PROFESSIONAL ETHICS AND PERSONAL ETHICS

by Alvin Esau, Professor of Law and Director of the LRI, University of Manitoba.

(Excerpts from inaugural Murray Fraser Lecture on Professional Responsibility given at the Faculty of Law, University of Victoria on March 1, 1989.)

I. INTRODUCTION

Recently I saw a newspaper cartoon which portrayed George Schulz meeting with Yazer Arafat, and a warm and smiling Arafat was saying, "Yes, Yes, we tried to kill you in Jerusalem last March....But c'mon George, it's only politics.. nothing personal!"

Whatever the truth or not of that cartoon to the actual politics of the Middle East, I think it illustrates something that we can both identify with in terms of our experience of roles we take on in the world, and at the same time it illustrates the moral disquiet we often feel toward claimed role justifications. I think most law students have an uneasy feeling that descends upon them when they struggle with some of the conventional role demands of lawyers and the role justifications we offer for them. When we talk about tactics of winning in priority to truth telling; when we talk about helping the client and discounting the harm to others in doing so; and when we talk about procedural manoeuvers at the expense of substantive merits; we are not quite satisfied with "C'mon mom it's only lawyering... nothing personal."

Before embarking into my lecture, I want to say just a few words about where I am coming from. Last year I delivered a lecture here in Victoria entitled, "Conscientious Objection in the Practice of Law", which was subsequently published in Headnotes and Footnotes, a publication of the Manitoba Bar Association. In that lecture, I basically argue that lawyers should not represent client goal's that they fundamentally consider to be immoral, even if they are legal, and that lawyers should not advance client ends by using morally objectionable means, even if the means are now conventionally acceptable in the profession. I then defend this overall view from a host of obvious objections that could be leveled against it. I also argue for conscientious objection to the demands of legal superiors, recognizing that lawyers practice by and large on teams rather than independently. Lastly, I argue for conscientious objection to some lawyer styles of life that I think are destructive to both personal and professional relationships.

While I have not changed my mind over the last year, I have come to realize that there is an incoherence at the root of my lecture, because I have as yet not adequately come to grips with the more basic questions of our political and legal ideology. The incoherence is that part of my defense of conscientious objection in the practice of law involves criticisms of conventional liberal legalist individualistic ideology in society, and yet in the end, part of my very defense of conscientious objection rests on constructing that very same structure of liberal individualist ideology within the profession itself. This is simply the mirror image of the incoherence that already lies at the root of the conventional professional ethics approach, where role demands within the profession are presented as a matter of social solidarity, with the role viewed as demanding largely fixed, inflexible, cemented into place obligations of the professional to society and to the professional community, but then these same role demands are justified by their advancement of a full bodied libertarian political ideology in society with affirmations of atomistic freedom to shape life largely free from the constraints of community solidarity. So we have a knot that needs to be untied in any case.

Now today, however, rather than plowing and planting the same field that I did last year, I want to construct some fences. That is, I want to draw some fences around various fields particulary by looking at some of the literature published since my talk last year. Today, I want to deal with the dynamics between personal ethics and professional ethics in relation to lawyering by sketching briefly three basic paradigms which I call first, robust differentiation, second, reduced differentiation, and third, reconceptualized differentiation. The paradigm that I want to ultimately fence off and defend is a fourth one called rejected differentiation, but such a paradigm, to have any transformative power, must take into account the strengths and weaknesses of these other three.

II. ROBUST DIFFERENTIATION

A. CONSTRUCTING THE FENCE

First of all then the paradigm of robust differentiation. The idea of a robust differentiation between personal ethics and professional ethics, between ordinary ethics and the special ethics of professional role is not an idea confined to the legal profession, but rather is well known in the literature and ideology of every profession.

That the idea of role differentiation is pervasive in the literature on professional ethics is not surprising to us, because I think it actually captures and connects with a fundamental truth of moral reasoning generally. But this is both its strength and its danger. Danger because the partial truth of role differentiation is easily blown into a full bodied robust role differentiation that goes beyond the truth it captures.

By robust differentiation we mean something more than the notion that our moral norms must always be applied to particular situations in particular contexts, and that different situations and contexts give rise to unique factors of moral relevance. Whatever controversy exists about the possibility of justifying our moral notions about right and wrong beyond the particularities of our own personal and cultural socialization, it is a truism that we all find ourselves in situations or in dilemmas where we violate some moral rule that we would ordinarily affirm because we believe that in this particular situation we must do so to affirm other moral values and norms that we also affirm and which outweigh the moral value of following the rule.

