Legal Advice as Moral Perspective
Robert K. Vischer
University of St. Thomas, St. Paul/Minneapolis, MN - School of Law
Georgetown Journal of Legal Ethics, Forthcoming
U of St. Thomas Legal Studies Research Paper No. 05-03
The legal profession's many critics have long insisted that lawyers corrode social values by manipulating the law for the benefit of their clients while paying no heed to the wider impact of their work. This familiar charge has garnered new credence in light of the central roles played by lawyers in an already infamous triumvirate of recent public scandals. First, by appearing to offer a legal justification of torture, government attorneys stand accused of facilitating the mistreatment of prisoners held in the war against terrorism. Second, Enron's attorneys are blamed for facilitating the company's demise by providing legal cover for management's destructive obsession with short-term profit. Third, the Catholic Church's attorneys are seen as having exacerbated bishops' gross mishandling of the priest sex abuse crisis by adopting an aggressively adversarial stance toward victims.
Transcending the dominant caricature of lawyers as lacking social consciences, the article weaves the recent scandals into a story of the pervasive disconnect between legal advice and moral advice - a disconnect grounded in the profession's presumption that questions of legality can be sealed off from questions of the good. In a departure from leading academic critiques, however, the article casts moral lawyering as a dialogue to be cultivated, rather than the pursuit of a particular moral norm. Specifically, the article argues that an attorney's moral perspective is inexorably part of the interpretive dynamic that makes the attorney-client dialogue possible, whether acknowledged by the attorney or not. When the attorney's advice is pitched in exclusively legal terms, the moral component is not erased, but rather is forced into the background, where it is not susceptible to exploration by the client. This article traces the paths by which the attorney-client dialogue can be enhanced to delve beyond questions of law and engage the moral perspectives that invariably drive the representation.
Number of Pages in PDF File: 57
Keywords: Lawyers, ethics, professionalism, morality, attorney-client dialogue
Date posted: August 10, 2005