CONSCIENTIOUS OBJECTION IN THE PRACTICE OF LAW
Alvin Esau, Professor of Law, University of Manitoba. Visiting Scholar, U.B.C. Law School and Regent College, 1987-88
Speech at University of Victoria Law School, February 26, 1988
I. INTRODUCTION.
About a year ago, I debated the issue of civil disobedience at the Canadian Bar Association conference at Whistler. I believe that sometimes civil disobedience is justified, even by lawyers, but today I want to talk about a different, although related matter, before I comment on civil disobedience. I want to argue that as a lawyer you should consider exercising conscientious objection to the provision of some legal services, conscientious objection to some of the requests made by legal superiors, and conscientious objection to some aspects of lawyer styles of life.
II. CONSCIENTIOUS OBJECTION TO THE PROVISION OF SOME LEGAL SERVICES.
The most pressing issue is not whether you should ever as a lawyer break the law for moral purposes, but rather whether you should ever help a client do something that is arguably legal but which you firmly believe is immoral. However important the issue of civil disobedience is, you will be faced more frequently with the reality that to advance your client's legal goals may involve your causing or aiding in the commission of harms to identifiable third parties, or to the public. Thus, I want to consider conscientious objection by lawyers to lawful activity before talking about unlawful civil disobedience. I suspect, however, that these issues are connected, in the sense that those who are so anxious to uphold the so-called rule of law by prohibiting all lawyer civil disobedience, are actually nervous at a deeper level, not so much with the rule of law as a public ideology, but with the impact of disobedience on the professional ethic of legalism.
A. The Ethics of Legalism
The conventional approach to professional ethics is that of legalism. If you break the law, even for moral ends, you have presumptively acted unethically, but if you do for a client what the law does not prohibit, you have presumptively acted ethically, even if you believe that the client's goal is immoral. The job of a lawyer is not to judge the moral ends of the client but to advance the client's interest within the confines of the law. Professional ethics and personal ethics are different. Given your so-called duty to maximize client autonomy within the law, and given the systemic demands of the adversary system and other legal institutions, you must do things in the role of lawyer that you might not think right to do if you were acting outside the role of lawyer. You are not personally responsible for the moral impacts of your work as a lawyer, but rather you are only responsible to ensure that the impacts are legal, or at least arguably so. The ethics of legalism allow you to place aside many difficult moral issues, and conveniently adopt a kind of amoral posture of simply doing your job within the role demands of the profession and achieving the status, power, and financial security you are striving for.
Conventional professional ethics are comfortable in another sense as well, in being radically reductionist instead of realistic. Despite the oft-quoted rhetoric about duty to self, duty to the court, duty to other lawyers, duty to society, and so forth, the conventional approach really focuses on the zealous pursuit of the client's interest within the law, and all other interests that may be affected better look out for themselves. If they are not equally represented, or equally powerful, and you run over them, that is not your moral concern or responsibility. That is simply a market failure.
Now you might say that such a stark legalism is not really the conventional approach to professional responsibility. Lawyers are entitled and encouraged, after all, to counsel their clients in a more holistic fashion, raising non-legal factors and impacts in relation to all the alternative courses of action open to the client. But the point is that the conventional approach leans heavily on the ideology that once such counselling has been done, the lawyer should quite properly implement the decisions of the client so long as they are legal, even if the lawyer believes them to be immoral. Surely this is just a matter of respecting the client's moral autonomy. And you might argue, if you find this ultimate appeal to strict legality rather than morality troublesome, do not forget that lawyers individually and collectively have a particular duty, even more so than others in society, to work for law reform, substantively and procedurally. But of course the point is that the conventional position asserts that you may quite properly be personally lobbying to change a law that you think is unjust or get a law in place to remedy an injustice, and at the very same time you can professionally apply that same unjust law or take advantage of the same lack of a law to help your client commit harms on others, and this bifurcation is applauded rather than seen as morally questionable. Basically then, I think it is quite correct to say that despite the existence of various appeals to moral considerations in our professional practice, at bottom the conventional approach to the practice of law is that of legalism.
The conventional approach of legalism celebrates the distinction between the lawyer's personal views and the client's by insisting that we are really most professional when we do not identify with a client even as we instrumentally serve him or her, and we should insist that the public be forever reminded not to equate the client with the lawyer instead of turning to the legal system and law if criticism is to be offered for what the lawyer is accomplishing for a client. Professional independence is seen not in the refusal to take certain cases, but paradoxically in the very process of taking cases and making arguments that we do not personally believe are just. Despite the fact that most lawyers work almost exclusively for certain interests and not others, we celebrate the concept of professional detachment and independence by the idea that we are common legal carriers who argue on behalf of one interest in one case on one day, and then argue of behalf of the opposite interest in a different case the next day.
When pressed to justify the ethics of legalism, we do not say that we do so because it is convenient and comfortable to look only at legality, but rather we claim that it is morally wrong for lawyers to make some assessment on a case-by-case basis about whether the client's case or cause is moral, because moral justification is properly to be found in the overall, institutional morality of the rule of law and the operation of the adversary system and so forth. We might argue that lawyers who adopt the ethics of legalism are not really saying that morality does not matter, or that they are not morally accountable for what they do, but rather that the higher morality of the rule of law and the adversary system of dispute resolution morally justifies lawyer behaviour that at first blush seems morally problematic. The lawyer ought to do whatever the client wants so long as it is legal, because the role of the lawyer is to provide access to the law and foundational to our legal system is the notion that individuals should have a large sphere of freedom to decide for themselves what to do, to make choices that even a large majority might consider wrongful, but which nevertheless for a variety of prudential or principled reasons are left by the law for individual choice rather than constraint. The lawyer is an official of the legal system who preserves autonomy and freedom in society by facilitating client choices within the law and the lawyer violates that social role when he or she refuses to provide such access on moral rather than legal grounds. We argue that the "amoral" role behaviour of lawyers is really "a moral" role.
B. Turning to Morality and not just Legality
Now I do not accept this conventional approach of legalism and the bifurcation of personal and professional ethics and the supposed moral justifications for it, and I urge you not to accept it either. What you do for a client is still something you do, and you are morally responsible for it. You are morally responsible for both the ends that you pursue on behalf of others and the means you use to achieve the ends. Don't just pass the moral buck to the client or the legal system or the law, because such a move cannot always be sustained. However radical this may sound to you, I urge you to try to avoid doing immoral harm to others in the name of helping your client, and this means conscientious refusal on your part to serve some clients and causes, and conscientious refusal on your part to employ some immoral methods of lawyering to reach otherwise neutral or good client goals. Adopt the ethics of love, rather than the ethics of legalism. Love at least in the negative and minimal sense of not unjustifiably harming others. Loving our neighbors at least starts with not harming them, and then moves into the more difficult questions about what moral obligations we may have to help others. Loving our neighbors as persons like ourselves means treating them the way we would want to be treated, and not injuring them as a means to achieving the end sought by a client. A professional ethic that sees exclusively only the client as the neighbor and not also others who are affected by our actions may be thought to be simply a justifiable division of moral labour, but the reality is that sometimes no moral labour on behalf of other harmed interests is forthcoming, or even if it is, the object is still to achieve the harm despite the resistance. As an ideal, put a sticker on your desk and write in big letters on it, "Do no harm!"
Of course, this seems to be an impossible ideal and you will often be convinced that your client is in the right and it may be necessary to balance the just vindication of your client or some important principle of law with some harm to innocent others that simply cannot be avoided, or you will be convinced that the other parties that are affected are not innocent and you are not harming them but rather holding them accountable for the harm they have done to your client, or you will be convinced that the other interests are all adequately protected by other lawyers, or whatever. Perhaps in our interdependent world justice cannot be done without harm. But I think you will still find that there are clients you will refuse to serve given that legal conduct can violate the moral rights of others in profound ways.
Aside from rejecting legalism by asserting an alternative moral vision, another reason is factual. The fact of the matter is that the legal enterprise, the subjection of human conduct to so called rules, the invocation of state power to enforce so called legal rights, does not operate on the bases of objective and uncontroversial pre-existing knowledge of what conduct is illegal and what is not. In fact, the enterprise of lawyering to a significant degree involves arguing for what the law ought to be, not just in the courtroom but in the law office as lawyers apply the law to their client’s affairs. The ethics of legalism are based on a false jurisprudential assumption that law is a system of norms that stands outside the legal profession. Rather in significant ways law is what lawyers and judges say it is. Law is also what lawyers and judges say it ought to be. To say that your conduct as a lawyer is only constrained by the bounds of law begs the question as to whether morality can be separated from legality in establishing such boundaries in the first place.
C. Objections to Conscientious Objection
Numerous objections, too many to deal with adequately here, will immediately come to your mind in regard to my plea that you reject the ethics of legalism and instead exercise conscientious objection in the practice of law. But let me briefly make some suggestions in regard to the more obvious ones and justify my position in response to these objections.
1. Some Other Lawyer Will Do It.
You might say, for example, that if you do not act for a potential client to advance a goal that is within the law, but which you consider to be immoral, then some other lawyer surely will, so the goal will be accomplished in any case, so you might as well get the fee or the experience or whatever and do it yourself. But surely you cannot argue that if someone else is going to assault a victim if you do not do so first, that it is therefore right for you to commit the assault. The issue is rather whether you can prevent the assault from happening in the first place. But for the moment, I am not arguing here about when you can or should prevent harm done by others, by breaching confidentiality for example to prevent future harm, but only that you must start with avoiding complicity yourself in causing harm even if that may not help the victims at all. I am also going to avoid the issue for the moment about whether you still have a professional responsibility to help the client find another lawyer which some would argue is a kind of complicity. Saying no to a client is only one step in what it might mean for you to have moral integrity, but it is an essential step.