We might say, then, that professional ethics and personal ethics are not necessarily two different ethics at all, but rather that what we are doing is simply applying personal ethics or, dare I say it, common morality, to the particular situation of acting in the context of the professional role, a context which gives rise to a multitude of morally relevant factors to consider that may or may not exist in the same way in some other context outside the professional role. We might say in other words that what goes for role morality should more properly be classified as ordinary moral reasoning contextualized into a specific situation. Professional codes of ethics should be seen simply as collective attempts to contextualize ordinary morality into the particular sphere of lawyer, client, and legal system affairs.

If this is all we mean by role differentiation, than the claim is a relatively modest one in terms of any differentiation of personal ethics and professional ethics. I may say for instance that personal moral reasoning in professional context is all that is involved if I am faced with a choice as to whether to represent a religious cult that genuinely in the name of religion engages in various practices that I personally find offensive, even perhaps damaging to those in the cult. I may say, however, that because I personally regard freedom of religion in society overall as one of the most fundamental moral and political values worth upholding, I may in the role of lawyer represent the cult even if that means helping to preserve practices that I personally find offensive. I may say that moral reasoning in professional context is all that is involved if I as a lawyer do not reveal a confidence in some circumstances where the revelation would give justice to some other interests, because despite the benefit of disclosure, I personally believe that the benefit of confidentiality overall in maximizing trust and truth in lawyer client communications often outweighs the benefit of disclosure in these particular circumstances, even though had the communication come to me outside the role of the lawyer I would reveal it rather than keep it confidential.

We could go on and on with such examples where we either agree with conventional role norms or disagree with them, but in any case what we are doing is applying ordinary moral reasoning within the role context of lawyering leading to particular results different than what might obtain in other contexts.

Now by robust differentiation, however, I mean something that includes this notion of differentiation of contexts and situations for purposes of moral reasoning, but goes beyond it to a more problematic assertion that the context of professional role to a significant degree must be viewed as giving rise to a system of institutional ethics that becomes autonomous from our personal moral norms, rather than being a particular application of them. Here we have the notion of entering into a different world, acting out a role according to a given script, marching to the beat of different institutions and ideologies than our own. In short, we move from the world of common interpersonal morality to the world of special institutional morality.

What I mean by robust differentiation may be illustrated by analogy to a deck of cards that represent our moral values and dispositions of character. We have this deck of value cards and we have a presumptive ordering of the cards which normally allows us to deal them out in most situations as ordered, but sometimes we have to shuffle them and priorize them differently in relation to a situation if we are to remain true as much as possible to the overall commitment we have to be a certain kind of person and live a certain kind of life. But we play out life with the same deck of cards, although we are open to change where new cards are added and old ones tossed out. Now by robust differentiation I mean that when we are in the professional role many of our cards are simply discarded from the deck and set aside completely. We do not just reshuffle the deck and repriorize given the professional context, but rather we toss out a bunch of cards as being irrelevant to the professional role. We might even go further and imagine that we are actually asked to pick up some new cards or even a completely different set of value cards to play out our life when in the professional role.

The idea that we can live our moral lives with different sets of value cards, one personal and the other professional, violates fundamentally our understanding of how moral character is developed and exercised. Before we decide what we should do in a situation we already have made an explicit or implicit decision about who we should be. The decision about who to be precedes the decision about what to do. And then when we act, our action impacts back on us. When we act, we do not just do something, we also shape our character. As we act, we create ourselves. A single lie does not makes us a liar; but a series of lies may do so. Each choice of action is also a choice of whom to become as a person. What we do as professionals shapes who we are as persons and I think that it is simply a defensive lie to deny this by saying that personal moral character can remain unaffected by professional role actions. Diane Wakoski captures this beautifully in her poem called "Rock":

Once a rock discovered he was not a rock,
but had to go on pretending he was
because the world assumed he was
and treated him accordingly.
With his determination,
he became a successful rock.
At first he thought the burden
was an unbearable sadness.
Later, he discovered
he no longer felt
the burden.

B. APPLYING THE FENCE

So, with this brief sketch of robust differentiation, let's look more particularly at it in the context of lawyering. David Luban, the editor of a collection of essays on lawyer morality published under the title, The Good Lawyer has now written a full length book called, Lawyers and Justice, 1988, Princeton University Press. This is a very important book in my view, and Luban's ideas may well set the agenda for the debate in the field of lawyer's ethics for the next decade or so.

