Pearce, Russell G.

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Model Rule 1.0:  Lawyers are Morally Accountable

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Fordham Law Review Volume 70 Issue 5 Article 18 2002 Model Rule 1.0: Lawyers are Morally Accountable Russell G. Pearce Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr  Part of the Law Commons Recommended Citation Russell G. Pearce, Model Rule 1.0: Lawyers are Morally Accountable, 70 Fordham L. Rev. 1805 (2002). Available at: https://ir.lawnet.fordham.edu/flr/vol70/iss5/18 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact tmelnick@law.fordham.edu. Model Rule 1.0: Lawyers are Morally Accountable Cover Page Footnote Professor of Law and Co-Director, Louis Stein Center for Law and Ethics, Fordham University School of Law. Thanks to my friends and colleagues Mary Daly, Matt Diller, Bruce Green, and Deborah Rhode for their helpful comments. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol70/iss5/18 MODEL RULE 1.0: LAWYERS ARE MORALLYACCOUNTABLERussell G. Pearce*Deborah Rhode's recent book, In the Interests of Justice:Reforming the Legal Profession,' offers a bleak account of the legalprofession at the start of the twenty-first century. Lawyers havetremendous responsibility for the administration of justice; yet theyrefuse to accept moral accountability for their actions. This essayexplores whether the legal profession should address this problem, atleast in part, through the addition of a Model Rule 1.0, which wouldhold lawyers morally accountable for their conduct. This Rule wouldnot dictate a particular moral vision. Rather, it would direct lawyerswith sometimes conflicting understandings of their role to wrestle withthe moral implications of their conduct both as individuals and as acommunity.Among elite lawyers, the dominance of the notion that lawyers arenot morally responsible for the quality of justice in society is relativelyrecent. Through the 1960s, most elite lawyers viewed themselves asAmerica's disinterested governing class with a special obligation topromote the public good.2 After the 1960s, the dominant perspectivechanged as lawyers rejected responsibility for the public good in favorof client advocacy. Murray Schwartz and David Luban havedescribed the current standard conception of the lawyer's role ashaving two elements: "extreme partisanship" on behalf of the clientand "moral non-accountability" for the lawyer's actions in pursuit ofthe client's goals.' As Richard Wasserstrom has noted, under thisconception the lawyer becomes "an amoral technician. "5* Professor of Law and Co-Director, Louis Stein Center for Law and Ethics, FordhamUniversity School of Law. Thanks to my friends and colleagues Mary Daly, MattDiller, Bruce Green, and Deborah Rhode for their helpful comments.1. Deborah L. Rhode, In the Interests of Justice: Reforming the Legal Profession(2000).2. Russell G. Pearce, Lawyers As America's Governing Class: The Formation andDissolution of the Original Understanding of the American Lawyer's Role, 8 U. Chi. LSch. Roundtable 381 (2001). While some members of the elite challenged this notion,they found themselves on the margin of the profession. Id. at 383.3. Id at 383-84.4. David Luban, Lawyers and Justice: An Ethical Study 20 (1988) (suggestingthat extreme partisanship and moral non-accountability are basic principles of lawyerideology); Murray L. Schwartz, The Professionalism and Accountability of Lawyers,1805FORDHAM LAW REVIEWThis shift to an amoral perspective is not necessary to justiftyzealous advocacy. Monroe Freedman is an excellent example of thezealous advocate with a deeply moral conception of the lawyer's role.He instructs lawyers and students that they "should be conscious...of how [their] own decisions on issues of lawyers' ethics establish[their] moral priorities and thereby define [their] own moral profile." 6In Freedman's view, a moral understanding of the lawyer's rolerequires zealous representation, moral counseling, and moralevaluation of whether to represent a client. He describes lawyers ashaving personal moral responsibility for their decision to represent aclient,7 but "[o]nce the lawyer has chosen to accept responsibility torepresent a client.., the zealousness of that representation cannot betempered by the lawyer's moral judgments of the client or of theclient's cause."' For Freedman, this zealous representation is not anamoral act. It is "essential... to maintain[ing] a free society"9 andpromoting "the effective exercise of individual autonomy."'" Fromthis perspective, an "attorney acts... immorally by... preempting[clients'] moral decisions, or by depriving them of the ability