Moral Responsibility in Professional Ethics

  • Gerald J. Postema
Part of the Contemporary Issues in Biomedicine, Ethics, and Society book series (CIBES)


Professionals generally acknowledge gravely that they shoulder special responsibilities, and believe that they should conform to “higher” ethical standards than laypersons.2 Yet, doctors, lawyers, engineers, and indeed all other types of professionals also claim special warrant for engaging in some activities that, were they performed by others, would be likely to draw moral censure.3 Skeptical of this claim to special license, Macaulay asked about lawyers (and most of my examples in this essay shall be drawn from law since that’s where my experience lies), “[w]hether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what, without these appendages, he would think it wicked and infamous to do for an empire.”4 This conflict may trouble the layperson, but for the professional who must come to grips with his or her professional responsibilities it is especially problematic.


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Notes and References

  1. 1.
    The concerns discussed in this essay were first suggested to me in discussions with several participants at the Institute on Law and Ethics sponsored by the Council for Philosophic Studies during the summer of 1977. Larry Alexander, Bernard Williams, and Gary Bellow were especially helpful. An earlier version of this essay was written as a background paper for the Philosophical Perspectives on Public Policy Project of the Center for Philosophy and Public Policy, the University of Maryland, College Park.Google Scholar
  2. 2.
    For example: “Lawyers, as guardians of the law, play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship with and function in our legal system. A consequent obligation of lawyers is to maintain the highest standards of ethical conduct.” ABA, Model Code of Professional Responsibility, Preamble, at 1 (1980) [hereinafter Code] (footnote omitted).Google Scholar
  3. 3.
    For examples, see text accompanying notes 11–15 infra.Google Scholar
  4. 4.
    T. Macaulay, “Lord Bacon,” in Critical and Historical Essays 2, (F. Montague, ed. 1903) 152.Google Scholar
  5. 5.
    Quoted in Curtis, “The Ethics of Advocacy,” Stan. L. Rev. 4 (1951) 20.CrossRefGoogle Scholar
  6. 6.
  7. 7.
    See M. Freedman, Lawyers’ Ethics in an Adversary System (Indianapolis, Bobbs Merrill, 1975) 27–42.Google Scholar
  8. 8.
    See Code, supra note 2, Canon 4, especially EC 4-1, EC 4-5, DR 4-101 (A), DR 4-101(B), DR 4-101(C)(3).Google Scholar
  9. 9.
    See id. Canon 7, especially EC 7-27, DR 7-102(A)(4), (5), DR 7-102(B)(l). Also see ABA Project on Standards Relating to the Prosecution Function and the Defense Function § 7.7 (Approved Draft 1971).Google Scholar
  10. 10.
    I borrow this term from R. Wassertrom, “Lawyers as Professionals: Some Moral Issues,” Human Rights 5, (1975) 2–8.Google Scholar
  11. 11.
    People v. Beige, 83 Misc. 2d 186, 372 N.Y.S.2d 798 (Onondaga County Ct.), aff’d mem., 50 A.D.2d 1088, 376 N.Y.S.2d 771 (1975), aff’d per curiam, 41 N.Y.2d 60, 359 N.E.2d 377, 390 N.Y.S.2d 867 (1976).Google Scholar
  12. 12.
    See Code, supra note 2, EC 4-1, EC 4-4. Also see Callan & David, “Professional Responsibility and the Duty of Confidentiality: Disclosure of Client Misconduct in an Adversary System,” Rutgers L. Rev. 29 (1976) 332. The prosecution argued that failure to report the deaths amounted to a criminal violation of the New York State Public Health Law, 83 Misc. 2d at 187, 372 N.Y.S.2d at 799, which would render disclosure permissible under DR 4-101(C)(2). On more general grounds, however, it is hard to imagine that the ends served by the Health Code could outweigh the demands of confidentiality, if consideration of the much more significant injury to the families of the murdered women could not.Google Scholar
  13. 13.
    242 F.2d 452 (7th Cir. 1957), cited in C. Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,” Yale L. J. 85 (1976) 1064 n. 13.CrossRefGoogle Scholar
  14. 14.