Luban argues that lawyers, given their conventional role morality, do not in general give a professional damn about justice. This is because the standard conception of robust role differentiation is essentially constructed upon the twin pillars of partisanship and nonaccountability.

The first pillar of what Luban calls the standard conception of lawyer role morality is partisanship. Partisanship means that the lawyer must zealously devote herself to the maximization of the client's interests within the law, which requires the lawyer to give little or no weight to the possible harmful consequences of the client's action on the opposite party or to third parties or to the public generally, so long as the consequences are arguably legal or the outcome of a legal procedure. The role of lawyer involves a high degree of single-minded devotion to the client and a much reduced degree of responsibility to others who are "not client", and this of course is quite different from the equal respect for persons that we might be asked to affirm in life outside the role of lawyer.

We might say that in terms of ordinary morality we expect that people of moral character have a disposition to engage in what sometimes is called "the moral imagination". They have the ability to see their action, not just from their our own point of view, but also they sympathetically put themselves in other people's shoes and imagine the predicaments of others and they acknowledge the effects of their actions on others. Without this fundamental imaginative acknowledgment of others we cannot begin to reason about what is right or wrong to do. As Eliot Richardson has said, "What does morality ask of us, after all, other than to recognize that other people are also real? It follows that they should have equal regard from us."

Now, I believe that the source of this moral character of having a disposition to give due regard for others, is our experience in community. It is our experience of being connected in family, in friendships, in church and in community which gives rise to moral virtues in the first place. Community is the both the source and the subject of ethics. It is first of all moral character which is the foundation of ethical action, rather than simple knowledge of, or reasoning with, ethical rules and principles.

However, lawyer partisanship establishes a narrower, individual client point of view. The moral universe is reduced. It becomes more manageable. Other people than the client become unreal.

As I said in last year's lecture, just because a client goal is arguably not covered by the law, or is even in some stronger sense, authorized by the law, and dare I say it in an even stronger sense, mandated by law, does not mean that the activity is therefore morally right to do. In the name of maximizing our client's legal rights we may actually profoundly violate other people's moral rights.

Partisanship within the bounds of law not only leads to violations of other people's moral rights by lawyers in the pursuit of client goals, but even the bounds of law are not all that constraining. Lawyer's instrumentally manipulate the law on behalf of clients, violating the spirit of the law by loophole hunting, instrumentally taking advantage of procedural rules to obfuscate and delay, and so forth. Uncritical partisanship not only does not give a damn for morality, but partisanship does not even fundamentally respect law, because the legal merits involved in the client's case take second place to the winning of the case or the attaining of the goal by placing tactics over truth, procedural maneuver over substantive merit, and economic resources over equitable resolutions. Thus, Luban says at page 76 of his book: "Lawyers themselves do not see the point of what they do as defending their client's legal rights, but as using the law to get their clients what they want."

Nonaccountability, the second pillar of the standard role morality of lawyers, means that the lawyer considers herself as not personally morally responsible for the harmful effects of lawyering on others in the pursuit of client interests, but rather that if there are such harms, they are the client's responsibility or the legal system's. It is to the rule of law that we turn, not to moral accountability. The lawyer is not personally morally responsible for aiding in the lawful ends of the client however morally questionable, nor is she responsible for the lawful means used to attain the client's ends. The lawyer's role necessarily means that the lawyer makes arguments that the lawyer personally does not believe in and that the lawyer pursues goals for a client that the lawyer may personally believe are wrongful. It is the law and the legal system which we defer to for the results of the case, and we just provide access to the law. We neither judge the case or claim, nor are we responsible for advancing it. Blame the client, blame the law, blame the adversary system, but do not blame me.

Now we might argue that Luban's picture of partisanship and nonaccountability is not really the standard conception of the lawyer's role at all and therefore we do not have as robust a differentiation as he suggests. We might draw some distinctions between ordinary partisanship and excessive partisanship, but Luban while not denying that some lawyers engage in moral dialogue with clients, still insists that zealous partisanship is in fact the standard conception. Indeed, Luban claims that it is false to think that this concept of partisanship and nonaccountability is confined to litigation. Rather he claims that it extends throughout lawyering activity as the standard conception of the lawyer's role.

So Luban paints a picture for us of a role morality which I call robustly differentiated. Both partisanship and nonaccountability as he defines them obviously call upon the lawyer to set aside her personal moral scruples when in conflict with client and institutional legal demands. We are in effect being asked to dump a lot of cards out of our deck to engage in the role. Now, before looking further at why we might be asked to do so, I think that despite my agreement with Luban, that this is indeed the standard conception of our role, I would nevertheless raise some points of modification and caution in presenting such a picture as the standard conception. Last year after I talked to the first year class in this law school, I got a letter from a prominent Vancouver lawyer who was present at my talk, and he made the point to me that he was extremely disturbed at the false picture of lawyering that I had painted. Well I do not think it is false, but a few points of moderation are certainly in order.

