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The attorney as moral agent: a critique of Cohen.

In a frequently anthologized article, Elliot D. Cohen, (1) a philosopher, has argued that an attorney who conforms to the conventional "pure legal advocate" model of lawyering

will thereby be placed in a professional climate conducive to her being unjust instead of just; untruthful instead of truthful; unmotivated by a moral outlook instead of morally courageous; illiberal instead of liberal; callous instead of benevolent; morally irresponsible instead of morally autonomous. In short, she will fall well below the minimum standards of a morally good person. (2)

The last sentence is significant. Instead of stating merely that there is a tendency for lawyers to engage in immoral behavior, Cohen claims that an effective lawyer "will fall well below the minimum standards of a morally good person." His article attempts to make good that claim. (3)

Cohen translates his claim into a general condemnation of the adversarial system, maintaining not only that "the lawyer so conceived will inevitably fall short of our marks of a morally good person," but also that, "as a result of such shortcomings, there is substantial disutility in the pure legal advocate concept of lawyering." (4)

To address this situation, Cohen argues that the relevant legal ethics standards should be revised to increase the moral autonomy of lawyers. This, he believes, is likely to increase the probability that lawyers will behave in morally good ways. He proposes, for example, that the following language be adopted as a legal ethics standard for the bar:

In his representation of a client, a lawyer may refuse to aid or participate in conduct that he sincerely believes, after careful reflection on the relevant facts, to be unjust or otherwise morally wrong notwithstanding his obligation to seek the lawful objectives of his client. (5)

As well, he proposes the following revision of an existing legal ethics standard:

In the exercise of his professional judgment on those issues which are for his determination in the handling of a legal matter, a lawyer should typically act in a manner consistent with the best interests of his client. However, in those cases where he sincerely believes, after careful reflection on the relevant facts, that an action in the best interest of his client is unjust or otherwise immoral, he should inform his client of the same and forego such action. (6)

Our purpose in this article is to rebut most of Cohen's arguments and conclusions and to argue that, if implemented, Cohen's recommendations would have socially undesirable consequences. Most specifically and importantly, we argue that it is possible for a zealously performing lawyer to be effective and morally good at the same time. Because we disagree with Cohen's conclusion concerning the utility of our adversarial system of justice and because his recommended changes would undesirably reduce the adversarial character of the justice system, our arguments are also intended to provide a defense of the adversarial system of justice. (7)

Cohen's article was written shortly after the adoption in 1983 of the ABA Model Rules of Professional Conduct, (8) but subsequently amended in 1987, 1989, 1990, 1991, 1992, 1993, 1994, 1995, and 2000. Some of these amendments have changed attorney responsibilities and appear to address concerns identified by Cohen, and we will therefore occasionally point out those that are relevant. Although changes in bar ethics standards do not guarantee compliance, the standards we mention can provide the basis for bar discipline, including disbarment, of lawyers. (9)

The Restricted Scope of Cohen's Argument

Cohen focuses primarily on criminal-defense lawyers and civil-defense lawyers who prevent the collection of just debts. His arguments have substantially less plausibility when applied to prosecutors, civil plaintiffs' lawyers, tax and estate lawyers, non-defense military lawyers, plaintiffs' environmental lawyers, patent and copyright lawyers, corporate securities lawyers, bank house counsel, government agency legal counsel, and possibly lawyers in other legal specialties. He might conclude that some of these lawyers do not function according to the "pure legal advocate" concept. Rather than focusing on this possible flaw of his analysis, however, we consider whether his arguments are sound concerning criminal-defense and civil-defense lawyers.

Characteristics of a Morally Good Person: Cohen's List

Cohen argues that a morally good person is just, truthful, morally courageous, liberal in the sense of having morally respectable monetary habits, benevolent, trustworthy, and morally autonomous and that effective lawyers routinely fail to exhibit those characteristics. (10) We rebut this claim item by item.

1. Justice. As Cohen acknowledges, a lawyer has a special relationship with his client and can, therefore, without denying justice to non-clients, accord clients special favorable treatment. (11) Even so, says Cohen, "we may be said to treat others unjustly when we intrude upon their legal or moral rights or when we treat them in ways in which they do not deserve to be treated." (12)

Lawyers, however, must be concerned with legal rights, not moral rights, whatever the latter may be. Judgments about a person's "moral rights" are highly subjective and varied, and therefore a lawyer's primary, if not exclusive, function in regard to justice is to ensure that his client's treatment by the adversary and justice system conforms with relevant legal standards, which presumably would entail just treatment. Prosecutors have an affirmative duty to seek justice (13) and, accordingly, must seek conviction only of persons they believe to be guilty. Contrary to a recommendation by Carrie Menkel-Meadow, (14) defense lawyers have no corresponding duty to seek justice, should doing so tend to affect their clients adversely. (15) This is clearly implied by the language of the Model Rules of Professional Conduct: "The duty of the lawyer to his client and his duty to the legal system are the same: To represent his client zealously within the boundaries of the law." (16)

Cohen states that a lawyer acts unjustly if he "inflicts injury upon an innocent party." (17) An example of injuring an innocent party might be the embarrassment of an "innocent" person during cross-examination. This is a situation in which, when our adversarial system operates as intended, an ethical and moral lawyer may act in a way that appears to be ethically and morally indefensible. For the adversarial system to operate as intended, the credibility of both sides' witnesses must be tested. Fortunately, rape shield laws and evidence rules relating to relevance and materiality should and probably do limit the embarrassment of witnesses because of circumstances which are not relevant or material to the matter under litigation. (18)

On several occasions Cohen characterizes as unjust or immoral lawyers' use of statutes of limitation to prevent collection of a debt. (19) But legislatures have passed statutes of limitations for reasons they consider to be sufficient, and a lawyer would be acting unethically if he knowingly or negligently failed to assert a statute of limitation on behalf of a client. (20) Cohen does not attack directly the morality of legislators who enacted statutes of limitation. Instead he goes after an easy target, the lawyers. We think it appropriate that the bar recognizes the need for zealous representation concerning rights that have been guaranteed to all of us by our elected representatives.

