Ch. 8: What is the Proper Role of a Lawyer?

1. Ch. 8: What is the Proper Role of a Lawyer? • The dominant conception of a lawyer • The meaning of the term “role morality” • The dominant conception: Ls as neutral partisans & hired guns • Changes over time regarding the role of the lawyer • What is the position of the ABA Model Rules regarding lawyers’ morality? • Should morality (beyond role morality) be part of a lawyer’s law practice? II. (Competing?) Visions of Professional Morality • Please explain to your classmates your assigned theory about the proper role of the lawyer • Is there a consensus about what each theory means? • Moral Responsibility • Feminist Lawyering • Religious Lawyering • Racial Justice • Civics Teacher • Do you think it would help you in your practice to adopt one of these approaches?

2. Some Preliminary Questions Did you read the assignment? • YES • No Did you find the Chapter interesting/useful? • Yes • No

3. Why I Think its Worth Thinking about Ch. 8 & the Role You Want to Assume http://www.thefacultylounge.org/2014/03/law-professors-law-students-and-depression-a-story-of-coming-out-part-1.html http://www.thefacultylounge.org/2014/04/in-part-i-of-this-little-series-i-laid-out-some-of-the-statistics-regarding-the-scope-of-the-problem-of-depression-and-anxie.html#comments

5. According to your Casebook… Today, the “Dominant Conception” of the lawyer sees the lawyer as a hired gun • True • False True – see Casebook p. 796 This is also referred to as the “neutral partisan” role Historically this has not always been true

6. What Does the Term “Role Morality” Mean? Role morality requires lawyers to take actions that are immoral under ordinary morality. • True • False David Luban has described this as involving: • The principle of partisanship; AND • The principle of nonaccountability You should be familiar with Lord Brougham & the quote on p. 798 – it’s cited often

7. Which of the following is correct? • The ABA Model Rules: • require lawyers to be amoral partisans. • prohibit lawyers from being amoral partisans. • permit lawyers discretion to choose whether to be morally responsible or an amoral partisan. • This is Question 8-6 (p. 799)

8. Relevant ABA Model Rules Rule 1.2(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities. 2.1 Advisor. 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. See also Rule 1.16(b)(4): A lawyer MAY withdraw if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement” • Do these Rules point in different directions? • Note how one might criticize the TN Ethics Opinion on p. 803

9. Do any of the ABA Model Rules use the term “zealous representation”? • Yes • No This is perhaps a trick question. The Preamble refers to zealous representation, but none of the Rules use this term. The Rules’ counterpart to the Model Code’s “zealous representation” requirement is Rule 1.1 – Competence. Does this change represent a change from the “neutral partisan/hired gun model? If so, do most lawyers realize this change has happened?

10. Is There Any Way One Could Argue that Choice #3 is NOT Accurate? • Q 8-6 says that the ABA Model Rules “permit lawyers discretion to choose whether to be morally responsible or an amoral partisan.” Could one argue that the ABA Model Rules do not always grant lawyers discretion to choose whether to be morally responsible or an amoral partisan? • Do lawyers always get to pick their clients? • Do you always know at the outset what kind of client you are getting? • Sometimes it is the situation, rather than the client. The Model Rules might force the issue in a way the lawyer finds morally uncomfortable. See Rule 1.6

11. What Did You Think About the Red State/Blue State Video? http://law.fordham.edu/louis-stein-center-for-law-and-ethics/10469.htm Do you see any contemporary issues in which one can identify the strands of the differing historical approaches described in the Red State/Blue State article? Have you come up with a decision about whether 0 for yourself – you are more comfortable with the dominant conception of the lawyer’s role (hired gun) or with one of the alternative visions? It’s worth thinking about before you go into practice.

12. Questions for each Group What are the important points from this section that your classmates should know? What was your reaction to this section? Would you recommend to your classmates that they read this section (even though it wasn’t assigned)?

13. Lawyering with Moral Responsibility • What does “extralegal morality” mean? • David Luban suggests lawyers should bring extralegal morality into their work. What does this mean? • Simon does not suggest that, but he does believe in moral activism for lawyers, especially through the exercise of discretion. How does Simon suggest a lawyer might use this type of discretion in work? • Would he treat wealthy corporations and low income clients differently re evading the spirit of the law? • What do you see as the advantages of a moral activist approach to lawyering? Disadvantages?

14. To Apply this Perspective: You are a lawyer representing Client in a deal where “Plan A will yield client $1.5 million. Plan B will yield Client $2 million but will impose moderate but sig­nificant costs on many innocent third parties for which Client will not be legally responsible. Both plans are legal (as in, a good faith interpretation of the law sustains both and will find both reasonable). Client wishes to abide by the law and maximize its profits. What [will you] advise Client to do?”

15. Feminist Lawyering • Is there a consensus on what this means? • How do MacKinnon and Menkel-Meadow differ in the ways in which they define feminist lawyering? • Did you find persuasive Menkel-Meadow/Gilligan theory about the different ways of approaching problems? i.e. the Amy v. Jake approaches? See pp. 829-30. • What do you see as the advantages of this approach to lawyering? Disadvantages?