C. MODERATING THE FENCE

First, I think that our Canadian cultural heritage is more communitarian than the United States and that partisanship and nonaccountability may be more constrained here, although Charter interpretation may well destroy our civil deference to each other and bring us further in line with American rugged individualism. We have never really studied in a systematic way how our lawyer role demands differ from those in the United States, but we should do so before we slide into hardball American professional life without at least some notion of what is happening to us.

Second, I think that even if we tend to rebel against conventional role morality we better make sure we are presenting it properly to those who choose to accept it. If you claim that a role is robustly differentiated from personal morality and then you nevertheless enter the role, what you are saying is in effect that your personal moral struggle has come to an end. It is now all over. The moral choice is a choice of role rather than moral choices in the role.

Duncan Kennedy made this point about corporate law practice. Law teachers of the left paint corporate law practice as a pact with the devil. Well if that is the case, then students who might lean in the direction of viewing it that way too, but who nevertheless go to Wall Street, will serve the devil with unrestrained zeal. The choice has been made. The pact has been made, so you might as well milk it for all it is worth. Kennedy suggests that we should instead show how it is possible to be a transformative corporate lawyer within the corporate law firm.

Thirdly, however obvious, we need to remember that the paradigm of having professional role ethics differentiated from professional ethics, still claims that these professional ethics have some claim to historical justification and pedigree by being functionally connected with ordinary and social morality at some higher level. In addition, our professional role morality does include limits to partisanship and nonaccountability. We have some duties to the court and to others that transcend and trump client goals. We are held personally accountable for some of our professional action.

There is a story told by Jack Batten in his uncritical book Lawyers. Batten is writing about a famous Ontario criminal lawyer, David Humphrey. Batten writes: "At the 1957 Grey Cup game between the Hamilton Tigercats and the Winnipeg Blue Bombers at Varsity Stadium in Toronto, a Hamilton defensive back intercepted a pass and was wolfooting down the sidelines toward a certain touchdown when a man lingering on the edge of the field impetuously stretched out a leg and tripped the Hamilton runner. The man was Dave Humphrey."

Now Jack Batten tells this story without any hint of shame. This is great! This is the hudzpah out of which great lawyers are made. I realize that in the ethics of sports, people sometimes talk about the good penalty. Now that is a perfect example of role morality. The idea is that it is somehow honorable and even morally right to intentionally break the rules of the game to take a person down if that person is about to score. Better to take the penalty and prevent the goal. That is what we are suppose to teach our children about the value of winning over the development of virtue. But at least we might agree that spectator interference in the game is more than can be honorably rationalized, even in favour of Winnipeg. Professional ethics are at least better than none.

Fourth, another matter of concern that I have with the standard conception is the message of exemption rather than excellence. We tend to look at those situations where lawyer's seem to act with exemption from some of the moral constraints ordinarily applicable to situations. But role morality can heighten obligations as well as narrow them. Although dangerous if it feeds our already overblown elitism as professionals, there is something valuable I think in regenerating the point that professionals have a special role duty to place client and public service over self interest. We are given a monopoly by society to serve one of the most fundamental needs of society, namely justice. Society contributes massively to our professional training and to the institutions of the law within which we work. We are given an uncommon measure of status, power, and wealth by society which entrusts us with the professional role. The very essence of being a professional is this central obligation to society of service, rather than seeing law as a licence to run a business.

We have a greater moral responsibility than others for the accessability and fairness of the law. Yet I get the feeling continually that lawyers think they own the law for themselves, that they run the show for themselves, that they are autonomous from society rather than trustees of society. If we are going to accept role differentiation than we should at least construct some pillars of excellence alongside the pillars of partisanship and nonaccountability which are pillars of exemption in my view.

Fifth, I think we have a tendency to take bottom line role demands and translate them into top line expectations. What I mean is that even if you ultimately believe that you can maximize the client's legal interests irrespective of moral harm, do not then assume in every case that the client wants in fact to maximize legal interests at the expense of moral considerations. Lawyer's tend to uncritically assume that bottom line ethics are top line ends to be imputed to the client. The defense attorney assumes that if there seems to be a procedural or evidential hole in the prosecution's case then the client would obviously want to take advantage of it rather than taking responsibility, if in fact the accused is morally responsible for the offence. We think moral advice from lawyer's is paternalism when in fact the more dangerous paternalism is that lawyer's take over the morality of the case from the client by applying bottom line minimalistic legal ethics as top line expectations in all cases.

