5.7 Critical Perspectives on Legal Rules & Legal Ethics
Gemma Smyth
Critical Perspectives on Legal Rules & Ethics
While professional conduct rules remain very important for the purpose of licensure and to set out contours of the profession, it is also important to keep a critical view of their role. As Richelle Samuel wrote in “Legal Ethics and Moral Dilemmas: Strategizing Around Race in the Provision of Client Service”, https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1052&context=jlsp
“Canadian codes of professional conduct are rooted in the principle of legal liberalism that emphasizes ‘the rule of law, formalism, neutrality, abstraction and individual rights’. As far as issues of race are concerned, legal liberalism operates from the belief that the rule of law is and should be applied equally to all, without distinctions based on race or other status… Critical Race theorists correctly challenge the principle, because legal liberalism dismisses the salience of race in the larger societal context, as well as in the legal profession”.
Without understanding the historical context of the profession and how professional conduct rules impact communities, ethical codes can appear morally and culturally neutral. The reality is far from this.
Others have argue that codes unto themselves are actually of limited utility, that their adoption is a process dominated by select interests, and so on. From a learning perspective, lawyers may learn more from how legal ethics are actually implemented rather than from reading rules that may or may not seem applicable to individual ethical decision making. Further still, unhealthy trends in the profession such as long hours, high pressure, billable hours requirements, and unrealistic standards do little to promote ethical behaviour. Promotion of ethical behaviour is tightly connected to the context in which work occurs.
Reflection Questions
- Choose one rule from the LSO Rules of Professional Conduct that exemplifies Samuel’s critique: “legal liberalism dismisses the salience of race in the larger societal context, as well as in the legal profession” and describe how it might have discriminatory impcats (eg, upholds white supremacy, maintains capitalist realism, etc.).
Morals in the Legal Workplace
While many placements involve working with clients who otherwise might not receive representation, others are in firms that represent clients whose views might not be shared by the student. This raises many moral questions for students who have crafted a professional identity rooted in social justice values.
There are many approaches to this thorny question. Some lawyers recommend working in a big firm context, paying off debts and doing social justice work thereafter. Others take the view that social justice work can be done regardless of context, in big and small ways.
Nonetheless, bearing in mind critical perspectives on legal ethics and professionalism is important for reflective practice and learning. This Washington Post article documents one self-described liberal lawyer’s experience clerking with the late Justice Scalia as “one of the defining experiences of [their lives]”. Ultimately, it is these critical perspectives that will also improve self-governance in the profession.
Below, Kwame Anthony Appiah gives perspective on this question in answer to an American law student’s question.
Is It OK to Take a Law-Firm Job Defending Climate Villains?; The Ethicist
The New York Times – International Edition September 10, 2022 Saturday
I come from a working-class family. I have worked very hard in school and graduated college with little debt, so when I was given the opportunity to attend an elite law school, I took it – along with a $150,000 price tag. Some people may scorn me for such a decision, but this was my dream school, and I saw it as a ticket to an echelon of society and opportunity that was otherwise entirely barred to me.
While I entered law school hoping to work in the public interest, I now face the reality of paying back my loans. I took an internship at a big law firm where I am paid very well, and I’ve been invited to work for them once I graduate. The salary would be enough for me to pay off my loans, help my family and establish a basic standard of living for myself – plus maybe own a house or even save for retirement, which would be impossible for me on a public-interest or government salary.
But the firm’s work entails defending large corporations that I’m ethically opposed to, including many polluters and companies that I feel are making the apocalyptic climate situation even worse. Even if I only stay at the firm for a short time to pay off my loans, I would be helping in these efforts for some time.
Basically, I feel torn between two value systems. The first is the value system of my parents, which prizes hard work and self-sufficiency. My parents are very proud of me for working in a high-level job that allows me to support myself. The second is my own personal moral code – the little idealist within me who wants me to drop the corporate angle in order to help as many people as I can, even if it results in a difficult life for me.
