How are we to deal with a client who wishes to engage in conduct which, though legal, violates our own set of moral standards? Let’s put aside, for the moment, our own well-honed powers of rationalization (which allowed, among others, the lawyers at Vinson & Elkins to bless the fraudulent practices of Enron as “creative” and “aggressive”). The opportunities are myriad in our practices:

1. The spouse who wants us to leverage financial arrangements to obtain a parenting plan which is probably not in the children’s best interests.
2. The business owner who is able to technically avoid penalty for environmental degradation, although their emissions are clearly harmful.
3. The taxpayer who has a good argument for saving thousands of dollars in taxes on a shelter that obviously is inconsistent with the policy underlying a certain regulation.
4. The litigation client who wants you to discredit and embarrass a witness who you believe is being truthful.

The list can take up the entire space allowed for this column. You can likely conjure a scenario which is relevant to your own type of practice. Speaking to this challenge more than a century ago, Elihu Root noted, “about half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.” Yet is there anything in our Rules of Professional Conduct that speak to this obligation?

RPC 2.1 is the only ethical rule which speaks to the lawyer’s counseling role. We are directed to provide candid advice as independent counsel, taking into consideration all relevant factors, but specifically enumerating four. Twice a year, in my Interviewing & Counseling class at U.W. Law School, I give students a quiz, inviting them to name these four expressly named factors, choosing them from a list which includes: economic, religious, psychological, social, political, psychological, interpersonal and moral. Can you pick the four?

In 1981, the ABA Model Code stated, “In assisting his client to reach a proper decision, it is often desirable for a lawyer to point out those factors which lead to a decision that is morally just as well as legally permissible.” This notion is reinforced by a comment to ABA Rule 2.1, which states in part, “Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon more legal questions and may decisively influence how the law will be implied.” However, there is an ongoing debate in the legal community between those who promote the exploration of moral consequences of client’s decisions and others who fear that such exploration may impede client’s autonomy.

Client autonomy - the freedom of a client to choose what is best for him or herself has been forcefully promoted by leading legal ethics scholars such as Monroe Freedman. It is argued that - after all, since morals and values may be varied and personal it is inappropriate for counsel to “impose” his values on the client. This leads us to ask: Are there any universal moral principles which govern human conduct? Such a question highlights what is so interesting in the Ten Commandments on the courthouse lawn controversy. In an excellent essay, The Ten Commandments on the Courthouse Lawn and Elsewhere Professor Paul Finkelman argues persuasively that the Ten Commandments cannot credibly be characterized as a secular and “neutral” set of standards. On one hand, the commandments stand as a Judeo-Christian foundational document. Placement on public grounds is a quintessential violation of the establishment clause. Yet, after the first commandments which state “I am the Lord thy God,” “Thou shall have no other Gods before me” and “Honor the Sabbath day to keep it holy,” the tablets set out a set of simple principles which are (close to) universally accepted as necessary for the functioning of a just society. Theft; lying to the detriment of others; bringing dishonor on your family (mother and father); greed and envy (coveting); damaging the bonds of marriage through adultery, and murder (or in other translations “killing”) are prohibited. These proscriptions form the most elegant reduction of our society’s complex network of laws. They are as nearly universal as you can get - and the commandments reflect the notion that law is firmly placed on a foundation of moral - if not necessarily religious - principles.

Yet, with the exception of teachers like Thomas Schaffer and Robert Cochran, instruction in law is relativist and utilitarian. The practice is often preoccupied with technical competence. It is seen as an avenue of personal economic gain. Students emerge from law school with such a burden of debt that any practice which does not compensate handsomely is viewed as impractical - impossible. Such pressure underscores the beautiful gift to justice that is represented by the Bill and Melinda Gates Foundation scholarship which will cover U.W. law school tuition for students willing to commit to a career in public service after graduation.

Returning to RPC 2.1 - this rule invites to engage in a rich professional exploration. What is our relationship with our clients? Are there some clients with whom we feel comfortable engaging in moral dialogue and others not? Do we ever ask our client, “How will this course affect other (named) people?” Are you, as a junior attorney, able to engage in these discussions with the senior associates or partners in your firm? If not, why not? Can you engage in a discussion about the moral rightness of a course of action without compromising your fiduciary duty?

When is it appropriate to withdraw from representation when the client insists on a course of action you feel to be morally indefensible? When is it necessary to do so? Have you ever rationalized your way out of such withdrawal because of the economics of the situation?
The inclusion of morality as a subject of counseling certainly invites, if not compels this exploration. More importantly, perhaps, it serves as a constant reminder that we need to engage in our own reflection and self-assessment to assure we are standing on our own strong foundation in doing this great work which we do.

5 To be sure, this is a reflection of the enormous complexity of 21st Century American society.