Sixth, we tend to give too problematic a picture of lawyering when we always deal with legal ethics issues as if the problem we have is acting for "bad clients" so to speak. I do not want to discount this issue, but let us always properly remember that it is not the bad client, but rather bad lawyering for good clients that constitutes the guts of our ethics problems. It is not so much that we take bad cases that we should refuse, but rather that we provide bad service for the cases we properly take. We should not discount the need for lawyers to engage in moral counseling with clients who seem to want to do bad things, but equally we need to consider that our clients are often the ones who can teach us something about goodness.

Seventh, without discounting the reality that partisanship may involve harming others in the name of helping the client, such a picture of lawyering may be seriously misleading because a great deal of lawyering involves helping people to cooperate with each other. The lawyer facilitates activities and relationships which helps the parties achieve mutual goals that would not be achieved without the lawyer's help. The image of the lawyer as helper, and coordinator of multiple interests is every bit as real as the image of lawyer as partisan helper of individual interests that may harm other interests.

Finally, eighth, it is sometimes a mistake to view moral problems in the professional role as a conflict between ordinary morality and role morality, a conflict, as it were, between extra-role norms and role norms. Rather, often the role itself has a multitude of different values associated and embedded in it, and ethical problems arise because of intra-role conflicts of values rather than extra-role conflicts.

So while more could be said, I have made eight cautionary points about how we build the fence of robust role differentiation for lawyers. However, let's turn to the question of how robust differentiation is justified.

D. JUSTIFYING THE FENCE?

Luban claims that the standard conception of robust differentiation is considered by lawyers to be justified largely on the bases of the institutional adversary system excuse. This adversary system justification is essentially extended to all of lawyering and is not confined to litigation. The lawyer is not the person to judge the merits of the case but rather the court is, through the process of the adversary system. The lawyer plays just one role in the system and other persons play other roles. Similarly the lawyer is not the person to judge the merits of a nonlitigation goal, because again the limits of the law are a prediction of what a court as the result of an adversarial procedure might say they are, if the matter was ever taken to court. This is to say then that the adversary system excuse is not confined to litigation at all if law is always an interpretive prediction of results in the adversary system rather than a good faith application of pre-existing normative values.

Obviously, the standard conception of partisanship and nonaccountability must be ethically justified somehow if we are going to live by these role demands as lawyers. The key point says Luban is that role morality cannot deviate from common morality without a reason. We might give such a reason, however, by following a four step process of justification says Luban. As he summarizes it in the Introduction of the book: "First, one justifies a morally disquieting action by appealing to a role-related obligation; second, one justifies this role-related obligation by showing that it is necessary to the role; third, one justifies the role by pointing to the institutional context like the adversary system that gives rise to it; and fourth, one demonstrates that the institution is a morally worthy one."

The first half of Luban's book goes at great length into all four of these steps with reference to lawyer's ethics. I certainly do not have time here to do anything more than give you Luban's final conclusion which is that the standard role concept of the lawyer in terms of the twin pillars of partisanship and nonaccountability is ethically unjustified and thus the standard conception should be discarded. We are right back into applying ordinary morality to our lawyering because the special role demands of partisanship and nonaccountability as earlier defined are not justified.

Now the conclusion that Luban comes to includes some interesting arguments along each of the four steps, but fundamentally it is the fourth and final step that determines the argument. Is the adversary system such a morally worthy institution that it justifies the robust differentiation built on the twin pillars of partisanship and nonaccountability, as expressed in the standard conception of the lawyer's role? If not, then the role differentiation flowing from it and grounded on it will not be ethically justified. The answer given by Luban is that the adversary system is not morally worthy. All the instrumental arguments for the adversary system's value in finding the truth, protecting litigant's legal rights, establishing checks and balances to safeguard excesses do not hold water when critically examined. Neither do the intrinsic arguments about the adversary system's value in upholding the dignity of the lawyer- client relationship and the dignity and autonomy of each individual to have access and voice in the system. Nevertheless, says Luban the adversary system is still weakly justified as no worse than alternative systems and also it is not likely worth the effort to radically adopt a new system. But this weak pragmatic justification for the institution cannot justify the full blown role differentiated morality of lawyers in that system.