While you can express your moral views to clients and other lawyers, you should not impose your views on other free moral agents, but equally you should not be an amoral, instrumental hired gun yourself for whatever clients you can get. You are also an independent moral agent, and you should preserve and exercise that independence, partly because you cannot in the end separate your personal identity from the lawyering role. To a significant degree we become as persons what we do as professionals, since we spend so much time in that role, and if you have attempted to separate your moral life into two compartments, the personal and the professional, over time you become a disintegrated soul. Integrity means a fundamental integration of personal identity and professional practice rather than a separation which leads to personal disintegration. Furthermore, in the end I believe that not only will you be a better person for exercising conscientious refusal in the practice of law, but you will also be of greater help to the clients you do serve and to society, precisely because you are a better person, more able to bring moral wisdom to bear in professional judgement which is every bit as important to clients as legal skill. I believe that professional independence and integrity is not found in taking every and any case regardless of your views as to moral value, but rather from refusing to take cases that conflict with your own deepest moral sensibilities.
2. Other Lawyers Are Not Available and the Client is Entitled to Service.
A second objection to the conscientious refusal to advance legal immorality relates not to the argument that some other lawyer will do it anyway, but to the reverse argument that no other lawyers will do it or are reasonably available to the client, and therefore you must do it yourself in terms of some obligation to make legal services available, or due to an obligation to take unpopular causes, or whatever. Now the issue is not that the client will get it done anyway so you might as well do it, but rather that the client is entitled to do it, and if no other lawyer can provide access to this entitlement, than it is your professional obligation to do so. This objection is a strong one, but actually is used to justify far more than comes within its proper scope. Lawyers tend to say that because we arguably may sometimes have a professional obligation to advance cases or causes that we personally think are unjust, we might as well do so in every case.
First of all, we should at least clarify what the scope of any purported professional duty to make legal counsel available should be. As a general rule we have the privilege as lawyers of exercising conscientious refusal in the practice of law. Such an approach may run counter to the conventional approach of most lawyers and the ideology of the legal profession, but we may generally adopt it free from fear of professional discipline so long as our refusal or withdrawal does not unreasonably prejudice the client. Particularly in regard to withdrawal there are obviously principles of professional ethics that are needed to protect clients who are dumped for impermissible reasons or prejudiced by time or manner factors. But the idea that we must take certain cases only arises in exceptional circumstances of alternative lawyer scarcity and is not the general rule.
In England and in Australia, the situation for Barristers is different in the sense that there is a "cab-rank" professional rule that requires Barristers to take every case referred to them by solicitors, with only monetary, time, and competence factors of refusal allowed, and not any factor of the Barrister's personal views of the justice of the cause. If you are quite satisfied that the techniques of advocacy in the adversary system are morally acceptable, and that there are adequate limits to advocacy that prevent truth distortion, and power imbalances, and that the system works well to achieve the just resolution of disputes, you might actually like the English "cab rank" idea in that the lawyer is not identified in the public mind with the client, but rather is seen as an officer of the court who provides access to the system of justice to whoever is in need of access. However, if you find aspects of the adversary system morally troublesome, or if you affirm that the system is not in fact equally available to all because justice is largely bought and sold in a private market, or you think moral autonomy of lawyers to refuse cases should not be removed in any case, than you might be happy, as I am, that we do not have such a rule.
So we have no general professional obligation to personally deliver services to clients that we believe are causing unjustified harm to others, but the legal profession does collectively have an obligation to make legal services available, and that means, at least in a context where alternative lawyers are not available, that we cannot always be free to exercise the conscientious objection I am arguing for. The argument might be that the collective responsibility of the profession does include the provision of legal services to pursue even unjust ends simply because the ends are legal, and if no other lawyers are available than you should make yourself available.
One might attack this exceptional duty that we have in the context of alternative lawyer scarcity by simply denying that the profession has any collective duty to use a criterion of strict legality in delivering service at all, instead of a criteria of morality and justice. Such a move, however, would require extensive elaboration and defence in the context of a morally pluralistic and democratic society. It can be argued that we do live in a society where individual autonomy, even to do wrong, is often valued as being greater than legal constraint in the name of collective order and rightness. So, even if we accept for the sake of argument, a simplistic notion of the positivistic rule of law, I still think that even this exceptional duty to take cases is narrower than it is commonly thought to be. We might still consider the distinction between what the law demands of people or positively grants to people as opposed to what the law simply does not regulate.
If the law says that you must do something and you need a lawyer to get it done, or the law says that you have a positive right to something and you need a lawyer to exercise that right, than indeed in these contexts we may arguably sometimes have a professional duty to take cases that we personally believe cause immoral harm to others, because no other non-objecting lawyers are reasonably available. Even in such cases you might refuse your services if you felt that the cause was so fundamentally unjust that you would be compromising your moral integrity in taking the case. This would now be professional civil disobedience, however, and not simply permissive conscientious objection, and you would have to consider whether to resign as a lawyer or at least affirm the right of the law society to discipline you.
But it is often wrong to say that someone has a legal right to do something and therefore to have a lawyer help him or her to do it, just because there is no apparent law that prevents him or her from doing it. For one thing, the law is not a list of separate rules. Rather the law as a whole contains a normative theory of justice, of morality, that may well proclaim that some action for which a rule does not seem to exist is nevertheless against the law.
Even if you do not resort to the spirit of the law argument, you might more properly say that someone has a legal privilege in this context but not a legal right, which implies that someone else must have a duty to vindicate that right. Just because something is not illegal does not mean that the legal profession must therefore provide a service to the person to achieve the goal however immoral it is. If every lawyer in the country conscientiously refuses to act, then it is commonly argued that the legal profession has in effect legislated and imposed its moral views on the client. I think this is not so. If every lawyer has refused to act than the client has simply not been able to morally convert someone to come to his or her aid, in a context where no legal duty exists on anyone to do so. Clients do not have a legal right to force lawyers against their own moral judgments to come to their aid simply because what they want to do is not apparently illegal. There must be rather some actual positive legal decision like the positive right to counsel in criminal cases for example, that gives rise to a collective obligation on our part to provide service. I would also apply this reasoning to the purported duty to refer the client to another lawyer if you conscientiously refuse to serve. My argument would be that in some cases you do not even have to help the client get another lawyer, but in other cases you do have such a duty when you conscientiously refuse to serve.
The real objection, however, to this view that some client's goals need not be serviced at all by any lawyer because the goals are really a matter of morality and not strictly access to law, turns not on these fine points about what we really mean by a legal right, but rather on ideological considerations. Indeed, the arguments just made might be seen as another form of purely legalistic reasoning. The real issue is a moral one. Should we place individual autonomy to do wrong as a higher moral principle for making decisions to serve clients than we do the moral principle of not harming others? I do not believe that lawyers must accept the conventional ideology that individual autonomy to do wrong when no legal constraints exist is itself part of the legal foundations of society giving rise to legal obligations on lawyers to implement all client choices that are not illegal. This is not law but rather moral ideology, an ideology that we can reject in favour of a view that where law ends, the role of moral cooperation or non-cooperation is fully open to lawyers, as is it is open to others in society. My call to exercise conscientious refusal in the practice of law is obviously connected to my rejection of some aspects of the ideology of liberal individualism which I view as becoming dangerously excessive in our society.
But I have conceded for the moment that our personal conscientious objection to the delivery of legal services may be restricted to a degree by our membership in a profession that has a collective obligation to provide legal services in some limited circumstances, when the client is really legally entitled to have his or her choice implemented. This exceptional obligation should not, however, make us tear the "do no harm" sticker from our desk and adopt the ethics of legalism instead.
3. All Lawyers Could Not Be Conscientious Objectors
A third and closely related objection to my plea for you to conscientiously refuse to serve clients when such service harms others, is the claim of universalizability. Now the argument is not that someone else will do it anyway, or that no one else is available, but rather that since all lawyers could not coherently adopt this approach, I better not do so. Suppose that everyone in the profession ditched the ethics of legalism and conscientiously refused to take cases that while legal were thought by them to be unjust or to unjustifiably hurt others, or whatever? This is manifestly not going to happen, but suppose it did? What would happen to the rule of law and to the liberal idea of having only restraints on conduct that are linked to democratic or official law promulgation and enforcement? Can we consistently take the position of conscientious refusal only because others do not do so and therefore serve as the safety valve for us to live by our so-called moral integrity? Does our integrity depend on others not having the same integrity that we demand of ourselves?
At one level the way to meet this objection is to turn the tables and first look at whether the ethics of legalism are presently universalizable and coherent in a way more satisfactory than this alternative vision of lawyer conscientious refusal. When we do try to do this, we discover that the ethics of legalism are more a matter of conventional rhetoric than actual reality. As lawyers we loophole hunt and strain to avoid the spirit of the law to advance our client's interest supposedly within the law. Law is actually selectively avoided in this way as much as it is applied. Legal formalism is a kind of lawlessness in the end. In reality lawyers are remarkably instrumental about law even as they idolize the concept of the rule of law. In one case that I was involved in, the lawyer advised his client to break a contract because the cost of enforcing the contract on the other side outweighed the purely monetary damages that might be awarded. Compliance costs are weighed against breach costs. So much for the ethics of legalism! Furthermore, the ethics of legalism might be quite serviceable if in fact law was a process of empowerment and restraint equally applicable to all in society. But this is manifestly untrue. Law often arises not out of a social consensus about what justice requires, but rather law is made in the law office, in the courts, in administrative tribunals, and even in the legislatures by a process of power conflicts where often it is might that makes right. Legal services, despite legal aid, and the admirable efforts we make to increase equal access, are still to a significant degree in the hands of the powerful interests in our society. Furthermore, lawyers do not just apply pre-existing legal norms that are reasonably clear and determinative, but rather lawyers are creative. Law is significantly open rather than fixed. Lawyers help to make law all the time in favour of the interests they represent. Thus, to say that the ethics of legalism provide the proper moral principle for service to clients ignores the fact that lawyers are instrumental in manipulating and creating and avoiding the law in the first place on behalf of some in society and not on behalf of all.
