318: Professional Ethics
Outline of Wasserstrom Essay
Lawyers are often criticized as (1) amoral and (2) paternalistic.
These arise from accepting a role-differentiation that is also found with other professions.
ASSUMPTION: A professional adopts the role of supporter of the client's interests (as recognized by the client, not the professional), and so to PREFER them to the interests of other people.
Example: Personally , a defense lawyer disapproves of rules of evidence for rape cases. But if that lawyer has a defendant accused of rape, the lawyer is obligated to us those rules of evidence if they favor the client's defense. Provided that what the lawyer is asked to do is not illegal, and the means to do it are legal, the lawyer has a duty to become an amoral agent on behalf of the client.
Put another way, the professional must learn to be indifferent to many of the consequences of his/her behavior, because supporting the interests of the client often harms others. The professional must learn to ignore this fact, and become an amoral agent.
The very ROLE of the lawyer qua lawyer is amoral if the lawyer is to succeed. (Also discusses role of the medical doctor to improve health of every patient, no matter why they are sick or who they are.)
Argument against changing this: We have an adversarial system. To expect lawyers to impose their own values would be to undercut democracy, for their values would tend to coincide and so would limit legal protection for the many people whose values are different from theirs.While the criminal defense system might be advanced by an amoral, adversarial stance, it is not clear that the rest of the legal profession should be this way, or professionals generally!
W's arguments against role-specific, amoral professionals:
PATERNALISM: where the above problems arise from a concern for the client's interests, a different issue arises from the relationship of inequality the holds between professional and client. It is intrinsic to the relationship that the professional knows more than the client. Generally, the professions are self-regulating. Clients are not in position to effectively evaluate the professionals they hire. The professional cannot see the client as an equal, nor as a whole person.
The client is weak and vulnerable.
Again, we have a psychological problem: how to prevent the professional from seeing the client as "more like a child than an adult"? The lawyer is "centrally interested" in PART of the client's life, the part that's relevant to the case at hand.
PROPOSED SOLUTION: (1) Professions should be de-professionalized! The process should be simplified, so that more of the process can be handled by people without the need for a lawyer. (2) Lawyers should be trained to interact with clients in a more equitable relationship.
Last updated Feb. 1, 2016