The Revised Rules of Professional Conduct of the North Carolina State Bar, (21) which are based on the ABA Model Rules of Professional Conduct, (22) have moved in the direction of giving lawyers discretion to avoid harming ad verse parties. A comment to Rule 1.3, Diligence, (23) provides that "a lawyer is not bound to press for every advantage that might be realized for a client. A lawyer has professional discretion in determining the means by which a matter should be pursued."

The Revised Rules of Professional Conduct of the North Carolina State Bar, Rule 3.4, Fairness to Opposing Party and Counsel, (24) prohibits unlawfully obstructing another party's access to evidence, falsifying evidence or counseling or assisting a witness to testify falsely, knowingly disobeying a court rule, except when testing the rule's validity, making a frivolous discovery request, failing to comply with a discovery request, and alluding at trial to irrelevant or inadmissible evidence. The existence of this rule constitutes direct evidence of the legal community's concern with the professional morality of attorneys. We hope that, if a lawyer makes a practice of violating this rule and thereby unnecessarily harms adverse parties, he will face a significant risk of negative sanctioning by the bar.

2. Truthfulness. Cohen is simply wrong in asserting that lawyers have an "obligation of being untruthful where doing so can legally contribute toward winning the case." (25) ABA Model Rule 3.3, Candor Towards a Tribunal, states:

(a) A lawyer shall not knowingly:

(1) make a false statement of material fact or law to a tribunal; (2) fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or

(4) offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

(b) The duties stated in paragraph (a) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.

(c) A lawyer may refuse to offer evidence that the lawyer reasonably believes to be false.

(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse. (26)

It is well established that a lawyer can ethically put the prosecution to the test of proving its case, even if the client/criminal defendant committed the charged crime. In this situation, the criminal defense lawyer ordinarily argues that the state has not proven its case beyond a reasonable doubt. In a significant percentage of cases, we believe that this is not an untruthful claim. Given that proof-beyond-a-reasonable-doubt is an exceptionally subjective and high standard, one cannot argue at all persuasively that criminal defense lawyers are ordinarily untruthful and immoral when they argue in a particular case that the prosecution has not met the standard.

Should a criminal defendant initially tell his lawyer that he committed the charged crime and later change his story, the lawyer often cannot know which story is true. Even if the defendant thought he committed the crime, he may not have. If a lawyer concludes that the second story given in court by the defendant would constitute perjury, he wrongly assumes the role of fact finder. Our adversarial system makes the jury or judge the fact finder. (27)

The current ABA standard concerning client perjury requires the attorney to advise the client against it, to encourage him to testify truthfully, and then either to prevent perjury, or if it occurs, disclose it to the tribunal. (28) This is the rule in federal court and applies in over 36 state court jurisdictions. The U.S. Supreme Court has also addressed this issue, holding that even though a defendant has a right to testify, (29) he does not have a right to testify falsely. (30) Legal clients are not entitled to insist that their lawyers assert positions having no possible bases in fact or law. Clients are clearly not entitled to an unethically or immorally conducted defense, and nothing in the current ABA Model Rules allows an attorney to utilize an unethical defense, an immoral defense, or a defense based upon falsehoods.

3. Moral courage. Lawyers must occasionally show moral courage in representing an unpopular client or in taking an unpopular position concerning fact or law. ACLU lawyers show moral courage when they represent Ku Klux Klan members wishing to hold a KKK rally in public. Also, lawyers must sometimes show moral courage by refusing to take certain cases or by withdrawing from cases when ethically required to do so. A prosecutor shows moral courage when he prosecutes a popular, politically influential client.

Our country's history describes attorneys who fought for the betterment of society by asserting unpopular but necessary rights. When they confronted the morally reprehensible institutions of segregation, the heroes of the civil rights movement saw their clear moral and ethical duties as attorneys and as citizens.

4. Liberality. Cohen appears to equate "liberality" with "having morally respectable monetary habits." (31) Our adversarial system not only entitles the most despicable individual or corporate defendant to a competent, vigorous legal defense, it also entitles the lawyer to be paid for his services. It is no different for physicians.

The Model Rules have moved markedly toward requiring greater provision of pro bono legal services. (32) Providing such services constitutes morally respectable monetary behavior because the lawyer could otherwise use the time to earn at his ordinary billing rate. The provision of free services to needy clients can increase the system's achievement of justice.

5. Benevolence. Cohen states that benevolence is exhibited when a lawyer "is disposed to do good for others when she is reasonably situated and to do no harm." (33) In our extensive work as lawyers we believe that we have been doing good and not harm. Out of personal experience, therefore, we reject Cohen's point concerning benevolence.

Cohen writes, however: "[N]otwithstanding the benefits the lawyer may confer upon his clients, we should not want to call such a person benevolent." (34) This raises a significant issue. According to a popular view of morality, a lawyer can hardly be regarded as doing good when he obtains acquittal or the dismissal of charges against a despicable, very dangerous defendant whom he knows to have committed the crime; when he prevents the collection of a just debt by interposing what may be viewed as an inequitable defense; when, during cross examination, he traumatizes and humiliates an opposing witness whom he thinks may be testifying truthfully; or when he gains bankruptcy for a client, preventing possible collection of debts. However, here we concur with the "rule utilitarian" position, described but not endorsed by Cohen, that "lawyering so conceived can be said to be a morally justified function, notwithstanding that, on that view, a lawyer may be required to engage in conduct which by common standards is morally objectionable." (35)

Rule utilitarianism is consistent with the view that "it is better for ten guilty persons to go free than for one innocent person to be convicted." (36) The shapers of English common law and the framers of our Constitution concluded, we assume, that the conviction of innocent persons should be avoided at even great cost because such convictions can be destructive of popular support for government and the courts.