    The Zabella court reasoned that “[o]f course, the jury was justified in thinking that defendant who then was in a position of some affluence and was the Chief Executive Officer of the Chicago Savings and Loan Association should feel obligated to pay an honest debt to his old friend, employee and countryman. Nevertheless, we are obliged to follow the law of Illinois.” 242 F.2d at 455.Google Scholar
  15. 15.
    See Code, supra note 2, EC 7-1, DR 7-101(A)(l).Google Scholar
  16. 16.
    Perhaps one of the most serious general objections to Utilitarianism is that, although it professes to give full respect to all sources of value, it creates its simple normative structure by reducing all such values to a single dimension. The net effect is that either it distorts radically the world of human concerns, or it limits its scope to that range of values in which its simplifying assumptions are most natural.Google Scholar
  17. 17.
    T. Nagel, “The Fragmentation of Value,” in Mortal Questions (Cambridge: Cambridge Univ. Press, 1979) 134.Google Scholar
  18. 18.
    See Nagel, supra note 17, at 135.Google Scholar
  19. 19.
    See generally Aristotle, Nicomachean Ethics, bk. VI (H. Rackham trans. 1962).Google Scholar
  20. 20.
    See S. Hampshire, Two Theories of Morality (Oxford: Oxford Univ. Press, 1977) 29–39; Nagel, supra note 17, at 135Google Scholar
  21. 20.
    See also Hampshire, “Public and Private Morality,” in Hampshire, ed., Public and Private Morality (Cambridge: Cambridge Univ. Press, 1978), pp. 29–33.Google Scholar
  22. 21.
    I borrow this example, for an entirely different purpose, from B. Williams, “Moral Luck,” Proc. Arist. Soc. Supp. 50 (1976) 124.Google Scholar
  23. 22.
    One aspect of the failure of professionals in law to appreciate the moral costs of their actions is captured by G. K. Chesterton in “The Twelve Men,” in Tremendous Trifles (1955) 57–58: [T]he horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.Google Scholar
  24. 23.
    See G. Haydon, “On Being Responsible,” Phil. Quart. 28 (1978), 46–57.CrossRefGoogle Scholar
  25. 24.
    This appears to be the approach suggested by Wasserstrom. See Wasserstrom, supra note 10, at 12.Google Scholar
  26. 25.
    A useful formal discussion of exclusionary reasons can be found in J. Raz, Practical Reasons and Norms (London: Hutchinson Univ. Press, 1975), pp. 35–48.Google Scholar
  27. 26.
    By “conceptions of the lawyer’s role,” I do not mean some abstract model of a lawyer’s professional behavior. Rather I have in mind the more or less complex pattern of beliefs and attitudes that tend to structure one’s practical judgment and one’s view of one’s actions and relations to others, i.e., the view of one’s self in the role. Although there is a personal or idiosyncratic element in any person’s conception, nevertheless, because the role of lawyer is largely socially defined, significant public or shared elements are also involved. I shall concentrate on these latter elements, keeping in mind that they are shared elements in an individual’s self-conception in the role.Google Scholar
  28. 27.
    Although my argument has general implications for the evaluation of conceptions of many professional roles, I shall restrict my attention here to what I shall call the standard conception of the lawyer’s role.Google Scholar
  29. 28.
    Samuel Johnson is often quoted with approval in support of this idea: “ ‘[A] lawyer has no business with the justice or injustice of the cause which he undertakes, un less his client asks his opinion, and then he is bound to give it honestly. The justice or injustice of the cause is to be decided by the Judge.’” Boswell’s Journal of a Tour to the Hebrides, Aug. 15, 1773, at 14 (F. Pottee & C. Bennett eds. 1936) (quoted in M. Freedman, supra note 7, at 51).Google Scholar
  30. 29.
    J.-P. Sartre, “Existentialism” in Existentialism and Human Emotions (New York: Washington Square Press, 1957), pp. 9–51.Google Scholar
  31. 30.
    See generally id. and J.-P. Sartre, Being and Nothingness (New York: The Philosophical Library, 1966) 86–116.Google Scholar
  32. 31.
    E. Goffman, Encounters (Indianapolis 1961) 87–88.Google Scholar
  33. 32.
