"Professionalizing Moral Engagement"

I usually start my course on Professional Responsibility with a discussion of a case where a lawyer is faced with a representation that has troubling moral implications. I ask my students to list options for the attorney. When we step back and look at the list, we usually find a very clearly defined spectrum... from quitting the job (or the profession entirely) ... to doing what the client wants and not caring about anything else (complete "detachment" or, as one of my students called it this year, becoming a "robot"). Somewhere in the middle, but usually not the first option suggested, someone asks, why not talk to the client about it?... and then someone says because maybe the client will think you are weak, or because that's not what the client wants to hear, etc... And so goes the discussion. Good stuff.

We usually agree to disagree on exactly what is the best course of action for that particular case but we do agree that as lawyers we often will have to face some level of moral detachment.

Coincidently, I just came across a note in the Legal Ethics Forum about an article by Prof. Rob Vischer on this subject called Professionalizing Moral Engagement (available here) which proposes that the professional norm should be the opposite of moral detachment. Here is the abstract:

This essay is an invited response to Michael Hatfield, who argues that the legal profession might avoid creating lawyers willing to “sign off on torture if their professional education did not begin with dis-integrating the skills for intellectual agility from the skills for moral resolution.” I contend that we do not need lawyers to reach “moral resolution," for it is not the lawyer’s job to resolve the moral questions that clients face. We do need lawyers, on the other hand, to ensure that clients are aware of the moral questions that are often embedded in the legal questions raised by the representation. Lawyers’ recurrent failure to raise moral questions infringes on client autonomy by precluding the client’s ability to fully consider what is at stake in the case. Our approach to professional formation both during and after law school almost totally ignores this “moral due diligence” dimension of the attorney-client relationship. Especially in cases where the governing law is indeterminate, lawyers need to be able to engage their clients in a moral dialogue, which requires both familiarity with, and sensitivity to, moral reasoning. But lawyers’ capabilities in this regard should not be deployed in order to resolve the moral questions; rather, they should be deployed in order to assist the client in resolving the moral questions. The essay lays out some possible avenues by which legal education can support the project of professionalizing moral engagement.