So Luban's work reminds me of the story of Samson as it is told in the book of Judges in the Old Testament. After a tragic life of disobedience to his calling as the deliverer of Israel from the Philistines, Samson is blind, his strength has been neutralized by Delilah, and he is in captivity and brought into a Philistine pagan temple to be made fun of. In one last heroic move, Samson regains his divinely given strength and pulls down the twin central pillars of the pagan temple resulting in his own death and the death of a host of the enemy including the leaders of the Philistines. Unlike Samson however, Luban wants to be left alive to reconstruct a new palace of ethics. Instead of the pillar of partisanship he wants a new pillar which might be called morally restrained partisanship, and instead of the pillar of nonaccountability he calls for a new pillar which he calls moral activism. In the second stage of the book he applies these new visions to some of the classic issues of confidentiality and the problems of more equal access to legal services and also to public interest lawyering problems and potentials.

I classify Luban's approach as being within the second paradigm which I call restricted differentiation. But before turning to this second paradigm, however, I want to make just one point dealing with Luban's breaking out of the robust differentiation paradigm. I think that the question of the moral justification for the adversary system is not in fact the final foundation on which everything else rests, but rather justification for our role morality has a fifth step in it which looks generally at the fundamental ideology of our political, economic, and social life. To pull the pillars down requires in my view much more than the assertion that the adversary system is not strongly justified even from within liberal presuppositions. We have to go right to the root of what is wrong with libertarian notions of individual autonomy and the structures we have in our society that we have put in place to advance our alienation from each other and our victimization by each other.

In a recent article called "The Five Pillars of Professionalism" in the University of Pittsburgh Law Review, Kenneth Penegar gives a very interesting account of the ideological presuppositions that underlie the American Code of Professional Conduct. He shows how the main principles are deeply connected with a particular liberal vision of society, dealing with individualism, private property, the market economy, rights limiting government, and so forth. He asserts however, that there is also a much more muted contrary vision of society, a communitarian vision that is also present in the Code of Conduct but only secondarily so. Much of the tension in legal ethics goes right down to our differences between these two visions. The liberal notion of autonomous individuals with ever expanding rights is different than the communitarian notion of connected persons with obligations.

III. RESTRICTED DIFFERENTIATION.

If the fence of robust differentiation is rotting away, what kind of new fence will we construct? Let's turn to the paradigm of restricted differentiation. Luban replaces standard partisanship with morally constrained partisanship and replaces nonaccountability with moral activism. The gulf between ordinary morality and professional morality is greatly restricted as compared to the robust model. It is restricted in two senses.

First, Luban still believes there is one area of legal practice where the standard conception of partisanship and nonaccountability is justified, precisely because in this area the adversary system and its role demands are morally justified. This area as you might guess is the role of the criminal defense attorney. Luban ultimately accepts the view that the defense attorney ought always to strive within the bounds of law and adversarial ethics to get an acquittal of her client if at all possible irrespective of actual moral fault. Luban accepts the view that the criminal defense attorney should play "dirty, knuckles barred, hard ball advocacy" as he puts it, within the constraints of the system. He might strengthen some of our duties to the court, but fundamentally Luban accepts most of the arguments about how we all need to be protected from the bad old state by constantly keeping it in check through upholding a host of procedural, evidential, and substantive rights for accused persons that may be presumptively invoked, irrespective of the actual merits of the rules to particular cases. The purpose of a criminal trial is less the discovery of truth, as it is a process that overprotects us all from the evil empire. We need this overprotection, says Luban. Thus the role of criminal defense lawyer involves robust differentiation between ordinary ethics and role ethics, but that differentiation is itself ethical justified by the higher moral value of the role to society.

But this is not so in civil litigation cases and all other lawyer transactions where Luban can find no justification for much of the adversarial zeal that blocks decisions on the merits or advances immoral ends. In the civil litigation paradigm the primary end of adversary adjudication should be the assignment of rewards and remedies on the basis of the parties's behaviour, as prescribed by legal norms: legal justice, rather than the protection from the state, should be the goal.

So, Luban's position is restricted role differentiation in the first sense that fairly robust role differentiation is allowable in one corner of the overall lawyering universe of activity. In a second, and very different sense, however, Luban's position may be characterized as restricted role differentiation in terms of all the rest of lawyering. In constructing a new model, Luban does not deny that the role of lawyer generally involves partisanship on behalf of clients but this partisanship must be limited by common moral obligations. Luban does not deny that often lawyers should advance claims in court rather than prejudge the claims and so forth, although he also says at times the lawyer should not advance unjust claims if there are factors which lead to the conclusion that deferring to the legal procedure will not be reliable. Luban suggests a new moral baseline standard of zeal involving four restrictions on partisanship which he outlines on page 157:

[restrictions] (1) on modes of practice that inflict morally unjustifiable damage on other people, especially innocent people;
(2) on deceit, i.e., actions that obscure truths or that lure people into doing business under misapprehensions, even if these are legally permissible;
(3) on manipulations of morally defensible law to achieve outcomes that negate its generality or violate its spirit; and, in general,
(4) on the pursuit of substantively unjust results.

