Oregon State Bar Bulletin — JULY 2013



On Professionalism

The Authentic Self:
Moral Dissonance and the Practice of Law
By Don Lundberg



Prologue

I was flattered to be asked to speak to the participants in the Indiana University McKinney School of Law’s National Professional Responsibility Moot Court Competition on March 15. It is in its second year and is the only national moot court competition with a focus on professional responsibility. There are any number of technical topics that could be the theme of such a speech. I chose, instead, to talk about lawyers. After all, the entire field of legal ethics is about how lawyers balance and reconcile competing demands on them from clients, courts, opposing parties, third parties and others. Think of this column as a rough draft of the speech that will have been presented in final form by the time it appears in print. I have written about similar topics before and apologize to readers who have grown tired of the subject.

Introduction

One common conception of the role of the lawyer is that of an amoral client agent. That is, a lawyer acts in service of the client’s needs and interests and subverts his own worldview as a moral actor to the client’s. Lord Brougham is famously quoted as saying:

[A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazard and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others.

2 Trial of Queen Caroline 8 (London, J. Robins & Co. Albion Press 1820-21).

As a modern construct, this overstates the case, of course. We are directed by the Rules of Professional Conduct in many instances to curb our zeal for clients in favor of duties to others. That may be easy to say, but any lawyer who has been faced with a difficult ethical dilemma will admit that de-prioritizing client interests in favor of others is daunting work.

As regards our own interests as independent moral actors, fortunately those interests usually align with our client’s. Occasionally they conflict, which is distressing. That is the topic of this column.

Moral Dissonance

No lawyer can credibly say he has never had a fundamental disagreement with a client over the basic morality of the client’s cause. I call this friction between lawyer and client perspectives “moral dissonance.” Moral dissonance is not something to be taken lightly. We can tolerate a certain amount of it in our professional lives, but too much of a disconnect between our personal values and the values we promote as client advocates leads to profound unhappiness or cynicism.

Part of the hard work of lawyering is to develop mechanisms to cope with the moral dissonance we inevitably experience. We do so by turning down clients or withdrawing from certain legal representations. We find other ways to bridge the gap between our own values and those of our clients by, for example, seizing on other important, but more abstract, reasons why our work is worthwhile — such as, perhaps, in the case of criminal defense lawyers, it protects individuals from the dangers of unchecked power of the State.

Differing Values as a Conflict of Interest

Sometimes moral dissonance has implications for our duties under the Rules of Professional Conduct. Rule 1.7 tells us that we must decline to represent clients if there is a significant risk that our own interests will materially limit our representation of clients. Does this mean that lawyers are faced with a binary choice to represent clients in complete disregard of our own moral sensibilities or to not represent them at all? In certain cases, yes, but the Rules of Professional Conduct leave room for lawyers to bring their own moral values into play in representing clients — a topic I would like to discuss. Lawyers do not have to be moral eunuchs.

Lawyer as Ethical Provocateur

A rarely considered Rule of Professional Conduct is Rule 2.1, which describes the role of the lawyer as client advisor. It states: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”

Lawyers are not permitted to use their own moral sensibilities to trump client instructions that are legal and do not violate the Rules of Professional Conduct. That would be a conflict of interest. But lawyers are encouraged by the rules to engage in moral dialogue with clients to assist them in thinking through the choices to be made during a legal representation.

That said, this is something that lawyers must approach with great humility. Lawyers who arrogantly believe they have a corner on the morality market are more dangerous to clients than lawyers who shy away from bringing moral and other nonlegal considerations into play in counseling their clients.

Moral Repugnance and Terminating Representation

There are other points at which the Rules of Professional Conduct explicitly give lawyers room to exercise moral decision-making. One of them is whether to continue representing a client. Rule of Professional Conduct 1.16 discusses when a lawyer must or may terminate a client representation. If the client’s instructions are ones that the lawyer cannot carry out for moral (but not legal or rule-based) reasons, the lawyer has a material-limitation conflict of interest under Rule 1.7(a)(2) and must terminate the representation.