As argued more powerfully by Freedman, (37) our adversarial system is intended to and does protect crucial constitutional and cultural values, such as due process of law, equal protection of the laws, privacy, the rights clustered together as civil liberties, the rule of law, and prevention of cruel and unusual punishments. Lawyers who lawfully and responsibly serve in the adversarial system of justice therefore display morality and benevolence of behavior of a high order.

Conflict/critical social theory (38) argues that society can best be understood in terms of class conflict in which the powerful attempt to gain control of and use the means of production to oppress and exploit the powerless, especially members of minority groups. According to that theory, criminal prosecution can be used to oppress and exploit; powerful corporations can oppress and exploit. Although we think conflict/critical theory has less validity than its proponents claim, slavery and apartheid clearly constitute historical support, and current support can be found. Placing restraints on criminal defense lawyers beyond those given by ethical rules, their role as officers of the court, and criminal law would reduce the ability of lawyers to prevent the oppression and exploitation of the powerless by the powerful.

It would also be undesirable to tip the balance in civil justice against the indigent plaintiff. Representation by a highly motivated lawyer under a contingency fee is often the only possible avenue for the poor to gain redress for wrongs. (39)

For oppression and exploitation of the powerless by the powerful to be avoided or limited and for important cultural values to be vindicated and protected, some lawyers act appropriately in ways that are not, according to popular, conventional conceptions of morality, clearly moral. Lawyers are not the only social actors put in that position. Those who function as executioners do not act in conventionally moral ways. Nevertheless, they lawfully carry out a function that policy makers have determined to serve the common good. Police officers also invade people's privacy in ways that do not always appear to be conventionally moral, but their actions are intended to serve the common good.

Cohen describes lawyers on retainer who attempt to protect their polluting corporate clients. (40) We believe that corporate lawyers are more likely to work hard to avoid clients' creation of dangerous conditions and products. If they can, they make their own jobs significantly easier. In the early 1980s, Johnson & Johnson, Inc. faced a difficult moral dilemma. Individuals in the Midwest were tampering with bottles of Tylenol, placing poison in the pills. Several people died. Johnson & Johnson had to decide how to deal with this situation. They chose, partially on the advice of corporate counsel, to recall products, change their packaging procedures, and not focus on the individuals who were criminally tampering with the product. Their swift and moral actions saved lives, and enhanced the reputation of the company. (41)

Cohen describes a "high-priced criminal lawyer who specializes in defending mass murderers." (42) In our professional lives in the legal and justice field, we have never heard of a lawyer with that specialty. We believe that most of the lawyers who represent mass murder defendants do so, sometimes with moral courage, at personal loss, both monetarily and in their professional standing, especially with the public.

6. Trustworthiness. Cohen acknowledges, in effect, that "the pure legal advocate concept reinforces trustworthiness, which in itself is a morally good trait." (43) Implementation of the new and revised lawyer ethics standards that he suggests would significantly reduce the trustworthiness of lawyers from the point of view of their clients in the sense that lawyers would be allowed, even required, to act contrary to their clients' interests in a higher percentage of situations.

7. Moral autonomy. The lawyer's roles of fiduciary and agent in relation to his client limit his autonomy. A fiduciary is "a person having a legal duty, created by his undertaking to act primarily for the benefit of another in matters connected with his undertaking." (44) A lawyer has a fiduciary relationship with his client. (45) An agent is "one who, by mutual consent, acts for the benefit of another; one authorized by a party to act in that party's behalf." (46) A lawyer often serves as the agent of his client. (47)

But Cohen appears not to understand that, as an officer of the court, the defense lawyer also owes as high an obligation to the court as to his client. That being the case, the lawyer's obligation to comply with law, (48) with court rules, and with legal ethical standards will allow and even require a certain type of moral autonomy on his part. This was intended by the framers of our constitutions, laws, court rules, and ethical standards. As noted above, the ABA Model Rules appear to be moving in the direction of giving the lawyer more discretion in determining the "means by which a matter should be pursued." (49)

Lawrence Kohlberg, (50) a developmental psychologist, has devised a theory of moral development that is relevant to Cohen's arguments as a whole. According to Kohlberg, the highest level of moral development--the "postconventional"--is one at which "the morality of actions is based on abstract principles that may even conflict with accepted standards." (51) Lawyers who are deeply committed to the protection of positive constitutional values, such as due process, equal protection, and the prevention of cruel and unusual punishments, and who express that commitment through advocacy clearly exhibit this postconventional level of moral development. The same can be said of civil area lawyers, such as plaintiffs' environmental and personal injury attorneys, who are deeply personally committed, respectively, to preservation of the environment or to assuring redress for injury to powerless persons. On Kohlberg's widely held account, then, lawyer advocates can exhibit an unusually high level of moral development and functioning. Thus, each of Cohen's claims in support of his conclusion that "good" lawyers fail to exhibit characteristics of a morally good person is substantially flawed. He offers no cogent reasons for doubting that an effective lawyer can comply with bar ethics standards and behave in morally acceptable ways. His arguments fail to refute our contention that a lawyer who complies with lawyer ethics standards and acts in morally good ways can also be effective. There is, therefore, no need for the types of significant changes in legal ethics standards that Cohen suggests.

Reframing the Issues

Cohen provided his somewhat arbitrary list of characteristics of a morally good person and then presented arguments that purported to establish that effective lawyers fail to exhibit those characteristics. We now offer an alternative framing of the issues.