I know it is selfish to take this corporate job. But is it unforgivable? Will defending polluters, even for a short time in a junior position, be a permanent black mark on my life? (Name Withheld)
Congratulations on your achievements thus far – and on asking hard questions about how to use the skills and the qualifications you’re acquiring. Decisions like the one you face are complicated. You will have been taught in law school that everyone accused of a serious crime is entitled to legal counsel. The situation is different when it comes to civil cases and to corporate defendants. (The details here vary with the types of cases and with jurisdictions.) But corporations are generally required to represent themselves with properly licensed lawyers, in both civil and criminal proceedings. And the principle remains that representing a malefactor isn’t, ipso facto, an act of malefaction.
Now, we’re rightly concerned when corporations do damage to the environment, and so to humanity as a whole. But it’s hard to see how the world would be improved if such corporations couldn’t find legal advice and representation. Is a corporation really going to behave better if it doesn’t know what the law is? More than that, the world would most likely be made worse if corporations could only find lawyers who were indifferent to the wrongs their clients were doing. As with criminal defense, we need lawyers who will work diligently for people and associations whether they approve of them or not. Your job, whatever your feelings about your clients, would be to give them what they’re entitled to. That includes effective and committed legal advice and guidance; it does not include helping them to break the law or lie to the authorities. Indeed, you have a duty, as an officer of the court, to tell them they can’t do these things and to refuse to assist them in doing so.
Even if what your clients are doing is legal, you may still feel uncomfortable supplying guidance and representation, because the activities shouldn’t be legal. We ought to have laws and regulations that treat the climate crisis with full seriousness, and we don’t. Refusing to take the corporate-law job does disconnect you from the wrongs these clients do but wouldn’t deprive them of legal assistance. After all, the firm isn’t going to stop serving them if you decline to join it. But you don’t suggest that your career choice will make a difference to what these clients do. You simply don’t want to be involved in helping them to do it. That’s why you speak specifically of a “black mark” on your life….
Some analysts, notably those associated with the effective-altruism movement, might even suggest that the high-paying track could be the morally best one for you to take. In the earning-to-give approach – explored in the philosopher Peter Singer’s book “The Most Good You Can Do” – people with the requisite skills may set out to earn lots of money and give a great deal of it to humanitarian causes, helping the world more than they would have had they devoted themselves directly to doing good. You might, in this scenario, pay off those loans, help your family and then, as a richly remunerated partner, give a big chunk of your earnings to saving lives in the developing world or supporting causes that will advance climate security and justice. You’ll have passed up the low- paying job at the public-interest center, but your generous donations will fund three such positions. If your aim were simply to help as many people as you can, you might conclude, after a careful assessment, that going for the big paycheck was the right thing to do.
Still, one party who matters here is you. Selfishness isn’t a matter of taking your interests and those of your loved ones into account; it’s a matter of giving those interests more weight than they deserve. Getting money to escape debt and help your family is a perfectly reasonable aim, consistent with being an ethically admirable person. But so is taking satisfaction in your work. If much of your time is spent in the service of corporate nogoodniks, you may well end up being unhappy. That’s not a choice you can be obliged to make. On the other hand, if you do become a partner in a firm like the one at which you’re interning, you may be able to change the balance of cases that the firm accepts. Or you could plan on switching jobs later to better align your livelihood with your values, defending the environment rather than those who ill use it. It’s altogether possible that your having worked at the high-paying law firm will give you valuable insight into how corporate polluters operate.
The calculus here involves all these conflicting considerations. Whichever way you go, I suspect, you will be able to do good. Your letter suggests that the “little idealist” within you won’t be taking early retirement; staying on the course you’re now on doesn’t mean that you’ll forget about the causes that matter.
Moral Distress & Moral Residence – Reframing Ethical Decision Making
Students in a clinical or externship placement may encounter problems that might be framed as ethical decisions, but often implicate a student’s morality or sense of justice.
Some of these problems might be framed as an ethical duties of a lawyer – for example, aggressive cross-examination of a survivor. But other problems are related to workplace approaches, availability of resources, framing of legislation, and so on. For example, a student who works tirelessly on a disability claim for a client and “wins” still leaves a client with less money than they need to live. A client submitting a refugee claim who escaped an oppressive regime cannot secure documents from their home country. A client who experienced sexual assault cannot remember key details of the incident which will likely leave them open to questions of credibility. These and many other issues can trigger what other professions have termed “moral distress”.
