I pause from grading for most any reason, but this time to note (courtesy of LPB) Professor Russell Pearce's interesting article The Legal Profession As A Blue State,recently posted on SSRN.
Pearce argues that lawyers, like blue-state voters, do not want to talk about values, first principles, truth, and all that. Lawyers and blue-state voters subordinate the search for truth to the search for accommodation.
To prefer accommodation to truth is not to prefer something other than ethics to ethics, of course, it is to prefer a thin, live-and-let-live ethical stance to thicker more heavy-handed ethical stances. Professor Pearce recognizes this fact. His point is not that this thin ethical stance is not ethics, but that it is bad ethics: "unless lawyers believe, like Milton Friedman, that the public good consists of nothing more than maximizing individual freedom, they must find a way to translate their public responsibility into their everyday work. That would not require dictating to clients or overriding their choices. It would require counseling clients on the moral implications of their choices." (p.1364) Thus, lawyers should engage clients in "moral counseling" and, toward that end, lawyers should "develop the ability to promote dialog among and between people of differing values." (Id.) If lawyers could only do that, they might "make a valuable contribution to healing the Blue State-Red State divide." (p.1365)
True collective action problems aside, I embrace the Friedmanite view Pearce decries, so it is not surprising that I do not agree with this conclusion.
If lawyers had unique insights into such questions as abortion, stem-cell research, capital punishment, and so on, then it might make sense for them to enlighten their clients. If this were the case, however, I don't see why lawyers should limit themselves to kibitzing. Why would they shy away from dictating what clients should do, or overriding client choices, options Pearce disavows?
One answer, I think, is that lawyers have no such unique insights on hot-button moral issues. One of Pearce's examples illustrates the point. A Tennessee lawyer is appointed to represent a minor seeking judicial permission for an abortion. The lawyer believes abortion is murder and wants either to decline the appointment or to talk the client into talking to her parents or at least thinking about doing something other than, as he sees it, killing her baby. The Tennessee Supreme Court thought that it would have been improper for the lawyer to foist his moral views on the client (p.1342).
Whatever one thinks about the lawyer's views, there is nothing particularly legal about them. The lawyer has no greater knowledge on this subject than anyone else (which is one way of saying there is only a very limited amount of "knowledge" to be had). What the lawyer has is an opportunity, which Pearce wants more lawyers to take. But to have an opportunity to do something does not imply that one would do it well, or even that it should be done at all.
Tennessee should not have forced the lawyer to represent a client he did not want to represent. That violation of Friedmanite principles is what created the problem in the first place. But one act of coercion does not justify another: I would expect a teenaged girl facing such a horrible choice to perceive lawyerly moralizing as coercion. There is no reason to expect moralizing in such a situation to produce net gains.
Even if lawyers had some sort of insight, there is no reason is there to think the divide will be healed by increasing the fraction of public discourse and legal practice that is devoted to pursuing the truth and decreasing the fraction devoted to accommodation. The problem with moral visions is not that no one knows what moral truth is but that everyone does and their versions often disagree. Increasing the talk of values and truth is what led to the labeling (if not the creation of) the Red State-Blue State divide in the first place. Pearce would put out the fire with gasoline.
(There is in any event reason to doubt whether deliberation and discourse make a difference in many decision contexts, and if reason is indeed the servant of passion there is even more reason to doubt that it will make a difference to hot-button social issues.)
A final point is that there is nothing stopping lawyers from moralizing now, if they want to. I am no fan of it in cases where clients have no choice of counsel--such clients have things hard enough already without having to be the stone on which the lawyer grinds his moral axe--but in competitive markets there is nothing wrong with it so long as lawyers are up front about their preferences, and do not create reliance interests they later disappoint.
Pearce, and many others writing in this vein, think lawyers don't do enough moralizing, however. They think lawyers have been co-opted by the hired-gun paradigm, itself a consequence of liberalism's preference for accommodation over truth.
One could look at it like that, or one could turn the telescope around. Rather than stipulating that the lack of moralizing is a problem, perhaps we should simply ask why there is not more of it and seek to learn from the explanation. Perhaps it is liberal ideology and lawyerly distrust of moral absolutes, the direction Pearce's analysis points. Perhaps it is that, like everyone else, thinking is hard and lawyers economize on it, so they don't spend energy on anything they don't have to. Perhaps lawyers gravitate to work that fits well with their moral vision, so whatever moralizing they might want to do is already bound up in their work. (A hypothesis consistent with the Tennessee example, in which forced representation generates the conflict.)
But we should not discount the chance that lawyers do not moralize as much as some academics would like because lawyers confronted with real clients have a keener sense than academics of the limits of their own moral vision. Maybe they moralize little because they know it will do little good in the complex reality of the real world. Maybe they want at least to do no harm, and find Friedmanite views, bad as some might think them, useful guides to achieving that under-rated goal.