In such a context, it is most crucial for you to ask yourself, "What kind of a lawyer do I want to be?" "What clients and causes do I want to spend my life serving?" To adopt the ethics of legalism in the present context is also to make a moral, political choice to serve some interests and not others, just as is my alternative vision of making that choice explicitly with reference to morality rather than pure legality. To think that law is separate from politics in the sense that the political issues are over once the law is in place and you are only now dealing with law and not politics is simply untrue. The practice of law is supremely a political event most of the time. Thus, to concede that if all lawyers acted as the gatekeepers of justice in such a way that some people could not harm others in the name of law, than so much the better for our legal system than the present situation of unequal access to law, of law manipulated by power, of legalism as rhetoric and not reality.
But at another level you might still object that even if in reality the ethics of legalism are a morally flawed form of delivery of legal services, ideally we would still want to affirm the moral autonomy of clients to be constrained only by the official process of law and not by lawyers refusing to act, so you cannot universalize conscientious objection. Such an argument, as I have said, presupposes some theory of positivism and excessive individual autonomy, which I think cannot be morally sustainable. However, let me just add here that my claim for the moment does take for granted that we are in the context of moral pluralism. By universalizability I am not saying that one particular view of harm to others or of morality will be imposed by lawyers but only that lawyers in the context of moral pluralism should refuse cases on the basis of their own most deeply held moral convictions. Each lawyer should not fundamentally act for ends or by means that contradict his or her own deepest moral convictions. That is what I am willing for the moment to universalize, rather than some actual view of morality. I am not here trying to argue that my moral values can be demonstrated in some philosophically acceptable fashion to be true for all, but only that I do have deep commitments to certain values that should not be separated from my work as a lawyer but rather should find expression in my vocation. I have also conceded that even in a situation where all lawyers were willing to exercise conscientious objection, we could not do so in those situations where the law was not merely permissive but positively granted or demanded the client's goal, and no other non-objecting lawyers were reasonably available. I will grant that much to the rule of law.
4. Some Contexts of Lawyering Do Not Allow Conscientious Refusal
Now, a fourth objection might be that conscientious refusal of clients may be acceptable only in some legal service contexts and not others. Perhaps it is acceptable in non-litigation settings where no impartial judge is present to supervise and vindicate the interests of all the parties and where other interests are often not represented at all. Perhaps even in some civil litigation contexts the lawyer need not advance or defend unjust, but arguably legal, goals. But how about criminal litigation? You might argue that society has made a legal choice to grant all sorts of legal rights to those accused of crimes, including the right to counsel, the right to remain silent, the right to a presumption of innocence, and the right to a determination of the issue of guilt beyond a reasonable doubt in an adversarial trial. No matter how heinous the crime, it is very important that the state follow a carefully controlled process if we are to have a society that respects the dignity and freedom of all. In this context we often strive to help factually guilty people avoid accountability for their crimes if possible, but we say we are only doing our socially approved jobs on one side of the case, just as the prosecutor and judges and juries are doing theirs. It is for the court to ultimately decide the case and not for us to pre-empt that decision by exercising our moral judgement about who we will serve.
I respect this view. I am not arguing that you never can find a coherent moral justification for taking all cases in some settings by appeals to the higher social value of institutional role, but only that you must then really believe in the morality of the role. If you think the criminal trial process as we know it operates in a morally acceptable fashion and is necessary to preserve due process and human dignity in society, than you may well feel comfortable taking all cases and advancing them constrained only by the law and the norms of professional responsibility, and not by any case-by-case moral concerns about striving to help persons escape accountability and perhaps victimize others, or whatever. But if you do not feel this way, then I urge you to be as selective in your means and ends of advocacy as in any other area of legal practice. What you do in the adversary system is still something you do, and you can't just pass the moral buck to the system. The point is that you still choose or not to act in it, and if you act in it than you should be convinced that it can bear the moral weight you place on it.
I personally have moral difficulties with the role demands of the adversary system because I view some of the conventional role demands as unnecessarily hurtful to witnesses and others, as too much geared to tactics rather than truth, as too prone to procedural power games rather than appeals to substantive justice. As Jesus associated with the social rejects, the tax collectors, prostitutes, and the thief on the cross, so caring for and counselling and pleading for justice and reconciliation on behalf of the guilty is one of the greatest ministries of the lawyer. I have little difficulty with most of the substantive principles of criminal liability and defences which seem to me to be essential moral principles of responsibility. I can also concede the need for controlling state power by the vindication of certain rights that apply to the factually guilty as well as the innocent. But after that, there are still some aspects of advocacy that I find morally offensive. The issue then becomes whether I must reject all advocacy because it is a kind of systemic activity where everyone must perform the same way or whether I can still be selective about cases and tactics without violating client entitlements or expectations.
D. Points of Clarification and Caution
I have attempted to comment on four objections to the view that you should refuse to collaborate with what you believe is immorality even if it is legal, but there remain some points of clarification, and caution that should be noted.
First, I am certainly not saying that you must always agree with your clients before you can accept them. There may be client goals that you do not agree with personally but which you can still accept as not leading to unjustified harm to others. I affirm that the role of the lawyer, while open to conscientious refusal to serve, is still a role where the lawyer ultimately chooses to serve the client's interests and not his or her own interests. Indeed, we must have rules that protect vulnerable clients from lawyer self interests that compromise client service.
Furthermore, sometimes you obviously will face a conflict of harms where there are principles of law that you may feel are morally worthy of being upheld and vindicated even if you feel that a particular client's goal is harmful. We might cite the classic example of the Jewish lawyer, who believes in a very wide conception of free speech, and therefore defends a Nazi organization's right to hold a demonstration. The lawyer most certainly thinks the client's views and actions are morally repulsive and even thinks the demonstration is damaging to people, but nevertheless the lawyer thinks the overall good of free speech is greater than the harm of allowing the demonstration. Such a lawyer is not just adopting the ethics of legalism but is making a serious moral decision to defend the morality of a legal principle as he or she sees it. I am not saying that freedom within the law to do harm cannot ever be morally defended by the greater value of freedom, but only that this should not always be the uncritical presumption. For example, I have such a strong moral commitment to freedom of religion that I might defend some clients with ludicrous and arguably even harmful ideologies and practices. Choices that involve moral risk and ambiguity cannot be avoided in the practice of law.
By arguing for conscientious refusal to serve and moral responsibility for serving, I am acknowledging to a degree that the public should identify the lawyer with the client, but only to the limited extent of saying that the lawyer did morally choose to serve, but not necessarily because the lawyer agreed with the client. By saying that law and morality are not the same, and that sometimes what is legal is still immoral, I do not want to leave the impression that law is never moral. Quite the contrary! Sometimes the systemic morality of the substance of law or legal process does morally justify the acceptance of cases that viewed individually might be seen as causing harm but viewed as a matter of social principle and precedent might be seen as worthy of acceptance.
Secondly, there may well be prudential reasons for refusing cases. Sometimes it is said, even within the framework of legalism, that while you may properly serve clients whose goals you personally find morally repulsive, perhaps you should not do so because your personal views may in the end lead you to not serve the client as well as a lawyer without such moral revulsion would. The reverse is also argued. Sometimes personal agreement with the client and too close identification with the client is a reason not to serve. A lawyer who is not identified with a client is better able to serve the client, especially in unpopular cases. I do not deny any of this, but it is not the issue I am dealing with. I am arguing for conscientious refusal of clients, not because you cannot serve them well if you took the case, but rather simply because you should not morally collaborate in reaching results that you find morally offensive.
Thirdly, it might be useful to distinguish between total conscientious refusal to serve a client and qualified acceptance of a client. While you must make sure you do not use your professional status to dominate and manipulate the client into accepting your moral views, you are free to limit the scope of your representation of a client if the client consents to such a limitation. You may then accept the client, but you have qualified what you are prepared to do for him or her. You may for example set a limit to the methods of advocacy that you will employ by rejecting the use of some tactics that are not per se impermissible by conventional standards but which you think are immoral. Acceptance by the client of qualifications to your representation can only be legitimate if the client has knowledge of what he or she is possibly giving up by not going to a different lawyer.
Fourthly, one practical difficulty is that sometimes we may not really be able to assess the goal of the prospective client at the point of deciding whether to serve or not, but only later after the client has already become our client and has relied on us. Sometimes we may have to proceed rather than withdraw because to withdraw would be morally unfair to the client even if we felt that what the client was doing was harmful to others. We cannot completely avoid such moral dilemmas in the practice of law.
Fifthly, another danger is that in talking about the refusal to provide legal services we may leave the wrong impression. We should not just talk about encouraging lawyers to refuse to provide legal services on moral grounds, when the more significant problem is precisely the immoral lack of delivery of legal services to many who need and deserve legal services. We need to speak as much about our moral duty to deliver services as we do about any conscientious refusal to do so.
Sixthly, my argument for the moment is that you should practice conscientious refusal in the practice of law, not conscientious refusal to the practice of law. I respect those who take the view that you cannot be both a good person and a good lawyer and therefore you should conscientiously refuse to be a lawyer at all. But I disagree with that view. The practice of law is almost as wide in scope as life itself. We can help clients and society as lawyers without compromising our moral integrity. For example, if you totally reject the adversary system you can helpfully spend your life as a lawyer working as a mediator. There are lots of clients who need help with matters that do not unjustifiably hurt others. There are many areas of legal specialization, and many different contexts for lawyering. Finally, we must stop seeing roles in the legal system as having an inflexible, fixed necessity about them. To a significant degree we make the role what it is, rather than having the role imposed on us.