to carryout their lawful decisions."" At the same time, the identification andpursuit of client goals requires the lawyer to "counsel[ her] clientscandidly and fully regarding the clients'... moral responsibilities asthe lawyer perceives them."12Although Freedman has a well-developed moral conception ofzealous advocacy, most lawyers do not. Unlike Freedman, mostlawyers appear to have generalized the notion of moral non-accountability to all aspects of their role as lawyers.13 Rhode notesthat only one-fifth of lawyers believe that their work "contribut[es] tothe social good. 14 She identifies the "sense that they have not beenable to pursue justice" as "a primary source of career dissatisfactionamong surveyed attorneys." 5  Freedman, too, acknowledges the66 Cal. L. Rev. 669, 671 (1978) (same).5. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HumanRights 1, 6 (1975).6. Monroe H. Freedman, Understanding Lawyers' Ethics 11 (1990). But seeStephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, A Problem, andSome Possibilities, 1986 Am. B. F. Res. J. 613 (arguing for the amoral perspective onmoral grounds).7. Freedman supra note 6, at 49-50, 57.8. Id. at 50.9. Id. at 13.10. Id. at 57.11. Id.12. Id.13. See Rhode, supra note 1, at 65.14. Id. at 8; see also id. at 11, 38.15. Id. at 65.1806 [Vol. 70MODEL RULE 1.0existence of "amorality and even immorality in the practice of manylawyers."' 6While vast literature exists addressing what should be done aboutthis problem, this essay offers a relatively simple proposal. FollowingRhode's suggestion that lawyers should "accept personalresponsibility for the moral consequences of their professionalactions,"' 7 Model Rule 1.0 would state only that "lawyers are morallyaccountable for their conduct as lawyers." Making Rule 1.0 the firstrule would underscore its importance and would indicate that itapplies to all aspects of a lawyer's work. The Rule would beaspirational, similar to Rule 6.1, which explains the lawyer's pro bonoresponsibility,8 and would not define the term "morally," similar toRule 2.1, which authorizes lawyers to "refer [to] moral, economic,social and political factors" in counseling clients.19 The goal of theRule would be to educate lawyers to their moral responsibility and toencourage lawyers as individuals and as members of the legalcommunity to explore how their work "contribut[es] to the socialgood."'The use of the ethical rules to educate lawyers to their moralresponsibility falls squarely within the purposes of the ethics codes.2'The Model Rules acknowledge that some of the rules are"constitutive and descriptive [of] a lawyer's professional role" andthat they "serve to define" a lawyer's "relationship to our legalsystem" which is "vital [to] the preservation of society."' Indeed,precedent exists for enacting rules to encourage lawyers to acceptmoral responsibility. The 1908 ABA Canons of Professional Ethics,which sought to revive lawyers' commitment to the common goodthrough aspirational rules, instructed a lawyer to "obey his ownconscience and not that of his client,"' and to accept "responsibilityfor advising as to questionable transactions, for bringing questionablesuits, [and] for urging questionable defenses." 24In a similar vein, commentators have previously suggested rules ofconduct as a way to encourage lawyers' moral responsibility. In aneffort to temper moral non-accountability in transactionalrepresentations, Murray Schwartz has proposed a Disciplinary Rule16. See Freedman, supra note 6, at 50.17. See Rhode, supra note 1, at 66-67.18. Model Rules of Prof'l Conduct R. 6.1 (2001).19. R. 2.1.20. Rhode, supra note 1, at 8.21. The actual function of the ethics codes is beyond the scope of this paper.For excellent discussions of this topic, see Richard L Abel, Why Does the ABAPromulgate Ethical Rules?, 59 Tex. L Rev. 639, 639 (1981); Deborah L Rhode,Why the ABA Bothers: A Functional Perspective on Professional Codes, 59 Tex.L. Rev. 639, 689 (1981).22. Model Rules of Prof'l Conduct scope and pmbl. (2001).23. Canons of Prof'l Ethics Canon 15 (1908).24. Canon 31.2002] 1807FORDHAM LAW REVIEWprohibiting a lawyer from, inter alia, "assisting a client to gain 'anunconscionable advantage over another person."'" William Simonhas more ambitiously sought to reshape legal ethics into "adisciplinary regime consisting largely of contextual norms, and a set ofrules designed to encourage voluntary ethical commitments andstrengthen the forces that make for informal enforcement of suchcommitments."26 Simon seeks to promote the view that "[lawyersshould take those actions that, considering the relevant circumstancesof the particular case, seem likely to promote