Beruflich Dokumente
Kultur Dokumente
1 Monroe Freedman and Abbe Smith, Understanding Lawyers Ethics (LexisNexis 4th
Edition 2010) 45.
2 Id. at 70.
1
ordinarily determine what choice or course of conduct is in their own best interests. Finally, many believe that the
adversarial system functions best when clients are represented by zealous advocates who are unfettered by
personal moral conflicts.
Some commentators have criticized the traditional conception of the lawyers role and have advanced
alternative views. Critics charge that role differentiation causes lawyers to act in amoral and, occasionally, immoral
ways.
They argue that this approach makes lawyers complicit in inflicting harm on non-clients and society in
general. Lawyers become agents for ratifying privilege, disproportionate power, and unjust laws. They charge that
the doctrine ignores inequities in access to competent representation at every legal and political level in American
society. Additionally, they claim that, at a personal level, role differentiation requires a degree of moral indifference
and emotional compartmentalization that is harmful to or unattainable for many lawyers . Critics contend that
lawyers fail to have the envisioned moral consultations with their clients in many cases and assume (often
erroneously) that their clients favor a morally questionable approach that maximizes the clients interests over a
more altruistic one. According to this view, lawyers act in their dealings with third parties as if they are
representing the Holmesian bad man when that may not be so. Finally, as for client autonomy and control, critics
of the traditional conception say that this is often an illusion in practice for clients who are poor and powerless.
Critics charge that lawyers in these situations often abandon their traditional role, take control of decision-making,
and project their desires onto their clients or the situation.
Some alternative views would direct lawyers to seek justice in each case and would allow lawyers to
nullify or subjugate their clients lawful goals in pursuit of a higher purpose. 3 They would allow lawyers to
undermine or subvert the enforcement of unjust laws. These alternative approaches allow or require lawyers to
substitute their own assessment of what is best in a situation even though they have assumed fiduciary obligations
to act for their clients. At their cores, alternative conceptions of the lawyers proper role assume that there is a
recognizably desirable moral point of view or a conception of justice that is correct or best.
Consider this example:
Archibald is a wealthy client who consults Louisa, a tax attorney.
He desires to use whatever means the tax laws allow to minimize
the amount of taxes he owes. Louisa knows about a tax loophole
in a recent law enacted by Congress that favors wealthy taxpayers.
Louisa personally believes that the tax system is unfair to middle
class taxpayers who pay a disproportionate share of their income
in taxes.4
Alternative conceptions of the lawyers role would suggest that it would be appropriate for Louisa to refuse to
advise Archibald about the availability of the loophole because of her assessment of the injustice inherent in
making exceptions to tax laws that favor only the wealthy.
The criticisms of role differentiation were and are most compelling in situations where a clients lawful choice or
goal will inflict serious physical, financial, or emotional harm on third persons and the existing ethics rules do not
seem to recognize or account for that harm sufficiently. The assigned problems are designed to allow you to think
through some examples of those situations.
3 Id. at 48.
4 Id. at 47.
2