral measurement of the integrity lawyer. In effect, what the lawyercreates with the implementation of the truth and integrity model ofpractice is an interest that potentially conflicts with the best interest ofthe lawyer's client. Because integrity lawyers endorse truth and integrityas the pathway to justice and morality, the necessary next step in im-plementing their theory of morality, disclosure of the conflict to theclient, should come easily. And, for the lawyer who needs the reassur-ance and authority of professional standards, the lawyer need look nofurther than Canon 5 of the Model Code, which incorporates a highstandard of integrity in its conflict of interest analysis. Canon 5 providesthat when a lawyer has an interest in something that competes with thebest interests of his or her client, whether it is a financial, business,property or personal interest, or the interests of another client of thelawyer, the lawyer must refuse or cease further representation unlesshe or she can "adequately" represent the client (in spite of the com-peting interest) and the client consents to the lawyer's representationwith full knowledge of the conflict.42

The first step in Canon 5 is understanding the conflict. In this case,the lawyer must recognize the inevitable compromise and uncertaintyin his or her moral theory. The frustration and moral stress of attempt-

42. MODEL CODEOF PROF. RESP. DR 5-101(A), 5-105(A)-(C)(1980).


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The Moral Practice Of Law 7 1ing to achieve a moral practice should easily lead to this recognition.The second step is making the determination that the lawyer can ade-quately represent the client in spite of the conflict. If not, the lawyershould withdraw or refuse to accept the client. Integrity lawyers havebasically decided this issue by choosing to implement the moral theoryof truth and integrity into their practice of law. As noted earlier, eachend of the morality spectrum has its outside limitations. Whichevercases and clients the integrity lawyer chooses to take and continues torepresent are presumably those cases for which the lawyer has deter-mined he or she can provide adequate representation and still maintainhis or her boundaries of truth and integrity. This does not mean therepresentation of the clients is not affected. It simply means that, whilethe client's interest is affected- r at least potentially affected- y aconflict of interest, the lawyer is still capable of providing adequaterepresentation.

As already discussed, there are doubts and uncertainties in thesedecisions, but drawing the boundary between truth and integrity andinadequate representation is necessary to stay on the spectrum ofmoral practice. Just as (moral) zealous representation lawyers have alimit beyond which they will not go in the name of zealous representa-tion, so too do integrity lawyers recognize such' a limit; their boundaryis inadequate representation. If, to be true to their guidelines for truthand integrity, it would be necessary to go beyond that boundary, thenthe moral integrity lawyer will refuse or withdraw from the case. For anobvious and simple example, consider that lawyers allow their clients toplead not guilty and put the government to its burden of proof evenwhen they know the client is guilty. Certainly integrity lawyers do notlet truth and integrity demand they tell the court that their client reallydid it! And if, by chance, they are that dedicated to truth as the path-way to justice and morality, and still want to remain on the spectrum ofmoral lawyering, they must decline the case.

I have little doubt that most integrity lawyers are at least vaguelyconscious of the thought process they undertake to get to this point inthe implementation of their moral theory for practice. Classifying thisprocess as a conflict of interest analysis, however, should reduce theirfrustration and moral stress by letting them see that they are not ignor-ing the shortcomings of their chosen moral course, and, in fact, areactively taking it into consideration when setting their boundaries. If thecompromise to the client is too much, the lawyer refuses the case.

The final step under Canon 5, which allows a lawyer to representor continue to represent a client when the lawyer has a real or poten-


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72 The Journal of the Legal Professiontial conflict of interest, is that which requires the lawyer to make fulldisclosure to the client of the conflict and to obtain the informed con-sent for continued representation. Classifying this step as an integralpart of their moral theory should relieve integrity lawyers of much ofthe stress that usually comes with their chosen theory of practice.While an integrity lawyer need not read a "truth and integrity state-ment of rights" t o the client, the lawyer can and should let the clientknow w hat kind of morali ty is practiced in the office. This is important ifthe integrity lawyer w ishes t o have a completed theory for his or herpractice of law; it is also important for reducing the stress that resultsfrom the compromises of an integrity practice. Because it is the individ-ual client who feels the compromises the integrity practice demands, itonly makes sense that the client should have the right to decide if thatis the sort of representation he or she wants. Additionally, it shouldtake a big burden off the integrity lawyer's shoulders t o kn ow that th eclient, who will potentially be affected, has consented to thecompromise.

As to what sort of disclosure is necessary, this is a matter that cansafely be answered by any lawyer who is conscientious and moralenough to get to this point of moral practice. But, to provide somesuggestion as to wha t might b e appropriate, the client can be to ld thatthe lawyer does not use deception in the practice of law, nor will thelawyer tolerate the client doing so. The lawyer should let the clientknow that if the facts of the case develop such that the client's inter-ests are compromised more than is wanted, the client is free, as always,to obtain new counsel, but that changing lawyers in the middle of acase may cause more ha rm than it prevents. Furthermore, replacing th eintegrity lawyer may not remedy all situations. If, for example, the in-tegrity law yer has already fallen under a m oral obligation - ccording tothat lawyer's moral philosophy- to reveal a fraud or perjury by theclient, withd rawal fr om the case may n ot relieve the lawyer fr om his orher moral obligation, and thus may not relieve the client of thecompromise.

