Sunday, January 2, 2011
Much of law school remains centered on a litigation model in which students ask how should a judge decide a case or how should lawyers argue a case to win. However, lawyers also counsel clients in making moral decisions. For example: In pursuing a divorce, should I take actions that might harm a child or spouse? In a business deal, what will be the effect on consumers and on the environment? Should I settle this case or drag it out to the detriment of my opponent? Who will benefit and who will suffer if I write my will in a certain way?
In “Lawyers, Clients, and Moral Responsibility,” (Thomson/West), Thomas Shaffer and Robert Cochran employ Anthony Trollope’s novel, “The Warden” (which I recommend) to illustrate three style of counseling and moral discourse:
1. Empathetic understanding, which is sometimes helpful.
2. Acquisitiveness: Counseling the approach that will best benefit the client financially without regard to moral considerations—and also may benefit the lawyer.
2. Parentalism: Telling the client what to do and assuming that you fully understand the client.
Instead, the authors propose that lawyer and client engage in a moral discourse and reason together, recognizing the moral issues, applying moral values to problems, and trying to do what the client perceives to be the right thing. They acknowledge that the task is not an easy one.