1. What is required for competence as a criminal defense and civil plaintiff or defense lawyer? Remarkably, Cohen omitted extensive reference to what constitutes effective performance as a lawyer or to the skills, knowledge, and abilities required to work effectively as a lawyer. We believe that, to work effectively as a trial and settlement lawyer, a person must have (i) strong knowledge of relevant law and procedure, (ii) the ability to use that knowledge effectively in split-second decision making in court, (iii) the ability to speak persuasively in public, (iv) sound judgment concerning the negotiation of case settlement, (v) the ability to understand and argue persuasively concerning highly complex situations and subjects, (vi) the ability to investigate complex past events effectively, (vii) trial advocacy skills, such as cross-examination, (viii) the ability to function under great stress for lengthy periods, and (ix) excellent writing skills, including excellent proof reading skills. Other important skills and abilities could no doubt be listed.

2. Do any of the above abilities, to be utilized effectively, require unethical or immoral conduct? No.

3. Do these two conclusions support a broad conclusion that an effective lawyer will inevitably behave immorally or even tend to behave immorally? No. (52)

Our reasoning thus arrives at a conclusion that directly contradicts the conclusion reached by Cohen. Of course, some of the knowledge, skills, and abilities to which we refer can be used in illegal, unethical, and/or immoral ways.

The Relevance of Plea Bargaining and Case Settlement

Research has often indicated that about 85 percent of criminal convictions are obtained through guilty pleas, most pursuant to plea bargaining. (53) A high percentage of civil cases also end in a settlement by the parties. We believe that the types of abilities described immediately above are the keys to successful lawyer performance in plea bargaining and case settlement. A lawyer with the competencies we list above does not need to be unjust, untruthful, callous, morally irresponsible, or lacking in moral courage to be effective in plea bargaining criminal cases or settling civil cases. Conversely, we doubt that unjust, untruthful, callous, morally irresponsible lawyers lacking in moral courage and also lacking the lawyer competencies we list above are often effective in plea bargaining or case settlement.

Adverse Consequences of Adopting a Moral Agent Concept

Cohen argues for the adoption of what he calls a "moral agent concept" (54) of lawyering, using what we consider an unfortunate phrase. (55) A lawyer who conforms to the "moral agent" concept would, according to Cohen, adhere to the following principles:

* Treat others as ends in themselves and not as mere means to winning cases. (Principle of Individual Justice)

* Treat clients and other professional relations who are relevantly similar in a similar fashion. (Principle of Distributive Justice)

* Do not deliberately engage in behavior apt to deceive the court as to the truth. (Principle of Truthfulness)

* Be willing, if necessary, to make reasonable personal sacrifices--of time, money, popularity, and so on--for what you justifiably believe to be a morally good cause. (Principle of Moral Courage)

* Do not give money to, or accept money from, clients for

* wrongful purposes or in wrongful amounts. (Principle of Liberality)

* Avoid harming others in the process of representing your client. (Principle of Nonmalevolence)

* Be loyal to your client and do not betray his confidences. (Principle of Trustworthiness)

* Make your own moral decisions to the best of your ability and act consistently upon them. (Principle of Moral Autonomy) (56)

Responding exhaustively to each of Cohen's points above is beyond the scope of this article. However, beyond what we have already observed above, we would add, in response to Cohen's argument that lawyers fail to exhibit the characteristics of a moral person, that lawyers have an ethical duty to treat persons as means to winning cases if doing so will increase the likelihood of winning; that the lawyer's relationship to his client is altogether different from his relationship to others; that, even if a lawyer's criminal-defendant client is known to be guilty or if a lawyer's civil case client is "in the wrong," the lawyer has no affirmative duty to ensure that that truth is reflected in the case outcome; that lawyers can ethically accept large fees not known to have been lawfully obtained by the client; that, if necessary in the process of representing his client and if not prohibited by law or bar ethics standards, a lawyer has a duty to harm persons other than his client; that in certain cases lawyers have a duty to betray their clients' confidences; and that it adds nothing of value to the process of improvement of lawyer ethics standards and ethics to call on them to routinely act as "moral entrepreneurs" in their professional lives.

We believe that attempts by lawyers to conform to the aspects of Cohen's moral agent concept which we have identified as objectionable and adoption of the bar ethics standards recommended by Cohen would be likely to have the following socially undesirable consequences.

1. Reduction of feasibility of legal scrutiny of lawyer performance. Whether a criminal lawyer has performed competently is often subjected to legal scrutiny, with the court making a ruling. Similarly, whether there has been attorney malpractice is determined in legal proceedings, and whether a lawyer has acted ethically in relation to a client is determined through legalistic interpretation of governing rules by bar discipline groups. Nearly all of the changes in bar ethics standards recommended by Cohen have as their crucial elements determination by lawyers of whether particular courses of action would be unjust or immoral. (57) Decisions regarding justice and morality are so subjective that we believe it would impossible for them to be made with the definitiveness required of court and bar discipline opinions. Law school education does not generally include development of facility in application of principles of morality and justice, which can, in addition to being highly subjective, be highly varied. Law school education is heavily concerned with developing the ability to apply legal principles in highly varied factual situations. We believe that bar ethics rules are evolving in ways that are increasing the ability of lawyers, judges, and bar ethics groups to apply those rules with confidence in varied factual situations. Interjecting a consideration of the justice and morality of courses of action would be a move in the wrong direction.

2. Loss of the client's trust in his lawyer. The current configuration of the lawyer's role allows clients to confide in and trust their lawyers. This positions an officer of the court at the center of the conduct of the defense of criminal and civil defendants. This lawyer is under an obligation to refuse to engage in unconstitutional, unlawful, (58) or unethical (under legal ethical standards) behavior in the conduct of that defense. We agree with Monroe Freedman (59) that breaching the confidentiality of communications between attorney and client would probably lead to the destruction of our adversarial system.

