Friday, March 19, 2004
In terms of the continuing discussion of how our legal profession generally failed to serve a positive role in the context of the priest sexual abuse scandal, Randy J. Heinig kindly cites to our discussion here at the Mirror of Justice and then offers the following thoughtful summation:
“Lawyers can be analyzed to MSG (salt is, by and large, a little too flattering for us as a class) -- they more or less accentuate what's already there. But we do bring a distinctive way of viewing things to the table that can, by and large, be good for the client to hear. In this case, it clearly wasn't. The lawyers at issue appeared to understand the law (its language, its strictures, the way it functions -- too much so) in counseling the client, but had missed the essential purposes of the client. While this is rare, sometimes the lawyers need to remind the client of its own purposes. In this case, the lawyers forgot to do that and forgot, therefore, to ultimately and truly serve the client's interests. They lost sight of their larger tasks and became to pre-occuppied with their own limited professional discourse to provide real counsel.”
(You can read the entire message at: http://www.news-sheet.net/archives/000201.html.)
Using Mr. Heinig’s point as a spring-board to continue this discussion, I’d suggest that the “need to remind the client of its own purposes” ought not to be so rare. Indeed, by making the lawyer’s appreciation of the unique purpose or mission of every client a centerpiece of legal practice, we might revitalize the role of the attorney as an adviser, that is, as a true professional and not merely a legal handyman. If such a conversation between lawyers and clients were to become a standard part of the initial retention arrangement, the opportunity for the lawyer and client to work together toward a mutually fulfilling moral as well as a legal end would be greatly enhanced, and many misunderstandings might be avoided as well.
Let me propose this, as a plan of action or at least a subject of further dialogue: We as lawyers ought to put the “mission” question on the table upfront, asking the client who he, she, or it really is; what is the client’s mission,that is, its reason for being; what are the long-term goals as well as the short-term ends of the client; if we were to look back in twenty years, what legacy would the client wish to leave behind; how may the client reach its goals in a manner that strengthens the clients attachment to others and to society; etc. By being purposeful about the mission of the client or the moral terms of the retention from the very inception of the attorney-client relationship, the lawyer then can shape the nature and content of that relationship throughout its duration.
Consider the example at hand: had every lawyer retained by every Catholic bishop confronted by a suit against a diocese for improper conduct by a priest with a minor paused to inquire whether the Church deserved a different kind of legal advising, before plunging in to provide an ordinary legal defense according to the letter of the law, isn’t it likely that the results would have been different on at least some occasions? To be sure, some bishops might still have insisted upon treating the sex abuse problem as a legal distraction and demanded a zealous and legalistic response thereto. But isn’t it likely that some Church leaders, when encouraged by their own legal counsel to do so, would have been moved to reconsider their approach, rediscover the true nature or role of the Church in society and in relationship with others, and reorient the trajectory?
In fact, given the disastrous consequences that often attended the representation of the Church by its lawyers in the sex abuse scandals, might not one argue that the failure to raise questions of mission and the proper contextual role of legal counse for that client was itself a failure of competence? In conclusion, then, could it not be that extending an invitation to the client to engage in moral reasoning together is not merely advisable but the essence of professional responsibility?
I’ll close this posting with these words from Gerald J. Postema, which seem to me particularly pertinent here:
“[C]ut off from sound moral judgment, the lawyer’s ability to do his job well—to determine the applicable law and effectively advise his clients—is likely to be seriously affected. . . . [T]he lawyer who must detach professional judgment from his own moral judgment is deprived of the resources from which arguments regarding his client’s legal rights and duties can be fashioned. In effect, the ideal of neutrality and detachment wars against its companion ideal of zealous pursuit of the client interests.”
Wednesday, March 17, 2004
A new group blog, "De Novo," has a number of interesting and -- in my view -- sound posts up about the nature of legal education and the purpose of law schools. The blog includes mini-essays by a number of well-known law-blog folks, including that force of nature, Howard Bashman, and Slate.com's Dahlia Lithwick. Law students in particular are urged to check it out.
Rick
Amy Uelmen’s “thoughts about blogging” should serve both as a reminder to readers of the inherent limitations of this unique medium, and as a catalyst for those of us participating here to consider again what we would hope to accomplish through the particular venue of the Mirror of Justice.
First, every reader of this blog would do well do begin by reading Amy Uelmen’s message, as it should an essential part of a virtual FAQ for the Mirror of Justice. Readers must appreciate that this weblog is a peculiar type of forum, in which the ideas expressed often are preliminary, tentative, and designed to advance discussion and raise questions both among ourselves and for the larger society. These postings are not the equivalent of a polished and carefully considered expression of firm views as as in a published journal article. This is not to say that any of us should be negligent in posting to the Mirror of Justice, that is, none of us should be careless or casual, because as Amy notes the words we speak do (potentially at any rate) have a broader reach to a larger segment of the population than an idle thought expressed in a coffee shop or faculty lounge. But at the same time, our readers should realize that not every word posted here reflects a fixed and determined point of view nor should the authors be held forever responsible for every provocative point offered or sincere query explored.