E. Moral Conversations, Conversions and Conscientious Objection
Finally, I want to deal with the most compelling argument of all that might be seen as being in opposition to conscientious objection but which I think might be seen rather as a position which contextualizes and modifies it rather than denies it. The perspective comes from Thomas Shaffer, in his book, On Being a Christian and a Lawyer (1981). If Shaffer was listening to this lecture, I imagine that he would be fully affirmative of my rejection of the ethics of legalism, but he would not agree with the call to conscientious objection, at least as I have presented it so far.
Shaffer might say that what I have said so far fits into what he calls the ethics of isolation. The client has one moral view, and the lawyer has a contrary and conflicting moral view. The lawyer refuses to serve the client. The client can go elsewhere. Lawyer and client each preserve their own separate moral integrity as it were. But this vision is perhaps as easy, as comfortable, as escapist, as isolating as the ethics of legalism are. For Shaffer the model of the lawyer-client relationship is not legalism or moral isolation but rather interactive and interdependent moral conversation and even conversion.
We have come to realize how much lawyers dominate and manipulate their clients even while they affirm a hired gun view of lawyering. Often lawyers do morally troublesome things and say that they are just doing what the client wants even though they have never really found out what the client wants. Lawyers often attribute ends to the client and means to reach that end without real moral dialogue with the client. But in reaction to this, we hear a great deal about client centred practice, which at bottom often takes the concept of the moral autonomy of the client to the length that we should never really exercise any moral influence that might lead to a change in the client's view of what she or he wants or needs. Acceptance of the client is everything and moral influence on the client is completely excluded. To be a prophet to a client, or to presume to make a moral suggestion, would be an impermissible violation of client autonomy, even if the influence was not manipulative or paternalistic, but was honest, open, and respectful.
Instead of understanding the moral autonomy of clients as consisting of having the ultimate right to decide what to do, we have now turned moral autonomy into a kind of burden, a kind of individualized freedom that is really abandonment and isolation. The client must decide alone without any help from me as his or her professional advisor. I might be dominant and manipulative so I will not engage in moral reasoning at all but just lay out the options. That is probably the message in every clinical law course taught in law school. We treat morality as something fixed and given that is brought into the lawyer-client relationship where moral positions are simply asserted and accepted or rejected, rather than seeing the relationship itself as a place of mutual moral conversation, influence, and interdependence.
If I read Shaffer correctly, I think he is very sensitive to the problem of paternalism and domination in interviewing and counselling, but I think he would say to us, "Stop believing that you should not try to influence your client and that your client should not influence you." We are not really morally autonomous, but rather we live in relationships, and in community where we challenge, confront, converse and hold each other accountable. If we are going to counsel others to take morality, and not just law, into account, then we better be humble enough to have them counsel us in turn. It is our clients who can often teach us what it means to be better persons and not the other way round.
I think Shaffer would at least call us not to focus so quickly on the issue of whether we will conscientiously object to serve or not, which has the danger of moral isolation and even moral arrogance, but rather focus on the view of the lawyer-client relationship as having a goal that is fully open to moral conversations and conversions. Such a view accepts the moral risk that the client might still in the end pursue a course of conduct that we will consider morally wrong, and we will then have to decide whether to exercise conscientious objection or perhaps whether instead we will still serve the client because not to do so would be inconsistent with the care and trust that makes the moral conversation real in the first place. For Shaffer our moral failure is not so much our association with clients bent on immorality, but rather our failure to bear witness.
Shaffer, I believe, in the end would also seek to avoid lawyer collaboration with immoral ends or means, even if they were legal. He would not disagree with my position on that, but he would see conscientious objection like civil disobedience as a last resort. Shaffer's approach adds the necessary dimension of both realism and radicalism. Realism in the view that we cannot always maintain "clean hands" by escaping out of a situation rather than wrestling with it, and radicalism in actually suggesting that we can try to prevent legal immorality rather than just avoiding personal complicity in it.
III. CONSCIENTIOUS OBJECTION TO SOME REQUESTS OF LEGAL SUPERIORS
In saying that you should exercise conscientious objection and not use your legal skills to advance unjust causes, you will immediately think of yourself, however, not in practice on your own, but as an articling student, and then after that, as a salaried associate in a law firm, not really choosing work at all, but having work given to you by legal superiors. My argument therefore is that you should conscientiously object to legal superiors who may want you to work on files that require you to use your legal skills in ways that you think unjustifiably harm others. The principle is the same but now the stakes are higher. Not only do you have your job to think about in terms of harm to others like your spouse and children who may depend on you and might suffer if you were fired for your conscientious refusal, but you also have the problem of associational identification. Just as confidences reposited with a lawyer become vicariously confidences of all the lawyers in a firm, so we might argue that we individually may have at least some moral responsibility for what our firm does as a firm and not just what we do individually within the firm.
Perhaps, we simply cannot take this vicarious responsibility too far if we are affirming a degree of moral pluralism and autonomy in the first place. There are some small firms where all the lawyers share a particular religious affirmation, or whatever, and basically agree as to where to draw the line in terms of ends pursued or means used to reach the ends. But such situations are rare, and some would argue not ideal. If we want to be able to be free in a firm to refuse files on moral grounds, irrespective of our status on a hierarchy, then we in turn must allow others in the firm to accept files that they approve of on moral grounds even when we disapprove. But again, following Shaffer, I personally think we can go too far with this individual moral autonomy argument. This buys right into the same sort of ideology that in the end supports the ethics of legalism. The law firm should be a moral community, where people engage in moral dialogue and even hold each other accountable. I would want to be part of a law firm that has a measure of space for individual freedom, but I would also want the firm to be more than a bunch of individual lawyers sharing office space. I take seriously the idea of the "spirit of an organization." Law firms have collective spirits that transcend any one person in the firm.
So, I am suggesting that you should exercise conscientious objection to legal superiors who seek your assistance to do what you believe is immoral, even if legal. Many of them will respect your decision, but many will not and will view you with disdain for not accepting the ethics of legalism and will see to it that you do not get a job in the firm beyond your current appointment. But you cannot pass the moral buck to the lawyer who is your superior, who you might argue really has the conduct of the file, anymore than you can pass the buck to the client or the law or the legal system. What you do on the file is still something you do and are morally responsible for. Furthermore, at some stage the associational identification, if communities are to be meaningful at all, does matter to you. Not only do you need to know what moral freedom will be granted to you as a lawyer in a firm, you also want to fundamentally consider what kind of lawyers you want to be associated with.
IV. CONSCIENTIOUS OBJECTION TO SOME LAWYER STYLES OF LIFE
As if this isn't enough, I would argue that you might consider exercising conscientious objection to some lawyer styles of life. Law is practiced in a way that often requires you to adopt priorities that you might view as harmful to yourself and those who you are in relationship with, even if everything you do as a lawyer is most helpful to clients and to society. Even with specialization, we must all face the fact that law is ever changing, that practice seems to be getting more demanding and interdependent, and that to maintain professional competence requires hard work, long hours and the inevitable sacrifice of some other interests that we may have. There will be those who can quite seriously devote their whole lives almost exclusively to the practice of law and make the profession itself their primary community and I do not necessarily find fault with this. But I think there is something systemically wrong with the practice of law if we must all adopt a lifestyle that relegates life outside of the practice of law into the dustbin of marginal time, if we are to be competent or if we are to advance in the profession.
I believe that it is commonplace in the profession of law to seriously neglect and harm ourselves and those we are in relationships with, in the name of achieving professional success. There are many causes for broken relationships in our community, but who can deny that much of the personal and family wreckage prevalent among professionals is attributable to our ideology that we must place professional advancement and career fulfilment at a higher priority than we do our spouse, our children, our friends, our church, or whatever? Why is it that many professions that are so geared to helping people, often translate into lifestyles that are so harmful to the professionals themselves and their families? In most occupations the general trend has been to humanize labour by reducing the hours of work and spreading the work to more people, by providing safer working conditions, and by providing greater enjoyment of work in terms of variety and so forth. But in the traditional professions, like medicine, law, the ministry, and others, the demands of the professions seem to be increasing, not decreasing.
Indeed, we sometimes glory in this concept that we have special, extraordinary responsibilities and our treadmill existence as professionals shows our toughness and self sacrifice. You see this sort of thing when young Doctors are doing their residencies in hospitals and have to work for 48 hours without sleep and then the profession says this is actually necessary and good instead of demonically stupid.
My argument is that much of this is actually self inflicted. Law practice as an instrumental way to gain a large share of financial security or status often backfires. You spend such incredibly long hours in the practice to gain the inflated financial rewards you seek, that you have no time to enjoy the financial rewards anyway. You might say that at least your family has the benefit of your money even if they don't see much of you. But the drive to achieve the trappings of success by having ever more opulent offices and locations and billings is a trap you might conscientiously refuse in the name of preserving your life. Of course, for many lawyers, law practice is not an instrument to financial success, or status, or whatever, but rather law practice is inherently desirable as a vocation for its own sake. We absorb ourselves in the law for longer and longer hours because we love it. But you might seriously consider whether you are morally free to be so absorbed, if you have committed yourself to be in relationships with others.
V. CONCLUSION
You may find that all this talk about avoidance of harm to others is too negative or too consequentialist or too naive as a moral criterion for conscientious refusal. You may be right, but then at least put a sticker on your desk that says, "Exercise moral reasoning!" Or "Think morality and not just legality!"
Jesus said that the teacher of law was like a householder who brought out of his or her storeroom new treasures as well as old. Perhaps some of you will think that what I have said is a treasure? It is rough and uncut, and you must take it and refine it in the heat that will come in the crucible of your own life. Perhaps some of you will think that what I have said is more akin to dung than treasure? But if your arguments for rejecting my position are grounded in your own coherent commitments to a vision of the right and good in lawyering, then I respect you, while I may disagree. But if your disagreement stems from some notion that to exercise conscientious objection makes it harder for you to get your partnership, or your Mercedes, than I ask you to reconsider for the sake of your soul.