justice. '27In contrast, Model Rule 1.0 would not take sides in current disputesregarding the lawyer's role. What it would do is move the debatesregarding the lawyer's moral duties, like that between Freedman, whofavors zealous representation, and Luban, Rhode, and Simon, whofavor some significant limits on that representation, to the center ofthe bar's legal ethics conversations. While the bar currently payssome slight attention to these issues, Model Rule 1.0 would movethem to a more prominent place in the bar's official deliberations andcontinuing legal education courses, as well as in the efforts of theconscientious lawyer to explore her own moral accountability.Despite Model Rule 1.0's neutrality as to the competing visions ofthe lawyer's proper role, some lawyers might fear that any embrace ofmoral responsibility would undermine zealous advocacy. They mightargue that the representation of unpopular clients requires lawyers tobe able to tell themselves and the public that lawyers have no moralresponsibility for their conduct. Indeed, to facilitate representation of''people ... whose cause is controversial or the subject of populardisapproval," 8 Rule 1.2(b) provides that representation of a client"does not constitute an endorsement of the client's... views oractivities. 29But the argument that zealous advocacy requires an amoral defenseis unpersuasive. The Rules themselves certainly do not require moralnon-accountability. As a general matter, the Rules provide broadlatitude for lawyers to exercise moral discretion." Some rules evenexpressly condone morally based conduct. Rule 2.1, for example,provides that lawyers may counsel the client on "moral, economic,social and political" considerations. 1 Nor does a policy justificationfor representation of the unpopular require amorality. Even whilearguing that the decision whether to represent a client is an exercise of25. Schwartz, supra note 4, at 688.26. William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics 196(1998).27. Id. at 138.28. Model Rules of Prof'l Conduct R. 1.2 cmt. (2001)29. R. 1.2(b).30. Bruce A. Green, The Role of Personal Values in Professional Decisionmaking,11 Geo. J. Legal Ethics 19, 20 n.5 (1997).31. See also R. 1.16.1808 [Vol. 70MODEL RULE 1.0moral responsibility, Freedman makes a morally based argument thatthe right of every person to counsel is "essential ... to a freesociety. 32Freedman also points out that the amoral justification is bothineffective and unnecessary. It has not succeeded in protectinglawyers who represent unpopular clients from "vilifi[cation], even byother lawyers and judges. '3 3 Nor has it proved essential. In the mostnotorious cases, there seems to be no shortage of lawyers. Freedmannotes that "[d]espite the harshest public denunciation, lawyers havecome forward to defend 'the meanest man in New York' and even tosupport the right of Nazis to march in Skokie."-' Similarly, a NewYork lawyer has recently obtained extensive news coverage bypublicly declaring his willingness to represent Osama bin Laden.-By compelling zealous advocates or other representatives of theunpopular to explain their conduct on moral grounds, Rule 1.0 willnot undermine their arguments and may make them more effective.The public-and other lawyers and judges-are much more likely tobe persuaded (or at least less offended) by a moral justification of theadvocate's role, like that proposed by Freedman, than by the baldassertion that "As a lawyer, I am not morally accountable."Undoubtedly, though, Rule 1.0 would not suffice to preventcriticism of those representing unpopular clients or to guarantee thatlawyers accept moral responsibility. It would, however, provide aconcrete step toward Rhode's prescription for practicing law "in theinterests of justice."36 As Rhode suggests, if lawyers acknowledgetheir moral accountability, their personal and communal responsibilityfor justice will become integral to their practice. 732. Freedman, supra note 6, at 68.33. Id at 69; see also Rhode, supra note 1, at 75 (discussing an African-Americanlawyer representing the KKK).34. See Freedman, supra note 6, at 69. Freedman previously represented -Dr.Bernard Bergman, a nursing-home owner who was... characterized in the press as'The Meanest Man in New York."' Monroe Freedman, We Are Publicly Accountable,Tex. Law., Sept. 27, 1993, at 18.35. Dave Saltonstall, Lawyer Says He'd Defend Bin Laden, Daily News, Sept. 26,2001, at 20.36. See generally Rhode, supra note 1.37. Id. at 17-18.2002] 1809Notes & Observations

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Model Rule 1.0: Lawyers are Morally Accountable

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