Even if a lawyer is not required to terminate the representation, he is permitted to do so, even if doing so has a material adverse effect on the client’s interests, if the “client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.” Rule 1.16(b)(4). And if terminating the representation will not have an adverse effect on the client’s interests, the lawyer may terminate a client representation for any reason, including moral concerns that fall short of repugnance. Rule 1.6(b)(1).

The lawyer who chooses to continue representing a client willingly accepts the role as the client’s champion, in the words of Lord Brougham, “at all hazard and costs to … himself” — mostly. I say “mostly” because there is a seeming exception in a comment to a Rule of Professional Conduct that appears at first blush to allow the lawyer’s own sense of right and wrong to trump the client’s. This exception is worth exploring in some detail because it highlights the lawyer’s versus the client’s role in making the many decisions presented during the course of a legal representation.

Receiving an Inadvertently Sent Document

I am referring to Rule 4.4(b), which discusses a lawyer’s receipt of an inadvertently sent document. The rule states that upon receipt the lawyer “shall promptly notify the sender.” It doesn’t say what else the receiving lawyer is to do or refrain from doing because those duties are governed by other law (if at all), not the Rules of Professional Conduct. Prominently, one unaddressed question is whether the receiving lawyer should destroy or return the inadvertently sent document unread. Comment (3) to Rule 4.4 states: “Some lawyers may choose to return a document unread. … Where a lawyer is not required by applicable law to do so, the decision to voluntarily return such a document is a matter of professional judgment ordinarily reserved to the lawyer. See Rules 1.2 and 1.4.”

The citations to Rules 1.2 and 1.4 are a bit puzzling. Rule 1.2 — primarily subpart (a) — deals with the allocation of authority between lawyer and client. Rule 1.2(a) allocates to the lawyer the authority to decide, in consultation with the client, the means by which the client’s objectives are to be pursued. It cites Rule 1.4, which similarly requires in subpart (a)(2) that the lawyer consult with the client about the means for accomplishing the client’s objectives. The respective decision-making responsibilities of lawyers and clients addressed in Rules 1.2(a) and 1.4(a)(2) arise often — not just when a lawyer received an inadvertently sent document.

Client Consultation

Does Rule 4.4, Comment (3)’s reference to professional judgment ordinarily reserved to the lawyer mean to suggest in a very elliptical way that the receiving lawyer may return the document unread to the sender without letting the client know that is what he plans to do? I would suggest that it is the gutsy lawyer who takes on this decision without consulting the client. It is, however, appropriate and probably mandatory that the lawyer enlist the client in a discussion about the legal consequences of reading an unread, inadvertently-sent document because reading it with no further consideration could result in disqualification of counsel or other undesirable consequences.

The lawyer might view it as a professional courtesy to destroy or return the document unread — reasoning under the Golden Rule that the situation could easily be reversed. The client might understandably see it differently. After all, the client does not have anything close to the lawyer’s institutional stake in getting along professionally with one’s opposing counsel. This disparity in perspectives between lawyer and client might present another opportunity for moral dialogue with the client.

If, in the end, the client will not yield to the lawyer’s professional judgment to not exploit the error and if the lawyer is unwilling to compromise on an important point of personal values by using the document, the lawyer is thrown back into Rule 1.16(b) to assess whether withdrawal from representation is required. One thing the lawyer cannot do is disregard the client’s instructions after consultation about how the inadvertently sent document is to be used.

Means Versus Ends

Rule 4.4(b) is but one circumstance where a client and a lawyer could come to loggerheads over what means should be employed to achieve the client’s ends. There isn’t anything unique about handling the receipt of an inadvertently sent document compared to other lawyer-client disputes over the means to be used to accomplish the client’s objectives. It is merely that Comment (3) to Rule 4.4 invites a careful examination of the allocation of authority over the means and objectives of client representations.