The result of implementing Cohen's standards would probably be that the defense in criminal and civil cases would eventually be conducted in socially less desirable ways than at present. For example, Internet web sites providing all of the worst tricks of civil and criminal self defense could develop. (They probably already exist.) With criminal defendants trusting defense lawyers less, para-professionals who would claim not to be acting as attorneys and who would operate free from the restraints of constitutions, statutes, court rules, and legal ethics probably would appear and obtain remuneration for "assisting" criminal and civil defendants.

Many indigent defendants represented by public defenders already distrust public defenders, (60) who, they know, are paid with tax dollars. Implementation of the moral agent concept would exacerbate this problem, especially as a result of cases in which defense counsel withheld action in support of their clients as a result of the new standards.

One likely consequence of this loss of client trust in their lawyers would be that criminal defendants and civil plaintiffs would be less likely to tell their lawyers the truth about their cases. When clients think that telling the truth can result in their lawyers foregoing acts favorable to their interests or acting contrary to their interests, clients are unlikely to tell their lawyers the truth. This would reduce the ability of lawyers to obtain truthful testimony from the witnesses they call. It is likely that lawyers would lose some of their ability to control their clients and induce them to behave lawfully.

3. Loss of trust in the justice system. With less trust in their lawyers after implementation of the moral agent concept, more defendants would lose trust in the system's ability to secure fair treatment or vindication and, as a result, would resort to violence and intimidation directed toward victims and witnesses.

4. Loss of public respect for lawyers. Cohen argues, we think correctly, that morally reprehensible conduct by lawyers reduces whatever respect the public has for lawyers. (61) He fails to consider the probability--we believe the certainty--that implementation of the moral agent concept would reduce respect for lawyers among the poor, powerless, and alienated within our society. In a society with a large underclass, the rich getting richer, and many of the poor getting poorer, this would be a highly undesirable development. When the government in the U.S.--state or federal--mobilizes its power and resources in prosecution of a defendant, fair play requires that the defense counsel function single-mindedly as an advocate for the defendant, within the constraints of legal ethics, the law, and directives to officers of the court. Implementation of the moral agent concept could reduce the perception of fair play within the criminal justice system. This would occur when defense counsel would, as a result of the new standards, withhold action in support of their clients or act adversely to their clients' interests.

This diminution of positive regard for individual lawyers could occur when a lawyer complied with Cohen's proposed ethics standard providing that "in those cases where he sincerely believes, after careful reflection on the relevant facts, that an action in the best interest of his client is unjust or otherwise immoral, he should inform his client of the same and forgo such action." (62) An attorney-client relationship would be severely tested when the lawyer would inform his client that he had decided to forgo action beneficial to the client because he considered the action unjust or immoral. If ethics standards are continually improved to avoid unjust and immoral lawyer actions, the lawyer will be able to say to the client, "I'm sorry, but I believe our lawyers' code of ethics prohibits my taking that action." The differences in the conversations could be quite significant. The lawyer is forgoing action not because he is morally superior but because he is required to.

5. Inequality of legal representation. We are confident that criminal defendants who can afford to pay for a defense lawyer would not tolerate the lawyer's functioning as an independent moral agent. The result would be that only indigent defendants (largely black and Hispanic) with appointed, publicly funded lawyers would be represented by lawyers who functioned as "moral agents." Indigent defendants would therefore receive a different quality of defense from that provided to paying defendants, who would ordinarily be white.

6. Jeopardizing the social contract. We believe that the urban riots of the late 1960s demonstrated that the Vietnam War jeopardized the viability of the social contract in the U.S., especially from the point of view of black citizens. We believe that the Los Angeles riots following the acquittal of the officers charged with state assaultive offenses against Rodney King sprang similarly from failure of the social contract from the point of view of black citizens. Implementation of the moral agent concept could jeopardize the social contract through the increased perception of black defendants and their supporters that they have been unfairly treated in the criminal justice system. About 50 percent of prison inmates in the U.S. are black. (63) African-Americans are imprisoned at about seven times the rate of whites. Especially because of this, the criminal justice system must avoid functioning in ways that increase the existing perception or reality that black defendants are treated unfairly.

7. Likelihood of conviction of innocent criminal defendants. In a speech to lawyers, Justice Sandra Day O'Connor recently stated that, since 1973, 90 death row inmates have been exonerated of the crimes for which they were convicted. Many of these exonerations resulted from use of DNA evidence. Reducing the defense lawyer's advocacy for the defendant might actually increase this problem. Conviction of innocent persons has sometimes occurred as a result of fabrication and planting of evidence of crime--and worse--by police officers in Los Angeles and elsewhere. Menkel-Meadow sounds a relevant warning:

Most telling to me is the fear that if we tame the adversarial dragon too much, even in civil cases, our expensive and tedious discovery process will not turn out the occasional jewel of achievement in locating that famous "smoking memo" that informs the rest of us of serious wrongdoing. (67)

8. Reduced effectiveness of prosecution and law enforcement. There is an old African saying: "The lion gives the antelope his speed." The vigorous defense of criminal defendants spurs prosecutors and police officers to work together effectively as they put together cases for prosecution. If Cohen's proposal is implemented, the effectiveness of criminal defense will be reduced. Instead of becoming more effective as a result, prosecutors and law enforcement would tend to become lazier and less effective. We favor competent, ethical, vigorous, and effective defense and prosecution.

9. Reduction of socially beneficial effects of lawyer advocacy in the civil area. The social benefits of effective lawyer advocacy in civil cases and matters will also suffer if Cohen's recommendations are implemented. (68) We believe that, without strong laws, courts, and effective counter advocacy by highly skilled and motivated lawyers, there would be vastly more and more serious industrial pollution, intentional harmful behavior, manufacture and sale of dangerous products, reckless and negligent harmful behavior, lack of assurance of real property ownership, breach of contract, monopolistic practices, denial of equal employment opportunity, denial of collective bargaining, sexual harassment, medical malpractice, libel and slander, child exploitation and abuse, and non-payment of child support and alimony.

