The Plaintiff as Person: Cause Lawyering, Human Subject Research, and the Secret Agent Problem

Abstract

Legal ethicists have long debated the circumstances, if any, under which a lawyer may ethically deviate from the traditional model of the client-attorney relationship by failing to zealously advocate for her client’s legally permissible goals. One camp (“the traditionalists”) has tended to insist that the lawyer, like the doctor, has an unwavering duty to single-mindedly dedicate herself to her client’s ends, lest she become a "double agent," while a second camp (“the critics”) has tended to argue that the primary aim of the lawyer should be justice.

This Note, which was cited as recommended reading in The Green Bag's Almanac of Exemplary Legal Writing of 2006, stakes out a middle ground in this debate about professional accountability and role morality by analogizing cause lawyers to physician-researchers.

I argue, against the traditionalists, that a lawyer need not single-mindedly pursue her client’s interests at the expense of her own values. Traditionalists often draw on analogies to the patient-doctor relationship to support the zealous advocacy model of lawyering. In fact, however, the human subject research that has been the mainstay of medical progress is a compromise between society’s need for that progress and a recognition of the physician as person, on the one hand, and the traditional understanding of the physician as fiduciary to (and, when therapy is scarce, zealous advocate for) her patients, on the other. The existence of a broad consensus both within the medical profession and in society at large that experimental research to which the patient-subject consents is ethical suggests that cause lawyering’s similar reprioritization of client and cause may also be ethical under similar circumstances.

Contrary to many critics, however, I argue that the client-attorney relationship must remain essentially client-centered. A lawyer who departs from the traditional model may not conscript her client into service to her cause without the client’s voluntary, informed consent — regardless of how just the cause is or how strongly the client does (or, in the lawyer’s view, should) identify with it. The attorney owes her client the opportunity to make a voluntary, informed decision about whether the client believes that the potential benefits of participating in the lawyer’s legal activism outweighs the risks.

In short, I argue that the real ethical problem of cause lawyering (and other nontraditional approaches) is not that of the double agent, but that of the secret agent — the lawyer who conceals from her client (whether consciously or not) her readiness to place her cause (or the common good, or the interests of other clients) above her client.

Keywords: Cause lawyering, legal ethics, professional responsibility, human subjects research