Alvin Esau, Professor of Law, University of Manitoba. Visiting Scholar, U.B.C. Law School and Regent College, 1987-88
Speech at University of Victoria Law School, February 26, 1988
I. INTRODUCTION.
About a year ago, I debated the issue of civil disobedience at the Canadian Bar Association conference at Whistler. I believe that sometimes civil disobedience is justified, even by lawyers, but today I want to talk about a different, although related matter, before I comment on civil disobedience. I want to argue that as a lawyer you should consider exercising conscientious objection to the provision of some legal services, conscientious objection to some of the requests made by legal superiors, and conscientious objection to some aspects of lawyer styles of life.
II. CONSCIENTIOUS OBJECTION TO THE PROVISION OF SOME LEGAL SERVICES.
The most pressing issue is not whether you should ever as a lawyer break the law for moral purposes, but rather whether you should ever help a client do something that is arguably legal but which you firmly believe is immoral. However important the issue of civil disobedience is, you will be faced more frequently with the reality that to advance your client's legal goals may involve your causing or aiding in the commission of harms to identifiable third parties, or to the public. Thus, I want to consider conscientious objection by lawyers to lawful activity before talking about unlawful civil disobedience. I suspect, however, that these issues are connected, in the sense that those who are so anxious to uphold the so-called rule of law by prohibiting all lawyer civil disobedience, are actually nervous at a deeper level, not so much with the rule of law as a public ideology, but with the impact of disobedience on the professional ethic of legalism.
A. The Ethics of Legalism
The conventional approach to professional ethics is that of legalism. If you break the law, even for moral ends, you have presumptively acted unethically, but if you do for a client what the law does not prohibit, you have presumptively acted ethically, even if you believe that the client's goal is immoral. The job of a lawyer is not to judge the moral ends of the client but to advance the client's interest within the confines of the law. Professional ethics and personal ethics are different. Given your so-called duty to maximize client autonomy within the law, and given the systemic demands of the adversary system and other legal institutions, you must do things in the role of lawyer that you might not think right to do if you were acting outside the role of lawyer. You are not personally responsible for the moral impacts of your work as a lawyer, but rather you are only responsible to ensure that the impacts are legal, or at least arguably so. The ethics of legalism allow you to place aside many difficult moral issues, and conveniently adopt a kind of amoral posture of simply doing your job within the role demands of the profession and achieving the status, power, and financial security you are striving for.
Conventional professional ethics are comfortable in another sense as well, in being radically reductionist instead of realistic. Despite the oft-quoted rhetoric about duty to self, duty to the court, duty to other lawyers, duty to society, and so forth, the conventional approach really focuses on the zealous pursuit of the client's interest within the law, and all other interests that may be affected better look out for themselves. If they are not equally represented, or equally powerful, and you run over them, that is not your moral concern or responsibility. That is simply a market failure.
Now you might say that such a stark legalism is not really the conventional approach to professional responsibility. Lawyers are entitled and encouraged, after all, to counsel their clients in a more holistic fashion, raising non-legal factors and impacts in relation to all the alternative courses of action open to the client. But the point is that the conventional approach leans heavily on the ideology that once such counselling has been done, the lawyer should quite properly implement the decisions of the client so long as they are legal, even if the lawyer believes them to be immoral. Surely this is just a matter of respecting the client's moral autonomy. And you might argue, if you find this ultimate appeal to strict legality rather than morality troublesome, do not forget that lawyers individually and collectively have a particular duty, even more so than others in society, to work for law reform, substantively and procedurally. But of course the point is that the conventional position asserts that you may quite properly be personally lobbying to change a law that you think is unjust or get a law in place to remedy an injustice, and at the very same time you can professionally apply that same unjust law or take advantage of the same lack of a law to help your client commit harms on others, and this bifurcation is applauded rather than seen as morally questionable. Basically then, I think it is quite correct to say that despite the existence of various appeals to moral considerations in our professional practice, at bottom the conventional approach to the practice of law is that of legalism.
The conventional approach of legalism celebrates the distinction between the lawyer's personal views and the client's by insisting that we are really most professional when we do not identify with a client even as we instrumentally serve him or her, and we should insist that the public be forever reminded not to equate the client with the lawyer instead of turning to the legal system and law if criticism is to be offered for what the lawyer is accomplishing for a client. Professional independence is seen not in the refusal to take certain cases, but paradoxically in the very process of taking cases and making arguments that we do not personally believe are just. Despite the fact that most lawyers work almost exclusively for certain interests and not others, we celebrate the concept of professional detachment and independence by the idea that we are common legal carriers who argue on behalf of one interest in one case on one day, and then argue of behalf of the opposite interest in a different case the next day.
When pressed to justify the ethics of legalism, we do not say that we do so because it is convenient and comfortable to look only at legality, but rather we claim that it is morally wrong for lawyers to make some assessment on a case-by-case basis about whether the client's case or cause is moral, because moral justification is properly to be found in the overall, institutional morality of the rule of law and the operation of the adversary system and so forth. We might argue that lawyers who adopt the ethics of legalism are not really saying that morality does not matter, or that they are not morally accountable for what they do, but rather that the higher morality of the rule of law and the adversary system of dispute resolution morally justifies lawyer behaviour that at first blush seems morally problematic. The lawyer ought to do whatever the client wants so long as it is legal, because the role of the lawyer is to provide access to the law and foundational to our legal system is the notion that individuals should have a large sphere of freedom to decide for themselves what to do, to make choices that even a large majority might consider wrongful, but which nevertheless for a variety of prudential or principled reasons are left by the law for individual choice rather than constraint. The lawyer is an official of the legal system who preserves autonomy and freedom in society by facilitating client choices within the law and the lawyer violates that social role when he or she refuses to provide such access on moral rather than legal grounds. We argue that the "amoral" role behaviour of lawyers is really "a moral" role.
B. Turning to Morality and not just Legality
Now I do not accept this conventional approach of legalism and the bifurcation of personal and professional ethics and the supposed moral justifications for it, and I urge you not to accept it either. What you do for a client is still something you do, and you are morally responsible for it. You are morally responsible for both the ends that you pursue on behalf of others and the means you use to achieve the ends. Don't just pass the moral buck to the client or the legal system or the law, because such a move cannot always be sustained. However radical this may sound to you, I urge you to try to avoid doing immoral harm to others in the name of helping your client, and this means conscientious refusal on your part to serve some clients and causes, and conscientious refusal on your part to employ some immoral methods of lawyering to reach otherwise neutral or good client goals. Adopt the ethics of love, rather than the ethics of legalism. Love at least in the negative and minimal sense of not unjustifiably harming others. Loving our neighbors at least starts with not harming them, and then moves into the more difficult questions about what moral obligations we may have to help others. Loving our neighbors as persons like ourselves means treating them the way we would want to be treated, and not injuring them as a means to achieving the end sought by a client. A professional ethic that sees exclusively only the client as the neighbor and not also others who are affected by our actions may be thought to be simply a justifiable division of moral labour, but the reality is that sometimes no moral labour on behalf of other harmed interests is forthcoming, or even if it is, the object is still to achieve the harm despite the resistance. As an ideal, put a sticker on your desk and write in big letters on it, "Do no harm!"
Of course, this seems to be an impossible ideal and you will often be convinced that your client is in the right and it may be necessary to balance the just vindication of your client or some important principle of law with some harm to innocent others that simply cannot be avoided, or you will be convinced that the other parties that are affected are not innocent and you are not harming them but rather holding them accountable for the harm they have done to your client, or you will be convinced that the other interests are all adequately protected by other lawyers, or whatever. Perhaps in our interdependent world justice cannot be done without harm. But I think you will still find that there are clients you will refuse to serve given that legal conduct can violate the moral rights of others in profound ways.
Aside from rejecting legalism by asserting an alternative moral vision, another reason is factual. The fact of the matter is that the legal enterprise, the subjection of human conduct to so called rules, the invocation of state power to enforce so called legal rights, does not operate on the bases of objective and uncontroversial pre-existing knowledge of what conduct is illegal and what is not. In fact, the enterprise of lawyering to a significant degree involves arguing for what the law ought to be, not just in the courtroom but in the law office as lawyers apply the law to their client’s affairs. The ethics of legalism are based on a false jurisprudential assumption that law is a system of norms that stands outside the legal profession. Rather in significant ways law is what lawyers and judges say it is. Law is also what lawyers and judges say it ought to be. To say that your conduct as a lawyer is only constrained by the bounds of law begs the question as to whether morality can be separated from legality in establishing such boundaries in the first place.
C. Objections to Conscientious Objection
Numerous objections, too many to deal with adequately here, will immediately come to your mind in regard to my plea that you reject the ethics of legalism and instead exercise conscientious objection in the practice of law. But let me briefly make some suggestions in regard to the more obvious ones and justify my position in response to these objections.
1. Some Other Lawyer Will Do It.
You might say, for example, that if you do not act for a potential client to advance a goal that is within the law, but which you consider to be immoral, then some other lawyer surely will, so the goal will be accomplished in any case, so you might as well get the fee or the experience or whatever and do it yourself. But surely you cannot argue that if someone else is going to assault a victim if you do not do so first, that it is therefore right for you to commit the assault. The issue is rather whether you can prevent the assault from happening in the first place. But for the moment, I am not arguing here about when you can or should prevent harm done by others, by breaching confidentiality for example to prevent future harm, but only that you must start with avoiding complicity yourself in causing harm even if that may not help the victims at all. I am also going to avoid the issue for the moment about whether you still have a professional responsibility to help the client find another lawyer which some would argue is a kind of complicity. Saying no to a client is only one step in what it might mean for you to have moral integrity, but it is an essential step.