10. Uncertainty concerning the effects of altering complex social institutions. Friedrich Hayek, a political philosopher, has argued that major social institutions--the products of centuries of evolution--are more complex than we assume. Changing them significantly is likely to have unanticipated consequences. (69) The Anglo-American adversarial system has evolved over many centuries. Reducing its adversarial nature, as Cohen and Menkel-Meadow suggest, would be likely to have unanticipated consequences.

Limiting Immoral Behavior by Criminal Defense Lawyers

When a criminal defense lawyer behaves in professionally unethical ways, he is vulnerable to sanctions from the courtroom work group, (70) especially the assistant district attorneys. Sanctions can include the withholding of favorable plea, sentence, and charge bargains. We favor the use of these negative sanctions to deter immoral and unethical behavior. The danger, of course, is that assistant district attorneys will use their power to punish energetic and competent defense lawyers who successfully defend clients using legitimate methods. However, we have enough confidence in the fairness of prosecutors and judges to doubt that this would happen frequently.

Conflicts of the Moral Agent Concept with Fiduciary and Principal-Agent Law

We noted earlier that a lawyer has both a fiduciary (71) and an agent (72) relationship with his client. In the Anglo-American legal tradition, fiduciary law and principal-agent law have evolved over many centuries. Implementation of Cohen's (and Menkel-Meadows') recommendation would violate the most important concepts of fiduciary and agency law, which is that fiduciaries and agents act in ways that advance the interests of their beneficiaries and principals. Would courts hold that lawyers were no longer the agents and fiduciaries of their clients? Hayek's observation concerning the complexity of major societal institutions rings true here. (73)

The Efficacy and Utility of the Adversarial System

We realize that as a retired Army Reserve lawyer/criminal justice scholar and an active duty Army lawyer, we can be accused of being Pollyannas when we argue that the United States adversarial system of justice has socially positive efficacy and utility. Nevertheless, history and an awareness of the world in which we live have taught us that having criminal justice that accords meaningful guarantees of fair and equal treatment and at the same time responds meaningfully to crime, criminals, and disorder is a remarkable and rarely accomplished feat, and that achieving certainty of property ownership and protection against a wide variety of non-criminal harms in an extremely complex and diverse society with a high level of freedom of action is extremely difficult and unlikely. We believe that these prized and rare outcomes are achieved to a significant extent in our society and that our adversarial system of justice, in which highly skilled and motivated advocates work to achieve effective criminal prosecution and defense and prevention of or redress for non-criminal harms, has been a crucial component in these achievements.

Conclusion

In rebutting Cohen's conclusion that an effective lawyer cannot be moral in his professional life, we believe that we have addressed all of his arguments and recommendations. We have pointed out that, in the adversarial system, the criminal defense and civil plaintiff's duty regarding justice is to assure that his client is justly treated; that, in a criminal case, the truth sought is not the truth concerning whether the defendant committed the crime but whether there has been proof beyond a reasonable doubt; that lawyers must at least occasionally display moral courage; that bar ethics standards have moved in the direction of requiring provision of more free legal services to needy clients, which constitutes morally respectable monetary behavior; that, by promoting due process, equal protection, civil liberties, and civil rights, lawyers achieve a high order of moral behavior and benevolence; that, by helping to prevent all manner of serious civil wrongs and harms, civil-area lawyers display a high order of moral behavior and benevolence; and that statutes, court rules, and bar ethics standards governing lawyer behavior create a type of moral autonomy for lawyers, even as they serve as lawyer, fiduciary, and agent of clients.

We have argued that Cohen's recommendations for change in bar ethics standards to increase lawyers' autonomy of action would probably have a wide variety of adverse consequences, including the impossibility of courts applying subjective and varied concepts of justice and morality in making legal rulings regarding the performance of lawyers, a loss of clients' trust in their lawyers, a loss of trust in the justice system, a loss of public respect for lawyers, inequality of legal representation, a breach of the social contract especially for minorities, an increased likelihood of convicting the innocent, a reduction in the effectiveness of prosecution and law enforcement, diminished prevention of socially adverse behavior in the civil area, and other unforeseeable adverse consequences.

Though our primary goal was to argue that effective lawyers can be morally good in their professional lives, our points, taken together, also constitute a defense of the adversarial model of justice as operationalized, albeit imperfectly, in the United States.

NOTES

(1) Cohen, Pure Legal Advocates and Moral Agents: Two Concepts of a Lawyer in an Adversary System, 4 Grim. Just. Ethics 38 (Winter/Spring, 1985). The paper has been anthologized in Professional Ideals (A. Flores ed. 1988); Justice, Crime, and Ethics (4th ed. M. Braswell, B.R. McCarthy, & B.J. McCarthy ed. 1999); Philosophers at Work: Issues and Practice of Philosophy (E. Cohen ed. 2000); Ethics for the Professions (Rowan & Zinaich ed. 2002, forthcoming). Subsequent references to this paper will be to the version published in Crim. Just. Ethics.

(2) Cohen, supra note 1 at 45.