Consultation with the client on any means-related matter always creates a risk that the lawyer and the client will be at odds. Part of a well managed lawyer-client relationship is for the lawyer to be an effective communicator and educator, including appropriate use of moral suasion, to get the client to accept the lawyer’s approach. Sometimes, notwithstanding the lawyer’s best efforts, the lawyer and the client cannot see eye-to-eye on how the client’s matter is to be handled. It is untenable for the lawyer to defy the client’s expectations. The lawyer is left to choose between acquiescing in the client’s preferred approach or terminating the representation.

Room for Moral Choice

As mentioned, a lawyer’s personal moral values can be brought to bear in engaging in a moral dialogue with a client, but they cannot be allowed to trump client decision-making. Lawyers are not thereby left without room to engage in moral decision-making in the practice of law. For example, every time a lawyer agrees to represent a client she makes a choice to do something she is not required to do. American lawyers, unlike their British barrister counterparts who provide legal services under the cab rank rule (next person in line gets the lawyer), are broadly free to accept or reject clients for almost any reason. (Although we cannot do so for reasons exhibiting bias or prejudice based upon certain factors specified in Rule of Professional Conduct 8.4(g)). It is inescapable then that we are morally accountable to ourselves for all choices we are free to make, including whom to serve as our clients.

But there are other choices that have a moral dimension and that come into play long before we get to the question of client choice. For example, in what setting will we practice law? What kind of law will we practice? What type of clients will we represent, and what other lawyers will we join with to practice law? Let me reemphasize that there is no objectively right or wrong choice to be made in this regard. This is about the dissonance between personal moral values and the practice of law. A law practice setting that is an existential nightmare for one lawyer might be perfectly acceptable to another.

Core Professional Values

There is, in fact, a moral choice presented in the very decision to become a lawyer — although I suspect that few law students are attuned to it even after their course in professional responsibility. To become a lawyer is to agree to follow the law and the Rules of Professional Conduct. Most of us would give little thought to the significance of that agreement. But the Rules of Professional Conduct impose a hierarchy of moral and ethical values that not all lawyers would readily reach on their own.

Take the not-so-simple example of client confidentiality. As lawyers we are duty bound to protect client confidences, in the words of Indiana’s oath of attorneys, “at every peril to myself.” Rule of Professional Conduct 1.6(b) creates certain exceptions for keeping client information confidential, but they arise only in unusual situations. For the most part, our clients’ information must go to the grave with us. Such a profound commitment to client confidentiality could easily run counter to what we think is important in life in certain circumstances. The general rule on keeping client information confidential governs us as lawyers.

We do not have the freedom to pick and choose when it doesn’t because it conflicts with our personal moral sensibilities. This is just one example of how the Rules of Professional Conduct are laden with moral content. When we sign on to be lawyers, we accept those moral values as governing our professional lives. If we’re not up to the task, it might be better to find another line of work.

Conclusion

Becoming a lawyer is itself a choice that has moral content — just as becoming a physician or engineer is an acceptance of the core values of those professions. We often don’t think about it at the time, but the possibility for dissonance between who we are as persons and what we are called upon to be as professionals quickly becomes apparent. By choosing to become lawyers, we accept a role that is largely, but not exclusively, that of an amoral agent for our clients. We can respond by embracing that amoral role and learning to switch off our personal values when we enter our real or virtual law offices. I believe that a total disconnect between who we are and what we do will eventually emerge in unhealthy ways. It is far better to be thoughtful about the interplay between our authentic selves and our professional obligations and to look for the many opportunities to integrate the two.

 

ABOUT THE AUTHOR
Don Lundberg is a partner in the Indianapolis office of Barnes & Thornburg, where he is a member of the firm’s litigation department and serves as the firm’s deputy general counsel. His article first appeared in the March 2013 issue of Res Gestae, a publication of the Indiana State Bar Association, and is reprinted with permission.



© 2013 Don Lundberg

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