While you can express your moral views to clients and other lawyers, you should not impose your views on other free moral agents, but equally you should not be an amoral, instrumental hired gun yourself for whatever clients you can get. You are also an independent moral agent, and you should preserve and exercise that independence, partly because you cannot in the end separate your personal identity from the lawyering role. To a significant degree we become as persons what we do as professionals, since we spend so much time in that role, and if you have attempted to separate your moral life into two compartments, the personal and the professional, over time you become a disintegrated soul. Integrity means a fundamental integration of personal identity and professional practice rather than a separation which leads to personal disintegration. Furthermore, in the end I believe that not only will you be a better person for exercising conscientious refusal in the practice of law, but you will also be of greater help to the clients you do serve and to society, precisely because you are a better person, more able to bring moral wisdom to bear in professional judgement which is every bit as important to clients as legal skill. I believe that professional independence and integrity is not found in taking every and any case regardless of your views as to moral value, but rather from refusing to take cases that conflict with your own deepest moral sensibilities.
2. Other Lawyers Are Not Available and the Client is Entitled to Service.
A second objection to the conscientious refusal to advance legal immorality relates not to the argument that some other lawyer will do it anyway, but to the reverse argument that no other lawyers will do it or are reasonably available to the client, and therefore you must do it yourself in terms of some obligation to make legal services available, or due to an obligation to take unpopular causes, or whatever. Now the issue is not that the client will get it done anyway so you might as well do it, but rather that the client is entitled to do it, and if no other lawyer can provide access to this entitlement, than it is your professional obligation to do so. This objection is a strong one, but actually is used to justify far more than comes within its proper scope. Lawyers tend to say that because we arguably may sometimes have a professional obligation to advance cases or causes that we personally think are unjust, we might as well do so in every case.
First of all, we should at least clarify what the scope of any purported professional duty to make legal counsel available should be. As a general rule we have the privilege as lawyers of exercising conscientious refusal in the practice of law. Such an approach may run counter to the conventional approach of most lawyers and the ideology of the legal profession, but we may generally adopt it free from fear of professional discipline so long as our refusal or withdrawal does not unreasonably prejudice the client. Particularly in regard to withdrawal there are obviously principles of professional ethics that are needed to protect clients who are dumped for impermissible reasons or prejudiced by time or manner factors. But the idea that we must take certain cases only arises in exceptional circumstances of alternative lawyer scarcity and is not the general rule.
In England and in Australia, the situation for Barristers is different in the sense that there is a "cab-rank" professional rule that requires Barristers to take every case referred to them by solicitors, with only monetary, time, and competence factors of refusal allowed, and not any factor of the Barrister's personal views of the justice of the cause. If you are quite satisfied that the techniques of advocacy in the adversary system are morally acceptable, and that there are adequate limits to advocacy that prevent truth distortion, and power imbalances, and that the system works well to achieve the just resolution of disputes, you might actually like the English "cab rank" idea in that the lawyer is not identified in the public mind with the client, but rather is seen as an officer of the court who provides access to the system of justice to whoever is in need of access. However, if you find aspects of the adversary system morally troublesome, or if you affirm that the system is not in fact equally available to all because justice is largely bought and sold in a private market, or you think moral autonomy of lawyers to refuse cases should not be removed in any case, than you might be happy, as I am, that we do not have such a rule.
So we have no general professional obligation to personally deliver services to clients that we believe are causing unjustified harm to others, but the legal profession does collectively have an obligation to make legal services available, and that means, at least in a context where alternative lawyers are not available, that we cannot always be free to exercise the conscientious objection I am arguing for. The argument might be that the collective responsibility of the profession does include the provision of legal services to pursue even unjust ends simply because the ends are legal, and if no other lawyers are available than you should make yourself available.
One might attack this exceptional duty that we have in the context of alternative lawyer scarcity by simply denying that the profession has any collective duty to use a criterion of strict legality in delivering service at all, instead of a criteria of morality and justice. Such a move, however, would require extensive elaboration and defence in the context of a morally pluralistic and democratic society. It can be argued that we do live in a society where individual autonomy, even to do wrong, is often valued as being greater than legal constraint in the name of collective order and rightness. So, even if we accept for the sake of argument, a simplistic notion of the positivistic rule of law, I still think that even this exceptional duty to take cases is narrower than it is commonly thought to be. We might still consider the distinction between what the law demands of people or positively grants to people as opposed to what the law simply does not regulate.
If the law says that you must do something and you need a lawyer to get it done, or the law says that you have a positive right to something and you need a lawyer to exercise that right, than indeed in these contexts we may arguably sometimes have a professional duty to take cases that we personally believe cause immoral harm to others, because no other non-objecting lawyers are reasonably available. Even in such cases you might refuse your services if you felt that the cause was so fundamentally unjust that you would be compromising your moral integrity in taking the case. This would now be professional civil disobedience, however, and not simply permissive conscientious objection, and you would have to consider whether to resign as a lawyer or at least affirm the right of the law society to discipline you.
But it is often wrong to say that someone has a legal right to do something and therefore to have a lawyer help him or her to do it, just because there is no apparent law that prevents him or her from doing it. For one thing, the law is not a list of separate rules. Rather the law as a whole contains a normative theory of justice, of morality, that may well proclaim that some action for which a rule does not seem to exist is nevertheless against the law.
Even if you do not resort to the spirit of the law argument, you might more properly say that someone has a legal privilege in this context but not a legal right, which implies that someone else must have a duty to vindicate that right. Just because something is not illegal does not mean that the legal profession must therefore provide a service to the person to achieve the goal however immoral it is. If every lawyer in the country conscientiously refuses to act, then it is commonly argued that the legal profession has in effect legislated and imposed its moral views on the client. I think this is not so. If every lawyer has refused to act than the client has simply not been able to morally convert someone to come to his or her aid, in a context where no legal duty exists on anyone to do so. Clients do not have a legal right to force lawyers against their own moral judgments to come to their aid simply because what they want to do is not apparently illegal. There must be rather some actual positive legal decision like the positive right to counsel in criminal cases for example, that gives rise to a collective obligation on our part to provide service. I would also apply this reasoning to the purported duty to refer the client to another lawyer if you conscientiously refuse to serve. My argument would be that in some cases you do not even have to help the client get another lawyer, but in other cases you do have such a duty when you conscientiously refuse to serve.
The real objection, however, to this view that some client's goals need not be serviced at all by any lawyer because the goals are really a matter of morality and not strictly access to law, turns not on these fine points about what we really mean by a legal right, but rather on ideological considerations. Indeed, the arguments just made might be seen as another form of purely legalistic reasoning. The real issue is a moral one. Should we place individual autonomy to do wrong as a higher moral principle for making decisions to serve clients than we do the moral principle of not harming others? I do not believe that lawyers must accept the conventional ideology that individual autonomy to do wrong when no legal constraints exist is itself part of the legal foundations of society giving rise to legal obligations on lawyers to implement all client choices that are not illegal. This is not law but rather moral ideology, an ideology that we can reject in favour of a view that where law ends, the role of moral cooperation or non-cooperation is fully open to lawyers, as is it is open to others in society. My call to exercise conscientious refusal in the practice of law is obviously connected to my rejection of some aspects of the ideology of liberal individualism which I view as becoming dangerously excessive in our society.
But I have conceded for the moment that our personal conscientious objection to the delivery of legal services may be restricted to a degree by our membership in a profession that has a collective obligation to provide legal services in some limited circumstances, when the client is really legally entitled to have his or her choice implemented. This exceptional obligation should not, however, make us tear the "do no harm" sticker from our desk and adopt the ethics of legalism instead.
3. All Lawyers Could Not Be Conscientious Objectors
A third and closely related objection to my plea for you to conscientiously refuse to serve clients when such service harms others, is the claim of universalizability. Now the argument is not that someone else will do it anyway, or that no one else is available, but rather that since all lawyers could not coherently adopt this approach, I better not do so. Suppose that everyone in the profession ditched the ethics of legalism and conscientiously refused to take cases that while legal were thought by them to be unjust or to unjustifiably hurt others, or whatever? This is manifestly not going to happen, but suppose it did? What would happen to the rule of law and to the liberal idea of having only restraints on conduct that are linked to democratic or official law promulgation and enforcement? Can we consistently take the position of conscientious refusal only because others do not do so and therefore serve as the safety valve for us to live by our so-called moral integrity? Does our integrity depend on others not having the same integrity that we demand of ourselves?
At one level the way to meet this objection is to turn the tables and first look at whether the ethics of legalism are presently universalizable and coherent in a way more satisfactory than this alternative vision of lawyer conscientious refusal. When we do try to do this, we discover that the ethics of legalism are more a matter of conventional rhetoric than actual reality. As lawyers we loophole hunt and strain to avoid the spirit of the law to advance our client's interest supposedly within the law. Law is actually selectively avoided in this way as much as it is applied. Legal formalism is a kind of lawlessness in the end. In reality lawyers are remarkably instrumental about law even as they idolize the concept of the rule of law. In one case that I was involved in, the lawyer advised his client to break a contract because the cost of enforcing the contract on the other side outweighed the purely monetary damages that might be awarded. Compliance costs are weighed against breach costs. So much for the ethics of legalism! Furthermore, the ethics of legalism might be quite serviceable if in fact law was a process of empowerment and restraint equally applicable to all in society. But this is manifestly untrue. Law often arises not out of a social consensus about what justice requires, but rather law is made in the law office, in the courts, in administrative tribunals, and even in the legislatures by a process of power conflicts where often it is might that makes right. Legal services, despite legal aid, and the admirable efforts we make to increase equal access, are still to a significant degree in the hands of the powerful interests in our society. Furthermore, lawyers do not just apply pre-existing legal norms that are reasonably clear and determinative, but rather lawyers are creative. Law is significantly open rather than fixed. Lawyers help to make law all the time in favour of the interests they represent. Thus, to say that the ethics of legalism provide the proper moral principle for service to clients ignores the fact that lawyers are instrumental in manipulating and creating and avoiding the law in the first place on behalf of some in society and not on behalf of all.
