My last ethics column (“Moral neutrality is no longer enough,” Canadian Lawyer, February 2009) argued that lawyers should take into account the values and well-being of their community. I mentioned “cause lawyers,” members of the legal profession who commit themselves to furthering a personal vision of a good society. The column didn’t seem all that radical to me, but some readers took strong exception.
A tax practitioner (who, he said, had been practising tax law for 30 years) e-mailed that the cause lawyer concept “is just one more method that those who propagate politically correct action will use to constrain economic [read the market] activity to redesign society the way they see it.” After explaining that tax evasion (that’s right, tax evasion, not just avoidance) was a useful social activity, because an individual makes better use of the income he earns than any government, my tax practitioner correspondent concluded, “I suggest you get your facts right or perhaps you even acquaint yourself with the facts. . . .”
Another e-mail came from a senior and distinguished litigator, who seemed to be writing more in sorrow than in anger: “Perhaps one day you will write a column on the cause lawyer, often (or usually) single issue fanatics, who get so taken up with the cause that they have no shred of objectivity in advancing it, and thereby do a disservice to the cause, the courts, the profession, and themselves.” Ominously, he wrote, “I wonder if your view of lawyer morality would be the same if you needed to retain a lawyer.”
Why are people riled up? Perhaps it’s because they think my earlier article implied that there are only two kinds of lawyers, cause lawyers and guns for hire, and that the first is morally superior to the second. It might follow, I suppose, that a member of the legal profession should sign on to cause lawyering if he wants to be good person. That’s too much for anyone to swallow. Let me quote from T.S. Eliot’s poem The Love Song of J. Alfred Prufrock: “That is not what I meant, at all.”
I don’t think anyone wants to deliver the legal profession to single-issue fanatics. Although, let’s not forget that some of those single-issue fanatics have latched onto a pretty important single issue to be fanatical about — the wrongfully convicted, for example. But surely you can reject the extremes of cause lawyering without rushing helter-skelter to the other end of the spectrum, into the full and seductive embrace of the gun-for-hire alternative. Where might one reasonably stop along the way?
Many lawyers find moral neutrality — objectivity, if you want to call it that — the most appropriate stance. The job of a lawyer, they say, is simply to represent the client; what the lawyer thinks of the client and his case, from the point of view of morality or community values, is irrelevant. Everyone, no matter how abhorrent, is entitled to legal representation.
When Ramsey Clark, U.S. attorney general under president Lyndon Johnson, joined Saddam Hussein’s defence team, he was savagely attacked. His response? “That Hussein and other former Iraqi officials must have lawyers of their choice to assist them in defending against the criminal charges brought against them ought to be self-evident among a people committed to truth, justice, and the rule of law. . . . [A lawyer] should accept such service as his highest duty.” Ironically, many cause lawyers would recognize and endorse this sentiment. It is, after all, a personal commitment to a cause.
But moral neutrality, acceptable as it may be in general, doesn’t mean that a lawyer should subvert the values of his society, or be blind to its best interests. Canadian law societies make this plain in their rules. The Canons of Legal Ethics of the Law Society of B.C., for example, says that “it is a lawyer’s duty to promote the interests of the state,” and that “a lawyer owes a duty to the state, to maintain its integrity and its law.” Note, not just its law — its integrity as well. The Rules of Professional Conduct in Ontario say that, when acting as an advocate, the lawyer shall not “knowingly assist or permit the client to do anything that the lawyer considers to be dishonest or dishonourable.”
In a paper entitled “A Lawyer’s Duty to Society,” delivered to a 2008 Ontario Advocates’ Society symposium on professionalism, Sylvia Corthorn and Reena Goyal drew a distinction between the “thin” and “thick” views of professionalism. People who believe in the “thin” view argue “that there is no residual duty to society if the lawyer’s duties to the client, the courts, and the law are discharged.” The “thick” view, on the other hand, requires that the lawyer’s duty to society be paramount: “To act in a way that might reasonably be forseen to be contrary to the public interest is inconsistent with the defining characteristic of a profession.” The Corthorn/Goyal paper implies that law society rules favour the thick view. This may come as a surprise to lawyers who like to argue in favour of moral neutrality and consider themselves to be in the mainstream.
As for me, I’m sticking to my guns. I think it’s very hard, for example, for a lawyer to justify, on the grounds of moral neutrality, having been a cog in the machine that packaged and sold collateralized debt obligations (CDOs) made up of sub-prime mortgages unlikely ever to be paid. These CDOs were irresponsibly graded by rating agencies enmeshed in conflicts of interest, and were then off-loaded onto unsuspecting buyers who didn’t really understand what they’re getting. Ignorance is the usual defence in this and similar cases (who knew?), but what about due diligence, a concept much loved by the legal profession (at least, when it comes to other people)?
And as for it being okay for a lawyer to help a client evade taxes — puhleese!
Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com