Moral Attorneys; Moral People
Richard J. Heafey
Law students reflect on the principles they intend to follow in their professional lives.
In 1996, while teaching a course on ethics to Santa Clara University law students, I asked the members of my class to write a brief statement of their moral principles. They were under no compulsion to please their teacher. I told them they could either sign the submission or not, and the exercise was ungraded.
As the statements that follow suggest, the students aspire to become lawyers for all kinds of reasons, but high up on almost every list is promoting justice, doing good, or generally making the world a better place. Unfortunately, these visions are soon tested—if not by teachers explaining that lawyers represent their clients' interests, not society's, then by the economic pressure of practicing law.
The situations in which a lawyer's personal values conflict with his or her professional responsibilities are easy to list, and they never fail to stimulate thoughtful discussions among students: defending the guilty or prosecuting the innocent; limiting the liability of a willful and reckless polluter; using the legal process to wear down competitors or other adversaries; or asserting a dubious privilege solely to conceal damaging evidence. And the list could go on.
Many practitioners (all of whom were once clear-eyed law students) resolve the conflict by declaring that the only way to truly promote justice is to make the justice system work, which requires that every party have a zealous advocate who will advance the client's interests—right or wrong—within the bounds of the law.
But is that a cop-out? Like an employer who justifies exploiting workers or making a substandard product by invoking the morality of the marketplace, a lawyer who says he or she is just filling a role in a system that produces justice is also abdicating responsibility. Narrow professionalism leaves little room for promoting personal values or the public interest since these considerations are often trumped by the lawyer's duties of confidentiality and loyalty to the client.
The attorney's need to make a living and build a reputation adds even more complexity to the ethical equation. In an increasingly competitive business, attorneys don't always have the luxury of choosing their clients based on the righteousness of their causes. On the other hand, clients, who do have the luxury of choosing their attorneys, are looking for someone to represent their interests, not to advance the greater good.
Somewhere between amoral abdication of responsibility and quitting the practice of law to work with Mother Teresa is the ethical posture we want our students to adopt—that is, to recognize the conflicts that are certain to arise between their own moral positions and their professional responsibilities and to make ethical choices that reconcile those conflicts.
To do that, students and lawyers must hold on tight to what brought them to the practice of law in the first place-the desire to promote justice. Thus, I asked the students to articulate their ethical guides in the hopes that these noble principles, statements of original intent, would continue to guide them in their professional lives.
Law Student Statements of Principle
My guiding moral principle is that I will never put my role as a lawyer ahead of my role as a human being. If upholding my obligations as a lawyer would cause me to do something I believed was completely wrong, I would prefer to risk being disbarred but still maintain respect for myself as a human being. For this reason, I don't believe that I could adequately represent criminal defendants and am therefore sticking to corporate law, where the situations don't usually involve someoneÕs life or health.
I believe in justice but not justice at any price. I refuse to sacrifice my sense of justice for what others have defined as a justice system.
I believe in a world where all people can find justice. However, we live in a society where many people do not have a voice or access to our country's legal system. My belief in justice has led me to a career in public interest law. I want to help educate people about their rights so that one day everyone will find justice.
My moral compass has been set by a combination of my religious beliefs and my life experience. The Catholic Church teaches that we should all live as Jesus lived and follow the examples of the saints. This means to be kind, compassionate, fierce in our protection of what is good and right, and equally fierce in our condemnation of what is wrong. Unfortunately, right and wrong are not always clearly delineated.
My life experience has given me some confidence in my instinctive ability to sense right from wrong. For instance, it is always wrong to say derogatory things about or to people for the purpose of making yourself look more important. It is always wrong to put money before people in your priorities.
I have been taught that the moral choice is never situational-that right is always right. However, my experience has taught me this is not always so. My moral decisions must always take into consideration the possible consequences of my choices for me and the people around me.
I believe it is fundamental that I act within my individual ethical code and am not influenced by those around me. The guiding principle in that code is an adherence to integrity and honesty. I can live with mistakes, people not liking my personality, etc. However, I always want to be known as a person with great integrity and honesty-as a person who does what he says and never compromises his ethical foundation, regardless of outside pressures.
Unfortunately, justice—or the practice of law—can often be an easy excuse for inhumanity. I hope to maintain some humanity while advocating what is just within our system. In its simplest form, this principle is perhaps best stated as: First, do no harm.
Be a human. Have compassion for those who have done wrong, but have greater compassion for those who are innocent.
Morality is an internalized sense of what is just; it is not something that can be read about in a text and then fastidiously employed.
In all that I do, my aim is to deal fairly with everyone. In determining what is fair, I place myself in the other personÕs shoes. I ask, "How would I want to be treated in this same circumstance, and how would I expect to be treated in this circumstance?"
My ethics as an attorney will revolve around one thing: honesty.
There is nothing more fundamental in the legal profession or, for that matter, in any profession than to be an honest person, whether it be to oneself, to a client, or to a legal partner; the best policy is to be straightforward to others. Shadowing the trust, even a little bit, will always come back to haunt a person.
A dishonest and deceitful person might be victorious in the short run, but in the long run, the truthful and sincere person will gain the respect and admiration of his peers, which is a much more lasting quality.
"Who in the rainbow can show the line where the violet tint ends and the orange tint begins? Distinctly we see the difference of the colors, but when exactly does the one first blendingly enter into the other?"
--Herman Melville, Billy Budd
So with morality and immorality. In pronounced cases, such as whether or not to engage in sexual relations with a client, there is no question about the immorality of the act. But in some cases, where the various degrees of what is ethical and what is not are less pronounced, to draw the exact line of demarcation is a daunting task.
The task is not made easier by the rules that govern ethical conduct. Words like reasonable and should are frequently used, leaving their interpretation to the individual reader. Personally, I call my guiding moral principle the Sleep at Night Principle; i.e., when faced with an ethical dilemma, which decision will allow me to sleep soundly at night, undisturbed by my conscience? This principle is just as ambiguous as the language of the various rules and, for that reason, may not be of much use.
My guiding principle is to live truthfully both as an attorney and as an individual. I could not lie to myself, to my client, to the system, or to society, nor could I allow my client to lie. I could not allow a witness or my client to testify if I knew he or she would lie, nor could I harass a witness on cross-examination when I knew he or she was telling the truth. If my client insisted on taking the stand and lying, I would have to resign prior to the testimony.
It's often difficult to reconcile our role as attorneys and who we are individually. I don't think I could take off my "lawyer cap" at the end of the day and become a new person; I would have to be able to live with my actions and decisions at work.
I believe clients are entitled to a defense and confidentiality unless they say they will hurt someone in the future. But criminal defense is not the role I would like to play. While I should work within the rules of ethics, I should also not do something that I can't live with, that goes against my personal beliefs. If I accept a client's case, I should represent him or her to the best of my ability, but I should not accept if I don't believe I would be comfortable with my role.
I will represent my client up to and only up to the point where it becomes morally impermissible for me to do so based on values I had long before law school and have retained despite the corrosive influence of legal education.
Richard J. Heafey is an attorney with Crosby, Heafey, Roach & May in Oakland, Calif., and a member of the Ethics Center Advisory Board.
This article was originally published in Issues in Ethics - V. 8, N. 3 Summer 1997.
Nov 12, 2015
From the Center's Blog
A teaser episode, featuring: YOU!
A little teaser episode for the upcoming Big Q Podcast, coming at you from the Markkula Center for Applied Ethics at Santa Clara University. Featuring: YOU! Hear what students at Santa Clara think about ethics and get updated on the details of the show!