16. Hypo p. 836: You are representing the defendants in the Spaulding v. Zimmerman case described in Chapter 4. Given your knowledge that Spaulding both suffered from an aneurysm and was not aware of that aneurysm, how would you as a feminist lawyer behave differently than the defendants’ actual lawyers? [Cf. Heinz’ famous pharmacist hypo, p.829] See also p. 835 re possible rule changes this approach might lead to.

17. Religious Lawyering • Is there a consensus on what this term means? • The book has five excerpts (Levinson, Allegretti, Al-Hibri, Pearce, and Vischer) that focused on religion in general and on Christian, Muslim & Jewish lawyers. • Which author(s) concluded that a lawyer should bring religion into her work? • Re Q. 8-22(p. 838): Prof. Vischer explains why the 3 points below should not prohibit religious lawyering. What were his arguments? [Re client autonomy, publicly accessible norms, & the threat of illiberal communities] • See pp. 866, 868, and 871 [Choice D should be “none”] • What do you see as the advantages of this approach to lawyering? Disadvantages?

18. Al –Hibri Excerpt, Page 849: There was, however, one bright spot in my law firm experience. There was one area of the law that (subconsciously) suited my values quite well, that of securities regulation. This area of the law came into existence in order to protect public interest. For this end, full and adequate disclosure (in religious terms, telling the truth) by issuers of securities was required. I therefore launched into this difficult area of the law with a great deal of zest. In fulfilling the injunction of doing my work well, I spent long careful hours conducting due diligence and drafting documents, so that the public interest would be properly protected. I flourished doing that kind of work, I withered doing deals

19. How would you come out on this issue? The Bar Association Ethics Committee has been asked to consider whether and when Rule 1.7 requires a lawyer who chooses a religious lawyering perspective to disclose her perspective to her client. What should it decide? • The lawyer must always disclose this • The lawyer must never disclose this • Whether the lawyer must disclose depends on the facts and circumstances and whether the lawyer thinks it might lead to a conflict of interest with the client

20. Lawyers and Racial Justice • Did Anthony Griffin think that his being African-American was relevant to his decision to represent the KKK on a First Amendment issue? • What does David Wilkins mean when he recommends trying to reconcile the domains of the professional, the personal & the obligation thesis? • How did Wilkins apply this to the 4 cases he discussed? (Griffin/Johnson/Darden/Cochran)? • Why does David Wilkins think that African-American lawyers have racial obligations? See p. 877, 890 • What do you see as the advantages of using a Racial Justice approach to lawyering? Disadvantages?

21. David Wilkins approved of the professionalism of all 4 of these black lawyers. • Johnnie Cochran (Defense counsel, OJ Simpson) • Christopher Darden (Prosecutor, OJ Simpson) • Anthony Griffin (ACLU-affiliated lawyer who represented the Grand Dragon of the Klu Klux Klan) • Robert Johnson (elected Bronx DA who announced that he would not seek the death penalty because of its racially discriminatory application)

22. Should a lawyer who believes it is important to inhabit all 3 moral domains (professional , personal & obligation) talk about this publicly? See Justice Sotomayor &“a wise Latina” http://www.youtube.com/watch?v=I-zg0FduCRE http://www.youtube.com/watch?v=gxGoiFVlec4

23. Lawyer as Civics Teacher • What does the “Civics Teacher” approach to lawyering mean? • “Civics teacher” lawyers explain the “spirit” of the law as well as the “letter” of the law • This theory says that descriptively – this is what “civics teacher” lawyers do • Normatively – this is what lawyers should do (rather than simply serving as a hired gun) • Do you think clients would welcome lawyers who function as “civics teachers”? • What do you see as the advantages of using this approach to lawyering? Disadvantages?

24. How would the “Civics Teacher”Lawyer Respond? Lincoln Motors is deciding whether to make a design change in the LS Model not required by law this year but required next year. Lincoln Motors informs you that their studies show that the design change would save 100 lives a year but would raise the price of each car $5000.

25. Ben W. Heineman, Jr., General Electric’s former senior vice president and general counsel, has explained how he sought in outside counsel both ‘an outstanding technical lawyer’ and ‘a wise counselor,’ who could offer ‘thoughtful insights into all nonlegal issues – ethical, reputational, and commercial.’ Heineman understood his role as ‘shaping the company’s . . . role as a corporate citizen[,] and . . . addressing questions of how to balance the company’s private interests with the public interests affected by the corporation’s actions.’

26. Question 8-33 (p. 909) • If I had to choose one perspective for my role as lawyer, I would choose: • A) hired gun • B) moral advocate • C) feminist lawyer • D) racial justice lawyer • E) religious lawyer • F) civics teacher • I believe it is possible and I plan to use more than one of these perspectives in my role as a lawyer. • Yes • No

27. Would you support the adoption of a new ABA Model Rule that said….. Rule 1.0 Lawyers are morally accountable for their actions. • YES • NO