In terms of moral activism Luban would of course urge lawyers to engage in far more moral counseling with their clients, but then unlike the present situation where lawyers of conscience must simply withdraw if the client persists in seeking a morally repugnant course of action, Luban would want the Code of ethics to actually be redrafted so as to allow lawyers not to withdraw, but rather to refuse to use immoral means or pursue immoral ends. I presume that Luban would still grant the client the right to fire the lawyer, but obviously having the discretion not to withdraw may allow lawyers a much greater role in preventing harm.

The justification for restricted differentiation is simply the absence of good reasons to depart from ordinary morality. But it is ordinary morality applied to the specific context of lawyering involving due regard for a much more sophisticated notion of what the rule of law in a pluralistic society means. To understand this we might helpfully turn to the next paradigm of reconceptualized differentiation.

IV. RECONCEPTUALIZED DIFFERENTIATION

The third fence is really a modification of the second fence and shares many features with it. Recently, there appeared in the Harvard Law Journal a very complex article by William Simon called "Ethical Discretion In Lawyering." Simon's use of the term "discretion" may at first blush lead you to the wrong conclusion about his position. I tentatively call his paradigm reconceptualized differentiation.

One of the criticisms that could be leveled against my talk last year on conscientious objection is that it lacks systemic transformative power. My call to personally ignore the fence of robust differentiation could be viewed as a kind of "personalistic clean hands, opting out, micro moral witness" approach, where you resign yourself to the existence of the standard conception of the role, but you personally refuse to assume that standard conception. You find your own way to integrate your personal morality with the role by selective participation in it and by prophetic witness within it. You make critical choices about what clients you will serve and how you will serve them based on moral rather than strict legal criteria. More importantly, you do this in a way that preserves the liberal notion of the extensive moral autonomy of clients to disagree with you and pursue their goals elsewhere without your help. You are not imposing your values on anyone, you are just preserving your own moral integrity and wholeness by doing stuff that makes the world a better place as you see it, rather than perpetuating hierarchy and oppression.

Even though I argue that every lawyer could take this approach within the limits I set for it, and this would not be anymore incoherent with the notion of the rule of law and the notion of official sources of law in legislatures and courts than the current practice of instrumental law manipulation and gross inequalities in society in terms of access to and application of the law; at bottom of course, I do not expect at all that the standard conception of legalism will be overthrown, but rather that there will be at best a vibrant counterculture within the profession. The fence of robust differentiation is not cut down at all. A few lawyers simply jump over it every day.

But Simon is not content with this at all. The focus of Simon is not on personal conscientious objection to the conventional role demands of lawyering, but rather the focus is rather on reconceiving those role demands; refashioning the role demands for all lawyers; constructing a new fence in place of the old. To a significant degree (outside the criminal field) this is also the position of Luban, as we have seen. For Simon, the reconception involves the assertion that personal moral discretionary judgment by lawyers is actually central to their role rather than contradictory to it. It is actually a role obligation of lawyers to exercise moral judgment about the relative merits of a potential client's goals and claims compared to others whom the lawyer might serve instead. It is actually a role obligation of lawyers to exercise moral judgment in terms of reaching the most appropriate and just resolution of a client goal or claim in some situations, especially when the relevant procedures and institutions cannot be depended on to give reliable outcomes. We must reconceive our role in other cases to facilitate rather than frustrate the operation of the legal procedures in which we play a role. Placing moral judgement in the center of the role is not anti-legal, but in fact is deeply connected to our legal ideals in the first place, says Simon.