(3) Cohen is not alone in questioning the morality of lawyer behavior. Including the practice of law, Thomas L. Shaffer states that "it is probably impossible for a good person to practice any profession in a society of strangers," The Unique, Novel, and Unsound Adversary Ethic, 41 V and. L. Rev., 700 (1988). He argues that the "adversary ethic" is unsound and notes that critics of the "adversary ethic" believe that it "is a claim of moral immunity for lawyers, or an excuse for lawyer immorality," id. at 699. Eshete, as quoted by David Luban, says that "[e]ffective adversarial advocacy ... demands measures that are unacceptable from a moral point of view.... A firm and settled disposition to truthfulness, fairness, goodwill, and the like would thwart the lawyer's capacity to do his tasks well. To excel as a lawyer, it would be beneficial to possess combative character traits such as cunning," Lawyers and Justice 109 (1988). Luban himself has described a lawyer's "Principle of Moral Nonaccountability" according to which, "[i]f advocates restrain their zeal because of moral compunctions, they are not fulfilling their assigned role in the adversary proceeding," The Adversary System Excuse, in The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 90 (D. Luban ed. 1983). Somewhat similarly, Richard Wasserstrom states that "[c]onventional wisdom has it that ... where the attorney-client relationship exists, it is often appropriate and many times even obligatory for the attorney to do things that, all other things being equal, an ordinary person need not, and should not do. What is characteristic of this role of a lawyer is the lawyer's required indifference to a wide variety of ends and consequences that in other contexts would be of undeniable moral significance," Lawyers as Professionals: Some Moral Issues, in Ethics and the Legal Profession 117 (M. Davis & F. Elliston ed. 1986). Wasserstrom argues that "[e]ven if the role-differentiated amorality of the professional lawyer is justified by the virtues of the adversary system, this also means that the lawyer qua lawyer will be encouraged to be competitive rather than cooperative; aggressive rather than accommodating; ruthless rather than compassionate; and pragmatic rather than principled," id. at 122-23.

In arguing that the U.S. adversarial system of justice is fundamentally flawed and that we should move toward adoption of other models, Carrie Menkel-Meadow gives little attention to the morality of lawyer behavior. She does state, however, that "[b]inary, oppositional presentations of facts in dispute are not the best way for us to learn the truth; polarized debate distorts the truth, leaves out important information, simplifies complexity, and obfuscates rather than clarifies," The Trouble with the Adversary System in a Postmodern, Multicultural World, 38 Wm. & Mary L. Rev. 6 (1996) Relevant to Cohen's argument that lawyers functioning conventionally are often untruthful, she argues persuasively that the "oppositional/adversary model ... lacks ... the genuine search for truth," id. at 13. She suggests that "if the excesses of adversarial behavior concern us we could prohibit the coaching of witnesses, require earlier and more forthright disclosure of adverse, as well as favorable, facts and witnesses and adverse legal authority in both civil and criminal cases, require all lawyers, not just prosecutors to 'do justice' in lieu of only serving their clients' interests, prohibit the cross-examination of witnesses 'known' to the lawyer to be telling the truth and prohibit the presentation of any evidence at all 'known' to be false to the attorney, and impose serious sanctions for violations of these rules," id. at 38-39. Her suggestion that all lawyers be required to "do justice" would appear to the ordinary person to be meritorious. But it calls in effect for the elimination of possibly the most fundamental aspect of the adversarial model. If a criminal defense lawyer works to achieve justice for a crime victim, he will lack undivided loyalty to his client, the criminal defendant.

(4) Cohen, supra note 1 at 42. As noted earlier (supra note 3), several commentators have suggested that the adversarial system prompts immoral behavior by lawyers. Taking this line of thought further, several discuss whether certain apparently immoral behavior by lawyers can be justified by having occurred in the context of the adversarial system. Wasserstrom and Luban reach the same conclusion. Wasserstrom writes: "[T]he amoral behavior of the criminal defense lawyer is justifiable," supra note 3 at 122. Luban's conclusion appears in The Adversary System Excuse, supra note 3 at 92. They focus on the great importance--in criminal cases--of preventing governmental oppression of citizens through criminal prosecution. However, seeming to contradict himself, Luban has pronounced that "a social institution that can receive only a pragmatic justification is not capable of providing institutional excuses for immoral acts. To do that, an institution must be justified in a much stronger way, by showing that it is a positive moral good," (id. at 113). Richard Posner has argued that "academic moralism is incapable of contributing significantly to the resolution of moral or legal issues or to the improvement of personal behavior," The Problematics of Moral and Legal Theory 30 (1999) and would no doubt dismiss Luban's pronouncement as "academic moralism." We agree with Joel Handler, that "the test of knowledge is efficacy," Postmodernism, Protest, and the New Social Movements, 26 L. & Soc'y Rev. 697 (1992.) As elaborated in this article, we shall maintain that in our society the adversarial system has efficacy and that, by promoting compliance with consensually held moral standards, it can be a "positive moral good." Naturally we do not seek to excuse clearly immoral behavior of lawyers. To reiterate: our primary goal is to argue persuasively that it is possible for a lawyer to be effective and moral at the same time.

(5) Cohen, supra note 1 at 51.

(6) Id.

(7) The most important recent defender of the adversarial system has been Monroe Freedman, who has authored numerous books and articles covering the subject. See, e.g., Professionalism in the American Adversary System, 41 Emory L.J. 467 (1992) and (with H. Lichtenstein), Understanding Lawyres' Ethics (1998). Freedman argues that our adversary system is implicitly required by the Bill of Rights. Luban states that Freedman "shows how the duty to put a perjurious client on the stand, or brutally cross-examine a witness known by the lawyer to be telling the truth, follows from the adversary system," The Adversary System Excuse, supra note 3, at 91.

(8) Model Rules of Professional Conduct (1983). (9) Both of us have extensive experience working as lawyers, and believe ourselves to have been both effective and morally good. Admittedly, we may have benefitted from the fact that, as Army defense and prosecution lawyers, our clients were or have generally been assigned to us, rather than having the opportunity to choose their lawyer. Acting ethically and morally probably does not adversely affect an Army lawyer's career. Nevertheless, based on personal observations and knowledge of the world of lawyers, we believe that many effective lawyers are morally good in their professional lives, that some have fair morality in their professional lives, and that some engage fairly frequently in morally undesirable behavior. We acknowledge, to borrow a phrase from the police literature, that lawyering is a "morally dangerous activity."

