Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, June 22, 2009

Is an attorney's moral deference a problem?

In light of our conversation about the Catholic legal thought project being too disconnected from the practice of law, I thought readers might be interested in this exchange about how lawyers should view their professional roles. The Northwestern Law Review Colloquy has published an essay by Michael Hatfield titled "Professionalizing Moral Deference."  Hatfield uses the torture memos as evidence of a broader problem: our tendency to professionalize lawyers to view moral deference as a moral good. Here's an excerpt:

From the beginning of law school, a lawyer is idealized as a zealous advocate for her client’s objective.  This biased zealousness is justified by an appeal to the adversarial American legal system.  Each side has a lawyer, and each lawyer is devoted to one side.  The professional role is to further the client’s objective, even if, personally, the lawyer opposes it.  The young lawyer learns to defer to the client’s moral conclusions about the objective.  But the young lawyer also learns to defer to the legal system’s conclusions that this is what lawyers should do.  We are told to suspend our personal moral instincts and to have faith that the legal system accomplishes a greater moral good by our accepting a truncated personal moral role than it could accomplish if we accepted full personal moral responsibility for what we help our clients do.  We are professionalized into believing that we are at no personal moral risk so long as we do a professional job (for which we will be well paid).  We are told to accept the moral good of moral deferenceboth to our clients and to the system.  We are professionalized to believe that moral deference is simply what lawyers do, as if it were a self-evident, natural principle that pardoned our moral misgivings. 

I've written a response essay titled "Professionalizing Moral Engagement."  Here's the opening:

In Professionalizing Moral Deference, Michael Hatfield argues that the way we form lawyers “begins with moral desensitization,” a technique that teaches future lawyers “to override [their] moral intuition.”  In making his case, Hatfield offers the infamous torture memos as Exhibit A, but they may not be the best vehicle for proving his thesis. As the work of John Yoo shows, some of the most scandalously deficient legal advice may stem (at least in part) from the lawyer’s inability or unwillingness to override his moral intuition.  There is no reason to believe, however, that Yoo’s moral intuition would have led him to reject the conclusions set forth in the memos, and there is some evidence that his moral intuition helped shape his analysis.  Seen in this light, the memos could be construed—in direct opposition to Hatfield’s characterization—as evidence that law schools need to redouble their efforts to train lawyers to override their moral intuition.  But this reaction would miss the partial truth underlying Hatfield’s analysis.  The torture memos do underscore a desensitizing that afflicts many lawyers, though its implications are broader—and perhaps less insurmountable—than Hatfield describes.  Although he is undoubtedly correct that lawyers should “stop telling [one another] that overcoming personal moral squeamishness is the great call of the law,” the law’s call is a bit more nuanced: although lawyers should not ignore their own moral squeamishness, neither should they wallow in it.  The lawyer’s cognizance of her own moral intuition should mark the beginning, not the end, of her inquiry into the moral dimension of the representation.

So should Catholic legal thought buy into the notion that an attorney's moral deference to her client is a problem?  My views are set out in the essay, and I'd welcome feedback. 

https://mirrorofjustice.blogs.com/mirrorofjustice/2009/06/is-an-attorneys-moral-deference-a-problem.html

Vischer, Rob | Permalink

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