Thus, I regard the Mirror of Justice weblog as a conversation among friends and fellow disciples of Christ. Amy certainly is correct that it does not have the same features as a direct and personal connection made through a face-to-face contact. That is one of the limitations of this medium and can result in an artificiality to the conversation. Moreover, it is a conversation that unfolds before an audience. But in many respects, and here I turn to my second point, that is a very good thing.
By holding such a public conversation, we members of the Mirror of Justice attempt to model for others how people of diverse views sharing a common faith can interact with each other and seek common ground. By my reading of the blog postings thus far, we are accomplishing that purpose. In contrast with some listservs to which I belong (and these academic listservs are quite restrained in debating style compared to the deliberate heat generated by cable news and talk radio), the tremendous respect and desire to appreciate the other reflected in the posts thus far is most gratifying and also enlightening.
Moreover, the audience we are likely to attract (if the Mirror of Justice is successful in attracting any audience at all) will include many who will never attend an academic symposium and will never read what we submit as a finished publication product to a law review or other journal. The appeal of weblogs to an internet audience lies in their feel as an open dialogue unfolding almost in real-time. Thus, through the internet, and precisely because of the nature of the blog medium, we will have an opportunity to reach people we would not otherwise encounter with the message that Christ's Church has something to say about how we structure our legal system, make legal decisions, and use the law in society. By contrast, if we share our thoughts only through an academic journal article, or through a direct conversation with colleagues—valuable though those are (and the proper focus of most of our scholarly attention)—we will miss many of those nameless people. And some may searching and questioning and would value the chance to lurk on the sidelines of the debate, never revealing themselves but learning from the discussion.
Thus, I see the Mirror of Justice weblog as, yes, a good conversation among friends in the faith, but also as having the potential to be a missionary calling. Time will tell.
Tuesday, March 16, 2004
Greg raises some interesting issues in his description of the portion of the review board's report on the handling of sexual abuse by the clergy. This is an issue I have been thinking and writing about for a while, so I wanted to make a few observations about what should be considered "shameful" in the involvement of lawyers in these dreadful cases. Three different types of behavior have to be considered:
1. The behavior of bishops in treating complaints of sexual abuse as "legal" problems, i.e. as sources of potential legal liability for the diocese, and turning to lawyers as their principal advisers, rather than identifying the complaints as serious pastoral problems that must be remedied (and prevented in the future). Bishops themselves "legalized" the problem, or acquiesced in its being treated primarily (or exclusively) as a legal problem. Hence the large numbers of cases in which confidential settlement agreements "ended" specific complaints without any real consideration of the victims' suffering, and with no public exposure of the abusers -- and we all know the rest.
2. The behavior of lawyers, which had two aspects: failure as counselors and failure as litigators. As counselors: to what extent should lawyers have advised their bishop clients that treating a sexual abuse complaint as just another tort case, in which the principal goals should be minimization of financial damage avoidance of negative publicity, and deterrence of future claimants was: (a) wrong in light of the Church's spiritual responsibilities; and (b) not in the Church's institutional interest in the long run? As litigators: once claims were filed, to what extent did engaging in zealous advocacy (as one would for any client) in depositions, the court room and other litigation contexts itself undermine the Church's spiritual obligations?
3. The behavior of the Church's insurors: To what extent did hard ball litigation and scorched earth tactics take place once the insurance companies took over the litigation? It strikes me that many of the problems reported in the litigated cases sounded like insurance defense lawyers just acting the way they usually do. I do not have a good grasp, however, of when the insurance company was calling the shots, and when the bishps were.
It strikes me that the most "shameful" behavior here was really (1): the decisions of the bishops to treat these as legal problems that could be buried with a little money and lots of silence. That decision reflected their own desire not to deal with the problems in any serious way and to avoid any public scrutiny of either what happened or the way they dealt with it. To have expected lawyers to be the bishops' "conscience", as in (2), may have been a lot to expect from their lawyers, though this issue raises very interesting questions about a lawyer's ethical responsibilities, particularly when representing a religious organization that theoretically holds itself to a higher standard.
The question of how lawyers should have acted in litigators in these cases is a tough one: surely they should not have been expected to treat every allegation of fact, legal theory and claim for damages in every plaintiff's Complaint as truth not to be contested. On the other hand, recognition of their client's special character and responsibilities should have led at least to avoiding brutal ad hominem attacks on the alleged victims. Greg's colleague, Pat Schlitz, has pieces in COMMONWEAL, America, and Litigation arguing for fairly broad latitude for the Church in defending these cases. While I generally agree with Pat, my own piece in COMMONWEAL (see sidebar) uges a somewhat more constrained role for the Church in defending these cases.