It may be that truth and integrity lawyers will lose clients; I doubtvery much if the loss will be significant, and hopefully the gain in com-fort wil l be wo rth the loss. It may be that the client who leaves will g odown the street to a zealous representation lawyer and thus the m oral-ity and justice of the legal system- s the integrity lawyer sees it- renot increased b y the actions o f the integrity lawyer. O n the o ther hand,the integrity lawyer is addressing this problem too, by taking actions toincrease in general the truth and integrity of the system. The integrity


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The Moral Practice Of Law 73lawyer can feel comfort in knowing that all bases of compromise arecovered. The major stress for the integrity lawyer comes from knowingthat the lawyer's morality may shortchange a client, either from whatthe client's moral due is, or at least from what the client could haveobtained if represented by a zealous representation lawyer. The Canon5 disclosure practice deals with this stress.

Moral lawyers must do more than recognize and stay within thelimits of their chosen moral philosophy. They must also recognize theshortcomings of their theory when implemented and take action to ad-dress those shortcomings, thus creating the final tier needed for a com-plete moral practice. Whether a lawyer is committed to the truth andintegrity end of the spectrum or the zealous representation end, thelawyer can look to traditional standards and rules of professional re-sponsibility for guidance and support for this final step. The seeminglybenign ethical mandate to improve the legal system and to make legalcounsel available for all fits nicely into the zealous representation the-ory. The applicability of the standard analysis for conflict of interest res-olution to a truth and integrity practice is so easy it is all but invisible.But these long-standing directives of the legal profession take on newsignificance when viewed as the final building block of a moral theoryfor practicing law. The standards of our profession should be seen asproviding more than the bottom line for both types of moral lawyers,resulting in a large grey mass caught between conflicting precepts.They provide and should be recognized as providing the means of ad-dressing the inevitable compromise of any moral theory for practicinglaw.

Feeling as though I have exhausted the obvious with a barely per-ceptible gain, I cannot resist the compulsion to register a humble pro-test. I know I have not resolved the questions of validity or superiorityof role morality or personal morality for one's practice of law. Theseare not questions I wish to answer. I know I have not resolved theproblems of a moral zealous lawyer meeting a moral integrity law-yer-for society or for either of the lawyers! That is not a question Ifeel capable of answering. I have, however, offered a response to thelawyer who has chosen a spot on the spectrum of moral practice, butfeels the frustration of his or her efforts to achieve justice and moralityby that method. I believe that there is an answer for the stress of moralpractice for both ends of the spectrum, and that it has been in thelawyer's hands all along. It simply needs to be recognized and labeled


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The Journal o f the Legal Professionas an answer in order for i ts healing powers to take effect. Neithermoral system ne ed be p ro ve d superior, b ut lawyers, t o be moral, mustchoose the system they think is best and follow that theory.Most lawyers who have consciously chosen a moral theory fortheir practice, or w h o consistently but instinctively practice at one endof the spectrum or the other are likely t o engage in all of the activitiesand conflict-resolving mentioned. Truth and integrity lawyers, by theirmanner and practice, inform the community and their clients of theirguidelines for practice. Most lawyers participate in community serviceactivities, and zealous representation lawyers, who fervently believe inthe adversarial system, probab ly e nd u p choosing activities that contrib-ute to the morality of that system. However, in talking with lawyersabout the moral stress they experience in practicing law, I believe thatthere is a big difference between doing these activities because it is agood thing, a sensible thing, an ABA regulated thing, or even a moralthing, and perfo rm ing these activities as a conscious and integral par t oftheir chosen meth od o f moral practice. Recognizing the connection be-tween their theory of practice and the activities they choose to per-form as a "good member o f the bar," o r recognizing their words, ac-tions and manner as part o f a conflict o f interest resolution provides thefinal link necessary for their theory of moral practice to be complete.Being able t o say to oneself, "I k n o w m y practice results in moral com -promises here and there and I know I'm not always confident aboutthe decisions I must make as t o the limits and expanses o f m y moralguidelines, but I have chosen what I believe t o be the most m oral wayto practice law, and I have taken action t o d o what can be done aboutthe compromises that are inevitable w ith m y theory," is a big step inmoral practice. It i s plain and it is simple. But perhaps it will help morallawyers sleep better at night. And that will give them more energy thenext day to w or k fo r a moral and just system of law. While the systemwill always have its injustices and immoralities, it is bound t o get betterwith so many moral lawyers working so hard.

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A Proposal for the Moral Practice of Law by Kathleen s. Bean 03

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