In such a context, it is most crucial for you to ask yourself, "What kind of a lawyer do I want to be?" "What clients and causes do I want to spend my life serving?" To adopt the ethics of legalism in the present context is also to make a moral, political choice to serve some interests and not others, just as is my alternative vision of making that choice explicitly with reference to morality rather than pure legality. To think that law is separate from politics in the sense that the political issues are over once the law is in place and you are only now dealing with law and not politics is simply untrue. The practice of law is supremely a political event most of the time. Thus, to concede that if all lawyers acted as the gatekeepers of justice in such a way that some people could not harm others in the name of law, than so much the better for our legal system than the present situation of unequal access to law, of law manipulated by power, of legalism as rhetoric and not reality.
But at another level you might still object that even if in reality the ethics of legalism are a morally flawed form of delivery of legal services, ideally we would still want to affirm the moral autonomy of clients to be constrained only by the official process of law and not by lawyers refusing to act, so you cannot universalize conscientious objection. Such an argument, as I have said, presupposes some theory of positivism and excessive individual autonomy, which I think cannot be morally sustainable. However, let me just add here that my claim for the moment does take for granted that we are in the context of moral pluralism. By universalizability I am not saying that one particular view of harm to others or of morality will be imposed by lawyers but only that lawyers in the context of moral pluralism should refuse cases on the basis of their own most deeply held moral convictions. Each lawyer should not fundamentally act for ends or by means that contradict his or her own deepest moral convictions. That is what I am willing for the moment to universalize, rather than some actual view of morality. I am not here trying to argue that my moral values can be demonstrated in some philosophically acceptable fashion to be true for all, but only that I do have deep commitments to certain values that should not be separated from my work as a lawyer but rather should find expression in my vocation. I have also conceded that even in a situation where all lawyers were willing to exercise conscientious objection, we could not do so in those situations where the law was not merely permissive but positively granted or demanded the client's goal, and no other non-objecting lawyers were reasonably available. I will grant that much to the rule of law.
4. Some Contexts of Lawyering Do Not Allow Conscientious Refusal
Now, a fourth objection might be that conscientious refusal of clients may be acceptable only in some legal service contexts and not others. Perhaps it is acceptable in non-litigation settings where no impartial judge is present to supervise and vindicate the interests of all the parties and where other interests are often not represented at all. Perhaps even in some civil litigation contexts the lawyer need not advance or defend unjust, but arguably legal, goals. But how about criminal litigation? You might argue that society has made a legal choice to grant all sorts of legal rights to those accused of crimes, including the right to counsel, the right to remain silent, the right to a presumption of innocence, and the right to a determination of the issue of guilt beyond a reasonable doubt in an adversarial trial. No matter how heinous the crime, it is very important that the state follow a carefully controlled process if we are to have a society that respects the dignity and freedom of all. In this context we often strive to help factually guilty people avoid accountability for their crimes if possible, but we say we are only doing our socially approved jobs on one side of the case, just as the prosecutor and judges and juries are doing theirs. It is for the court to ultimately decide the case and not for us to pre-empt that decision by exercising our moral judgement about who we will serve.
I respect this view. I am not arguing that you never can find a coherent moral justification for taking all cases in some settings by appeals to the higher social value of institutional role, but only that you must then really believe in the morality of the role. If you think the criminal trial process as we know it operates in a morally acceptable fashion and is necessary to preserve due process and human dignity in society, than you may well feel comfortable taking all cases and advancing them constrained only by the law and the norms of professional responsibility, and not by any case-by-case moral concerns about striving to help persons escape accountability and perhaps victimize others, or whatever. But if you do not feel this way, then I urge you to be as selective in your means and ends of advocacy as in any other area of legal practice. What you do in the adversary system is still something you do, and you can't just pass the moral buck to the system. The point is that you still choose or not to act in it, and if you act in it than you should be convinced that it can bear the moral weight you place on it.
I personally have moral difficulties with the role demands of the adversary system because I view some of the conventional role demands as unnecessarily hurtful to witnesses and others, as too much geared to tactics rather than truth, as too prone to procedural power games rather than appeals to substantive justice. As Jesus associated with the social rejects, the tax collectors, prostitutes, and the thief on the cross, so caring for and counselling and pleading for justice and reconciliation on behalf of the guilty is one of the greatest ministries of the lawyer. I have little difficulty with most of the substantive principles of criminal liability and defences which seem to me to be essential moral principles of responsibility. I can also concede the need for controlling state power by the vindication of certain rights that apply to the factually guilty as well as the innocent. But after that, there are still some aspects of advocacy that I find morally offensive. The issue then becomes whether I must reject all advocacy because it is a kind of systemic activity where everyone must perform the same way or whether I can still be selective about cases and tactics without violating client entitlements or expectations.
D. Points of Clarification and Caution
I have attempted to comment on four objections to the view that you should refuse to collaborate with what you believe is immorality even if it is legal, but there remain some points of clarification, and caution that should be noted.
First, I am certainly not saying that you must always agree with your clients before you can accept them. There may be client goals that you do not agree with personally but which you can still accept as not leading to unjustified harm to others. I affirm that the role of the lawyer, while open to conscientious refusal to serve, is still a role where the lawyer ultimately chooses to serve the client's interests and not his or her own interests. Indeed, we must have rules that protect vulnerable clients from lawyer self interests that compromise client service.
Furthermore, sometimes you obviously will face a conflict of harms where there are principles of law that you may feel are morally worthy of being upheld and vindicated even if you feel that a particular client's goal is harmful. We might cite the classic example of the Jewish lawyer, who believes in a very wide conception of free speech, and therefore defends a Nazi organization's right to hold a demonstration. The lawyer most certainly thinks the client's views and actions are morally repulsive and even thinks the demonstration is damaging to people, but nevertheless the lawyer thinks the overall good of free speech is greater than the harm of allowing the demonstration. Such a lawyer is not just adopting the ethics of legalism but is making a serious moral decision to defend the morality of a legal principle as he or she sees it. I am not saying that freedom within the law to do harm cannot ever be morally defended by the greater value of freedom, but only that this should not always be the uncritical presumption. For example, I have such a strong moral commitment to freedom of religion that I might defend some clients with ludicrous and arguably even harmful ideologies and practices. Choices that involve moral risk and ambiguity cannot be avoided in the practice of law.
By arguing for conscientious refusal to serve and moral responsibility for serving, I am acknowledging to a degree that the public should identify the lawyer with the client, but only to the limited extent of saying that the lawyer did morally choose to serve, but not necessarily because the lawyer agreed with the client. By saying that law and morality are not the same, and that sometimes what is legal is still immoral, I do not want to leave the impression that law is never moral. Quite the contrary! Sometimes the systemic morality of the substance of law or legal process does morally justify the acceptance of cases that viewed individually might be seen as causing harm but viewed as a matter of social principle and precedent might be seen as worthy of acceptance.
Secondly, there may well be prudential reasons for refusing cases. Sometimes it is said, even within the framework of legalism, that while you may properly serve clients whose goals you personally find morally repulsive, perhaps you should not do so because your personal views may in the end lead you to not serve the client as well as a lawyer without such moral revulsion would. The reverse is also argued. Sometimes personal agreement with the client and too close identification with the client is a reason not to serve. A lawyer who is not identified with a client is better able to serve the client, especially in unpopular cases. I do not deny any of this, but it is not the issue I am dealing with. I am arguing for conscientious refusal of clients, not because you cannot serve them well if you took the case, but rather simply because you should not morally collaborate in reaching results that you find morally offensive.
Thirdly, it might be useful to distinguish between total conscientious refusal to serve a client and qualified acceptance of a client. While you must make sure you do not use your professional status to dominate and manipulate the client into accepting your moral views, you are free to limit the scope of your representation of a client if the client consents to such a limitation. You may then accept the client, but you have qualified what you are prepared to do for him or her. You may for example set a limit to the methods of advocacy that you will employ by rejecting the use of some tactics that are not per se impermissible by conventional standards but which you think are immoral. Acceptance by the client of qualifications to your representation can only be legitimate if the client has knowledge of what he or she is possibly giving up by not going to a different lawyer.
Fourthly, one practical difficulty is that sometimes we may not really be able to assess the goal of the prospective client at the point of deciding whether to serve or not, but only later after the client has already become our client and has relied on us. Sometimes we may have to proceed rather than withdraw because to withdraw would be morally unfair to the client even if we felt that what the client was doing was harmful to others. We cannot completely avoid such moral dilemmas in the practice of law.
Fifthly, another danger is that in talking about the refusal to provide legal services we may leave the wrong impression. We should not just talk about encouraging lawyers to refuse to provide legal services on moral grounds, when the more significant problem is precisely the immoral lack of delivery of legal services to many who need and deserve legal services. We need to speak as much about our moral duty to deliver services as we do about any conscientious refusal to do so.
Sixthly, my argument for the moment is that you should practice conscientious refusal in the practice of law, not conscientious refusal to the practice of law. I respect those who take the view that you cannot be both a good person and a good lawyer and therefore you should conscientiously refuse to be a lawyer at all. But I disagree with that view. The practice of law is almost as wide in scope as life itself. We can help clients and society as lawyers without compromising our moral integrity. For example, if you totally reject the adversary system you can helpfully spend your life as a lawyer working as a mediator. There are lots of clients who need help with matters that do not unjustifiably hurt others. There are many areas of legal specialization, and many different contexts for lawyering. Finally, we must stop seeing roles in the legal system as having an inflexible, fixed necessity about them. To a significant degree we make the role what it is, rather than having the role imposed on us.