    Consider, for example, the epitaph on a Scottish gravestone: “‘Here lies Tammas Jones, who was bom a man and died a grocer.’” D. Emmet, Rules, Roles and Relations (London: Macmillan, 1966) 154Google Scholar
  34. 32.
    W. Sperry, The Ethical Basis of Medical Practice (London, 1951) 41.Google Scholar
  35. 33.
    I am indebted to Bernard Williams’ lectures at the Institute on Law and Ethics sponsored by the Council for Philosophical Studies in 1977 for the remarks at this point.Google Scholar
  36. 34.
    Curtis, supra note 5, at 22 (1951) [quoting R. Ellman, Yeats (1949) 178].Google Scholar
  37. 35.
    See G. Bellow and J. Kettleson, “The Mirror of Public Interest Ethics: Problems and Paradoxes,” in Professional Responsibility: A Guide for Attorneys (ABA, 1978), pp. 257–258: At the root of the dilemma is a professional ethic that requires a sharp separation between personal and professional morality. The lawyer is asked to do “as a professional” what he or she would not do “as a person”; to subordinate personal qualms about results in particular cases to the general rule of law and the bar’s role within it. There is much to be said for such a combination of responsibility and neutrality, if the “law job” is to be performed. But it may be that over time, such a division between the personal and the professional will atrophy those qualities of moral sensitivity and awareness upon which all ethical behavior depends.Google Scholar
  38. 36.
    See Elkins, “The Legal Persona: An Essay on the Professional Mask,” Va. L. Rev. 64 (1978) 749, which argues that the pressure upon lawyers to identify with their role comes from a number of pervasive factors, including linguistic factors, specialized modes of reasoning, and even characteristic clothing styles.CrossRefGoogle Scholar
  39. 37.
    As a result, serious questions arise when the lawyer acts negligently or irresponsibly. Is the client, thereby, committed to the consequences of such actions, of which the client may not have been aware or did not approve? In general, the client is committed; failure of counsel to appear or respond may result in a default judgment as effectively as if the client never retained counsel in the first place. See L. Mazor, “Power and Responsibility in the Attomey-Client Relation,” Stan. L. Rev. 20 (1968), 1121–23, 1124 and n.24.CrossRefGoogle Scholar
  40. 38.
    Wassertrom, supra note 10, at 14.Google Scholar
  41. 39.
    See generally W. Simon, “The Ideology of Advocacy: Procedural Justice and Professional Ethics,” Wis. L. Rev. 1978 3, 96; Code, supra note 2, DR 7-106(C)(4) (attorney prohibited from expressing personal opinions regarding, inter alia, the justness of a cause).Google Scholar
  42. 40.
    See note 35 supra.Google Scholar
  43. 41.
    Cf. A. Neier, Defending My Enemy (1979) (belief in the higher value of the legal system qua system necessitates defending persons and causes antithetical to the lawyer’s own beliefs).Google Scholar
  44. 42.
    This point was suggested to me by Philippe Nonet.Google Scholar
  45. 43.
    See generally R. Dworkin, Taking Rights Seriously, (Cambridge, Mass.: Harvard Univ. Press, 1978)Google Scholar
  46. 43.
    H.L.A. Hart, The Concept of Law (Oxford: Oxford Univ. Press, 1961) pp. 199, 205–207Google Scholar
  47. 43.
    D. Richards, The Moral Criticism of Law (Encino, Calif.: Dickenson, 1977), pp. 31–36.Google Scholar
  48. 44.
    See text accompanying note 34 supra.Google Scholar
  49. 45.
    See text accompanying notes 16–20 supra.Google Scholar
  50. 46.
    This may explain, in part, the attitude of “ethical minimalism” among lawyers which many, both within and outside the profession, deplore. This minimalism is an understandable reaction, in light of the fact that there are few fixed and settled rules in the Code and the lawyer is effectively cut off from the resources needed to resolve the indeterminacies unavoidably left by the Code.Google Scholar
  51. 47.
    See pages 41–42 supra.Google Scholar
  52. 48.
    B. Williams, “Politics and Moral Character,” in Hampshire, Public and Private Morality, supra note 20 at 64. Milgram’s well-known experiments underscore the commonplace that the more we are able to distance ourselves (often literally) from the consequences of our actions, the more we are able to inflict pain and suffering on others without moral qualms. See generally S. Milgram, Obedience to Authority: An Experimental View (New York: Harper and Row, 1974), pp. 32–43.Google Scholar