(10) Cohen, supra note 1, at 39-41.

(11) Id. at 39.

(12) Id.

(13) As previously prescribed in the Model Code of Professional Responsibility, Canon 7-103 (1979), which was in effect prior to the adoption of the ABA Model of Professional Conduct (1983).

(14) Menkel-Meadow, supra note 3 at 38.

(15) Model Rules of Professional Conduct, Rule 12, supra note 13.

(16) Id.

(17) Cohen, supra note 1 at 39.

(18) We do not question that gratuitously harming an adverse party or witness can be professionally beneficial to a lawyer. The senior author, while defending an Army sergeant charged in an alleged three-man rape, did not, because of the alleged rape situation (random attack of strangers), inquire regarding the character and sexual reputation of the female victim. His defendant was sentenced to 20 years in prison. At a time before rape shield laws were yet in effect, the defense lawyer for the most dangerous of the defendants got into evidence adverse information concerning the victim's character and sexual reputation. His client was sentenced to three years in prison.

(19) Cohen, supra note 1 at 43.

(20) See Model Rules of Professional Conduct, supra note 15.

(21) Revised North Carolina Rules of Professional Conduct (1997).

(22) See Model Rules of Professional Conduct, supra note 8.

(23) See Revised North Carolina Rules of Professional Conduct supra note 21.

(24) Id.

(25) Cohen, supra note 1, at 43.

(26) See Model Rules of Professional Conduct, supra note 8.

(27) Luban, supra note 3, at 84.

(28) See Model Rules of Professional Conduct, supra note 8.

(29) Rock v. Arkansas, 483 U.S. 44 (1987).

(30) Nix v. Whiteside, 475 U.S. 157, 166 (1986).

(31) Cohen, supra note 1, at 40.

(32) See Model Rules of Professional Conduct, supra note 8.

(33) Cohen, supra note 1, at 40.

(34) Id. at 44.

(35) Id. at 42.

(36) This saying, as formulated by W. Blackstone, is phrased as follows: "It is better that 10 guilty persons escape, than that one innocent person suffer," Commentaries 358 (21st ed. 1765).

(37) M. Freedman' Lawyers' Ethics an Adversary System 9 (1975).

(38) See, e.g., Michalowski, Perspectives and Paradigm: Structuring Criminological Thought, in Theory in Criminology (R. Meier, ed. 1977).

(39) Many of the arguments we make above apply also to the civil plaintiff's lawyer.

(40) Cohen, supra note 1 at 42.

(41) Ethics class discussion by Dean and Professor David T. Link, Notre Dame School of Law (September 1990).

(42) Cohen, supra note 1 at 44.

(43) Id. at 44.

(44) Barron's Law Dictionary 185 (2nd ed. 1984).

(45) Id. at 185.

(46) Id. at 16.

(47) As examples, when, on behalf of a client, a lawyer enters a not guilty plea in a criminal case, makes a contract offer, or pays money by the client, the lawyer is acting as the client's agent.

(48) For a relevant discussion, see Simon, Should Lawyers Obey the Law?, 38 Wm. & Mary L. Rev. 217 (1996).

(49) See Revised Noth Carolina Rules of Professional Conduct, supra note 23.

(50) L. Kohlberg, The Psychology of Moral Development (1986).

(51) J. Nairne, Psychology: The Adaptive Mind 137 (1997).

(52) We should note that a lawyer in private practice with these competencies must, to succeed, get clients. We believe that some lawyers get some clients because potential clients know that they engage in unethical practices, such as suborning perjury.

(53) U.S. Department of Justice, Bureau of Justice Statistics, The Prosecution of Felony Arrests (1983).

(54) Cohen, supra note 1, at 45-48.

(55) A lawyer is ordinarily the agent of his client (see supra note 47). When a lawyer acts contrary to the interests of his client pursuant to the lawyer's own morality, the lawyer is clearly not, in the expression of his own morality, acting in the capacity of the client's agent.

(56) Cohen, supra note 1, at 46.

(57) Id. at 50-52.

(58) See Simon, supra note 48.

(59) M. Freedman, supra note 37, at 9.

(60) See F. Schmalleger, Criminal Justice Today: An Introductory Text for the Twenty-First Century 350 (5th ed. 1999).

(61) Cohen, supra note 1, at 45.

(62) See supra note 5.

(63) See L. Mays & L.T. Winfree, Contemporary Corrections, 192 (1988), citing A. Beck & D.Gillard, Prisoners in 1994, Bureau of Justice Statistics (1995).

(64) Id.

(65) Raleigh News & Observer, July 11, 2001, at XX.

(66) There have been numerous media accounts of case dismissals resulting from misconduct in the Los Angeles Police Department Ramparts Division.

(67) Menkel-Meadow, supra note 3, at 41.

(68) Luban is especially critical of the adversarial model as it operates in the civil area, supra note 3 at 92.

(69) F. Hayek, Law, Legislation and Liberty (1982).

(70) See Clynch & Neubauer, Trial Courts as Organizations, 3 L. & Pol'y Q. 69-94 (1981) and R. Flemming, P. Nardulli, & J. Eisenstein, The Craft of Justice: Politics and Work in Criminal Court Communities (1993).

(71) See supra note 45.

(72) See supra note 47.

(73) See F. Hayek, supra note 69.

John M. Memory, editor (with R. Aragon) of Patrol Officer Problem Solving and Solutions, is a criminal justice consultant and researcher for the Justice Research Association. Major Charles H. Rose III is a Professor in the Criminal Law Department at The Judge Advocate General's School, Army, Charlottesville, Virginia.
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Title Annotation:Elliot D. Cohen
Author:Memory, John M.; Rose, Charles H., III
Publication:Criminal Justice Ethics
Article Type:Critical Essay
Geographic Code:1USA
Date:Jan 1, 2002
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