E. Moral Conversations, Conversions and Conscientious Objection
Finally, I want to deal with the most compelling argument of all that might be seen as being in opposition to conscientious objection but which I think might be seen rather as a position which contextualizes and modifies it rather than denies it. The perspective comes from Thomas Shaffer, in his book, On Being a Christian and a Lawyer (1981). If Shaffer was listening to this lecture, I imagine that he would be fully affirmative of my rejection of the ethics of legalism, but he would not agree with the call to conscientious objection, at least as I have presented it so far.
Shaffer might say that what I have said so far fits into what he calls the ethics of isolation. The client has one moral view, and the lawyer has a contrary and conflicting moral view. The lawyer refuses to serve the client. The client can go elsewhere. Lawyer and client each preserve their own separate moral integrity as it were. But this vision is perhaps as easy, as comfortable, as escapist, as isolating as the ethics of legalism are. For Shaffer the model of the lawyer-client relationship is not legalism or moral isolation but rather interactive and interdependent moral conversation and even conversion.
We have come to realize how much lawyers dominate and manipulate their clients even while they affirm a hired gun view of lawyering. Often lawyers do morally troublesome things and say that they are just doing what the client wants even though they have never really found out what the client wants. Lawyers often attribute ends to the client and means to reach that end without real moral dialogue with the client. But in reaction to this, we hear a great deal about client centred practice, which at bottom often takes the concept of the moral autonomy of the client to the length that we should never really exercise any moral influence that might lead to a change in the client's view of what she or he wants or needs. Acceptance of the client is everything and moral influence on the client is completely excluded. To be a prophet to a client, or to presume to make a moral suggestion, would be an impermissible violation of client autonomy, even if the influence was not manipulative or paternalistic, but was honest, open, and respectful.
Instead of understanding the moral autonomy of clients as consisting of having the ultimate right to decide what to do, we have now turned moral autonomy into a kind of burden, a kind of individualized freedom that is really abandonment and isolation. The client must decide alone without any help from me as his or her professional advisor. I might be dominant and manipulative so I will not engage in moral reasoning at all but just lay out the options. That is probably the message in every clinical law course taught in law school. We treat morality as something fixed and given that is brought into the lawyer-client relationship where moral positions are simply asserted and accepted or rejected, rather than seeing the relationship itself as a place of mutual moral conversation, influence, and interdependence.
If I read Shaffer correctly, I think he is very sensitive to the problem of paternalism and domination in interviewing and counselling, but I think he would say to us, "Stop believing that you should not try to influence your client and that your client should not influence you." We are not really morally autonomous, but rather we live in relationships, and in community where we challenge, confront, converse and hold each other accountable. If we are going to counsel others to take morality, and not just law, into account, then we better be humble enough to have them counsel us in turn. It is our clients who can often teach us what it means to be better persons and not the other way round.
I think Shaffer would at least call us not to focus so quickly on the issue of whether we will conscientiously object to serve or not, which has the danger of moral isolation and even moral arrogance, but rather focus on the view of the lawyer-client relationship as having a goal that is fully open to moral conversations and conversions. Such a view accepts the moral risk that the client might still in the end pursue a course of conduct that we will consider morally wrong, and we will then have to decide whether to exercise conscientious objection or perhaps whether instead we will still serve the client because not to do so would be inconsistent with the care and trust that makes the moral conversation real in the first place. For Shaffer our moral failure is not so much our association with clients bent on immorality, but rather our failure to bear witness.
Shaffer, I believe, in the end would also seek to avoid lawyer collaboration with immoral ends or means, even if they were legal. He would not disagree with my position on that, but he would see conscientious objection like civil disobedience as a last resort. Shaffer's approach adds the necessary dimension of both realism and radicalism. Realism in the view that we cannot always maintain "clean hands" by escaping out of a situation rather than wrestling with it, and radicalism in actually suggesting that we can try to prevent legal immorality rather than just avoiding personal complicity in it.
III. CONSCIENTIOUS OBJECTION TO SOME REQUESTS OF LEGAL SUPERIORS
In saying that you should exercise conscientious objection and not use your legal skills to advance unjust causes, you will immediately think of yourself, however, not in practice on your own, but as an articling student, and then after that, as a salaried associate in a law firm, not really choosing work at all, but having work given to you by legal superiors. My argument therefore is that you should conscientiously object to legal superiors who may want you to work on files that require you to use your legal skills in ways that you think unjustifiably harm others. The principle is the same but now the stakes are higher. Not only do you have your job to think about in terms of harm to others like your spouse and children who may depend on you and might suffer if you were fired for your conscientious refusal, but you also have the problem of associational identification. Just as confidences reposited with a lawyer become vicariously confidences of all the lawyers in a firm, so we might argue that we individually may have at least some moral responsibility for what our firm does as a firm and not just what we do individually within the firm.
Perhaps, we simply cannot take this vicarious responsibility too far if we are affirming a degree of moral pluralism and autonomy in the first place. There are some small firms where all the lawyers share a particular religious affirmation, or whatever, and basically agree as to where to draw the line in terms of ends pursued or means used to reach the ends. But such situations are rare, and some would argue not ideal. If we want to be able to be free in a firm to refuse files on moral grounds, irrespective of our status on a hierarchy, then we in turn must allow others in the firm to accept files that they approve of on moral grounds even when we disapprove. But again, following Shaffer, I personally think we can go too far with this individual moral autonomy argument. This buys right into the same sort of ideology that in the end supports the ethics of legalism. The law firm should be a moral community, where people engage in moral dialogue and even hold each other accountable. I would want to be part of a law firm that has a measure of space for individual freedom, but I would also want the firm to be more than a bunch of individual lawyers sharing office space. I take seriously the idea of the "spirit of an organization." Law firms have collective spirits that transcend any one person in the firm.
So, I am suggesting that you should exercise conscientious objection to legal superiors who seek your assistance to do what you believe is immoral, even if legal. Many of them will respect your decision, but many will not and will view you with disdain for not accepting the ethics of legalism and will see to it that you do not get a job in the firm beyond your current appointment. But you cannot pass the moral buck to the lawyer who is your superior, who you might argue really has the conduct of the file, anymore than you can pass the buck to the client or the law or the legal system. What you do on the file is still something you do and are morally responsible for. Furthermore, at some stage the associational identification, if communities are to be meaningful at all, does matter to you. Not only do you need to know what moral freedom will be granted to you as a lawyer in a firm, you also want to fundamentally consider what kind of lawyers you want to be associated with.
IV. CONSCIENTIOUS OBJECTION TO SOME LAWYER STYLES OF LIFE
As if this isn't enough, I would argue that you might consider exercising conscientious objection to some lawyer styles of life. Law is practiced in a way that often requires you to adopt priorities that you might view as harmful to yourself and those who you are in relationship with, even if everything you do as a lawyer is most helpful to clients and to society. Even with specialization, we must all face the fact that law is ever changing, that practice seems to be getting more demanding and interdependent, and that to maintain professional competence requires hard work, long hours and the inevitable sacrifice of some other interests that we may have. There will be those who can quite seriously devote their whole lives almost exclusively to the practice of law and make the profession itself their primary community and I do not necessarily find fault with this. But I think there is something systemically wrong with the practice of law if we must all adopt a lifestyle that relegates life outside of the practice of law into the dustbin of marginal time, if we are to be competent or if we are to advance in the profession.
I believe that it is commonplace in the profession of law to seriously neglect and harm ourselves and those we are in relationships with, in the name of achieving professional success. There are many causes for broken relationships in our community, but who can deny that much of the personal and family wreckage prevalent among professionals is attributable to our ideology that we must place professional advancement and career fulfilment at a higher priority than we do our spouse, our children, our friends, our church, or whatever? Why is it that many professions that are so geared to helping people, often translate into lifestyles that are so harmful to the professionals themselves and their families? In most occupations the general trend has been to humanize labour by reducing the hours of work and spreading the work to more people, by providing safer working conditions, and by providing greater enjoyment of work in terms of variety and so forth. But in the traditional professions, like medicine, law, the ministry, and others, the demands of the professions seem to be increasing, not decreasing.
Indeed, we sometimes glory in this concept that we have special, extraordinary responsibilities and our treadmill existence as professionals shows our toughness and self sacrifice. You see this sort of thing when young Doctors are doing their residencies in hospitals and have to work for 48 hours without sleep and then the profession says this is actually necessary and good instead of demonically stupid.
My argument is that much of this is actually self inflicted. Law practice as an instrumental way to gain a large share of financial security or status often backfires. You spend such incredibly long hours in the practice to gain the inflated financial rewards you seek, that you have no time to enjoy the financial rewards anyway. You might say that at least your family has the benefit of your money even if they don't see much of you. But the drive to achieve the trappings of success by having ever more opulent offices and locations and billings is a trap you might conscientiously refuse in the name of preserving your life. Of course, for many lawyers, law practice is not an instrument to financial success, or status, or whatever, but rather law practice is inherently desirable as a vocation for its own sake. We absorb ourselves in the law for longer and longer hours because we love it. But you might seriously consider whether you are morally free to be so absorbed, if you have committed yourself to be in relationships with others.
V. CONCLUSION
You may find that all this talk about avoidance of harm to others is too negative or too consequentialist or too naive as a moral criterion for conscientious refusal. You may be right, but then at least put a sticker on your desk that says, "Exercise moral reasoning!" Or "Think morality and not just legality!"
Jesus said that the teacher of law was like a householder who brought out of his or her storeroom new treasures as well as old. Perhaps some of you will think that what I have said is a treasure? It is rough and uncut, and you must take it and refine it in the heat that will come in the crucible of your own life. Perhaps some of you will think that what I have said is more akin to dung than treasure? But if your arguments for rejecting my position are grounded in your own coherent commitments to a vision of the right and good in lawyering, then I respect you, while I may disagree. But if your disagreement stems from some notion that to exercise conscientious objection makes it harder for you to get your partnership, or your Mercedes, than I ask you to reconsider for the sake of your soul.