  53. 49.
    Fried, supra note 13, at 1071–72.Google Scholar
  54. 50.
    Tammas Jones, see note 32 supra, was not just a grocer; he was also, inter alia, a father, husband, friend, and neighbor. It was possible for him to relate to his family, customers, neighbors, and friends, not as a role-agent, but as a person, because it could have been recognized that his moral personality penetrated through his activities in his roles, and that these roles did not exhaust that personality.Google Scholar
  55. 51.
    E. Goffman, supra note 31, at 142.Google Scholar
  56. 52.
    David Hoffman, a nineteenth century legal educator in Maryland, offered a conception of lawyering in which the lawyer’s sense of responsibility was central. D. Hoffman, A Course of Legal Study 2 (2d ed. Baltimore, 1836) (I am indebted to Michael Kelly for this reference.). Hoffman wrote: “My client’s conscience, and my own, are distinct entitites: and though my vocation may sometimes justify my maintaining as facts, or principles, in doubtful cases, what may be neither one nor the other, I shall ever claim the privilege of solely judging to what extent to go.” Id. at 755. Furthermore, he insisted that: Should my client be disposed to insist on captious requisitions, or frivolous and vexatious defences, they shall be neither enforced nor countenanced by me ... If, after duly examining a case, I am persuaded that my client’s claim or defence ... cannot, or rather ought not, to be sustained, I will promptly advise him to abandon it. To press it further in such a case, with the hope of gleaning some advantage by an extorted compromise, would be lending myself to a dishonourable use of legal means, in order to gain a portion of that, the whole of which I have reason to believe would be denied to him both by law and justice. Id. at 754.Google Scholar
  57. 53.
    S. Kadish and M. Kadish, Discretion to Disobey (Stanford: Stanford Univ. Press, 1973), pp. 31–36.Google Scholar
  58. 54.
    See id. at 33–34.Google Scholar
  59. 55.
  60. 56.
    Id. at 35.Google Scholar
  61. 57.
    Id. at 35–36.Google Scholar
  62. 58.
    See Fried, supra note 13, at 1066 n.17.Google Scholar
  63. 59.
    See M. Freedman, “Personal Responsibility in a Professional System,” Cath. U. L. Rev. 27 (1978), pp. 193–95.Google Scholar
  64. 60.
    Code, supra note 2, DR 2-109(A)(1).Google Scholar
  65. 61.
    Id. DR 2-109(A)(2).Google Scholar
  66. 62.
    Id. EC 2-30.Google Scholar
  67. 63.
    Id. EC 2-26.Google Scholar
  68. 64.
    See id. DR 2-110(C).Google Scholar
  69. 65.
    Id. DR 2-110(C)(1)(a). Withdrawal is permitted for a number of other reasons, all unrelated to the present argument. These include, among others, failure by the client to pay fees, DR 2-110(C)(1)(f), and inability to work effectively with co-counsel, DR 2-110(C)(3).Google Scholar
  70. 66.
    Id. DR 2-110(C)(1)(b), (c).Google Scholar
  71. 67.
    Id. DR 2-110(B)(1). Withdrawal is mandated for a variety of morally neutral reasons, such as a conflict of interest with another client whom the lawyer is representing, DR 2-110(B)(2); see DR 5-105, or the lawyer’s ill health, DR 2-110(B)(3).Google Scholar
  72. 68.
    Id. EC 2-30.Google Scholar
  73. 69.
    The Code does allow permisive withdrawal, however, if the client insists that the lawyer engage in conduct that is contrary to the lawyer’s advice and judgment and the matter is not before a tribunal. Id. DR 2-110(C)(1)(e).Google Scholar
  74. 70.
    Fried, supra note 13, at 1073.Google Scholar
  75. 71.
    Id. at 1075.Google Scholar
  76. 72.
    Id. at 1073.Google Scholar
  77. 73.
    Id. at 1082–86.Google Scholar
  78. 74.
    Id. at 1084–86.Google Scholar
  79. 75.
  80. 76.
    Id. at 1085.Google Scholar
  81. 77.
    Id. at 1086.Google Scholar

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© The Humana Press Inc. 1983

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  • Gerald J. Postema

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