Now by reconceptualized differentiation, I mean that Simon does not appear to me to be arguing for some kind of thorough rejection of the differentiation between personal ethics and professional ethics. In a pluralistic liberal society we do make some distinctions between private ethics and public law and between legal values and other values. Simon recognizes that the role of the lawyer is often legitimately viewed as providing access to a legal procedure rather than directly judging the client's claim in terms of the substantive merits. As lawyer's we defer to the judge or administrative tribunal in terms of the substantive merits because the procedure in which we play our role can be relied on to provide a more satisfactory outcome as compared to the lawyer acting on her own to prejudge the merits. But Simon's point is that if we see our ethical obligation as running to the procedure rather than to the substantive merits, than we must reconceptualize our role so as to facilitate the procedure rather than frustrate it, and secondly, we must exercise moral judgement in recognizing when the procedure cannot be relied on. There are situations in terms of the power of the client, the vulnerability of the other side, the lack of enforcement mechanisms or whatever, when we know that we cannot defer to the procedure. Here Simon calls for direct moral judgments by the lawyer aimed at facilitating just outcomes in situations that are analogous to what might be called market failures.

Again this is reconceived differentiation rather than rejected differentiation in that Simon admits that there are going to be conflicts between a lawyer's nonlegal commitments and the legal values of society. But his call to moral judgement in the role of lawyering is not about such conflicts, but rather is an attempt to show that the legal role itself is riddled with conflicting forces that require the lawyer to exercise moral judgement to vindicate legal values rather than just do whatever for the client in whatever way that is arguably legal in a narrow sense.

It is very wrong to see lawyering as simply involving a kind of operational intelligence, where lawyering involves the hired gun ability to move something from point a to point b. Rather than operational intelligence, lawyering also and always involves critical intelligence. We have to ask questions about whether we should move something from point a to point b.

After presenting his approach calling for lawyers to exercise moral judgement within a reconceptualized role, Simon deals with 11 objections that could be made about his approach in turn.

Now I do not have time to summarize his views or the justification for them, but I want to emphasize just one point. Simon makes the following statement that cuts at the root of my conscientious objection piece:

"The discretionary approach is grounded in the lawyer's professional commitments to legal values. It rejects the common tendency to attribute the tensions of legal ethics to a conflict between the demands of legality on the one hand and those of nonlegal, personal or ordinary morality on the other. Although critics of conventional legal ethics discourse often adopt the law versus morality characterization, its strongest influence is to bias discussion in favour of conventional, especially libertarian, responses. Typically the conventional response is portrayed as the "legal" one; the unconventional response is portrayed as the "moral" alternative. This rhetoric connotes that the "legal" option is objective and integral to the professional role, whereas the "moral" alternative is subjective and peripheral. Even when the rhetoric expresses respect for the "moral" alternative, it implies that the lawyer who adopts it is on her own and vulnerable both intellectually and practically. The usual effect is to make it psychologically harder for lawyers and law students to argue for the "moral" alternative. In many such situations, however, both alternatives could readily be portrayed as competing legal values."

What struck me when I read Simon is that we have a lot of legal theory on the role of judges, particularly the place of personal and group moral reasoning, and moral discretion in judging, but when it comes to lawyering we seem to have very little jurisprudential theory. When we argue about the meaning of the concept "law" we overwhelmingly focus on the role of judges as if we will find there the heart of what law means. We assume that the lawyer's role is only instrumentally important to the ultimate meaning of law found in the nature of judicial decisionmaking. But why do we not search for the meaning of law in lawyer decisionmaking? Only the tip of the iceberg of law involves judicial decisions even though that tip of course generates the precedents which cast a structural force on all the rest of the legal world. Nevertheless a great deal of the law is not just applied, but also made in the law office. And more importantly the question of what law should mean is determined by lawyers vastly more times overall every day than it is ever determined by judges. Yet we have a kind of standard conception that lawyers are not responsible for the law or justice while representing individual interests in the same way that judges are responsible for the law or justice given their institutional role.

If the standard conception of lawyering asserts that you look to law rather than morality for the limits of what you can do on behalf of your client than we need to ask whether this distinction collapses from the start because law and morality are not as strongly differentiated as we suppose. If the proper conception of law involves not simplistic categorical reasoning with rules about what is law and what is just morality, but rather involves moral judgments about purposes and policies and impacts in relationship to conflicting legal values and ideals found in the whole corpus of law, than we need a reconceptualized role morality that takes law seriously, that calls for much greater lawyer responsibility for legal justice.

VI. CONCLUSION

What does this all mean now for the possibility of constructing a fourth paradigm called rejected differentiation, which by definition not only implies pulling the old fence down, but also involves refusing to build any new fence at all, whether restricted or reconceived, that marks the division between the personal and the professional, or the moral and the legal? For today, I leave this question open. However, by way of conclusion, we are seeing that the robust differentiation fence is under severe strain. I think that we have some grounds for hope that law students and lawyers will be confronted more than ever before with new visions, new models, new opportunities of how to live in the law with personal integrity.