From a nursing perspective, “moral distress” is more developed. Merlinda Weinberg explains the term as follows:
“In general, moral distress is understood as relating to ‘painful feelings and/or the psychological disequilibirum’ that arises when one’s professional conscience of morally appropriate action cannot be carried out due to institutional obstacles or other impediments… Jameton developed the concept further, making a distinction between initial moral distress and the reactive distress that ensues when solutions are not found and the moral distress continues…. It can result in a ‘moral residue’, ‘the cumulative effects of unresolved moral distress’… Moral distress has been linked to burnout, reduced job satisfaction, and higher turnover… Ethical dilemmas concern two or more courses of action that are in conflict (and will potentially have both positive and negative consequences), each of which can be defended as viable and appropriate. In contrast, moral distress arises if one action is preferred and seen as morally superior, but the actor feels blocked from pursuing it by factors outside the self.” (2009) 26(2) Canadian Social Work Review 139 at 140-142.
Weinberg noted the absence of discussion of “moral distress” in the social work field. In her view, the absence of this concept in the overall framing of social work ethics stunts structural analysis. Weinberg posits that
“the absence of this concept relates to the overall social construction of ethics in social work… The history of the profession of social work, which embraced social casework and an individualized response to the plight of marginalized groups, has contributed to viewing ethics narrowly within the dyadic relationship between worker and service user. Also the bifurcation of social work into practice and policy streams results in front-line workers missing the connections between their day-to-day work and the systemic factors that affect their practice. As part of the emphasis in Euro-Western values generally, while there is discussion of broader dimensions of ethics in social work, the emphasis is on decision-making as a private matter, not an institutional or communal responsibility. It is ironic that, given social work’s contribution of an approach that identifies and addresses persons within their environments… it overlooks a concept such as moral distress, which recognizes that connection of person and broader structures.” (144)
This critique mirrors closely aspects of the legal profession. Social worker Bob Mullaly (2007) crafted a code of ethics for progressive social workers (which he frames as “structural social work”). In this code, he articulates and challenges the foundational framing of the profession. Again, rather than individualizing mental health or legal ethics, he reframes “moral distress” as a failure of neo-liberal systems. Social workers (and many lawyers) are caught in an operational framework that will always fail clients, leaving workers in a place where a morally and ethically sound outcome is simply impossible.
“The concept of moral distress recognizes the political nature of the work in a manner that “ethical dilemma” does not. Professional self-reflexivity is crucial, and moral distress provides a vehicle for identifying the gap between best intentions and what is actualized on the job. People enter social work desiring to do good. However, the neo-liberal environment in which social workers function creates huge stressors due to erosion of the social safety net, reductions in resources, and increasing restrictions on the autonomy of professionals, making it very difficult for them to fulfil that desire for goodness. Consequently, professionals sometimes fail in doing what they perceive of as their best, most ethical practice, and the theoretical tool of moral distress allows for a recognition of both that failure and the emotional price that workers pay when failure occurs…”
“Moral distress” is also not a well-developed concept in law practice, and certainly not in a traditional framing of legal ethics. But this idea forms the heart of many day-to-day decisions particularly in areas of law such as criminal, social benefits, family, immigration, and so on. Structural underfunding of legal aid, welfare, workers’ compensation, and housing all contributes to an inevitably morally distressing day-to-day context for people subject to these systems and those hoping to support them.
Reflection Questions
- How might “moral distress” be related to mental health and wellness in the legal profession?
- If an ethical code did address moral distress, what might this look like?
- What actions or approaches to law practice do you think might destabilize moral distress?
- Consider an example of when you experienced moral distress in your clinical or externship placements. How did you feel when this happened? What ethical framing was helpful (if any)? How did you resolve the competing ideas regarding justice, fairness, and morality in these situations? How does focusing on systems help frame moral distress?
