Institutionalised ought as professional value

B. Wendel approaches the problem of the priority of an institutionalised ought over a  pure moral ought a  little differently. He adopts a  perspective dealing primarily with legal ethics, that is, problems related to attorneys and legal counsels, and not issues related to judges, as Raz did. According to the author, on the most general level the basic problem of legal ethics is not simply the difference between the rules of professional role and general morality or the principles of justice, but whether the former have political legitimacy. Embedding discussion in the context of legitimisation differs from the traditional approach, according to which a lawyer’s task is to act in a loyal way in the interests of their client. It also allows the establishment of an original proposal that the role of a lawyer is not determined by acting in the interests of their client, but fidelity to law, and also treating the law with respect. According to Wendel, the law is not the limit of a lawyer’s activity, which should be directed by the client’s interests, but it constitutes their role. The similarity Raz’s concept is immediately clear, even if Raz limited this to the role of a judge. Wendel, however, goes beyond

the Raz’s considerations, because his approach is not simply an analytical or descriptive theory, but is based on “political normative considerations relating to the ethics of citizenship in a liberal democracy.”²⁶

The normative perspective, referring to political legitimacy of the law, allows a  slightly different solution to the problem of not taking into account non-legal reasons. Here, too, dilemmas are solvable, but this results from attributing positive value to the lawyer’s role. This value results from political legitimacy and at the same time justifies departures from pure moral ought. It can be seen that this also confirms the inability to resolve the fundamental problems of professional deontology without taking into account the dimensions of values and moral responsibility. The value to which Wendel most often refers is legality. At the same time, this is defined as a political value. As a consequence, lawyers are understood as quasi-political players, performing important political functions in a political community. This is also a significant difference compared to traditional views. The latter refer to the opposition of general morality, addressed to every person, and professional ethics, addressed to the performer of a given role. However, if one adopts a political perspective, instead of people, one should speak of citizens – as follows from assuming participation in the political community – free and equal. At this point, the author refers to such classics of liberal political thought as J. Rawls.²⁷

The traditional approach to legal ethics, which was mentioned several times here, is described by Wendel as Standard Conception. It consists of three basic principles: Principle of Partisanship (lawyers are obliged to act only in the interests of their client), Principle of Neutrality (lawyers should not judge their client and their affairs, and consequently interfere with them based on their beliefs) and Principle of Nonaccountability (as long as a lawyer acts in a role, they should not be judged in moral terms, but through the prism of rules of the professional role).²⁸ Standard Conception is usually justified by reference to such categories as client’s autonomy, dignity and procedural fairness.²⁹ On such grounds, one can also consider the problem of moral dilemmas. At first glance, it also seems to introduce their resolvability, making the client’s interests the paramount criterion. However, first, this lacks sufficient justification, because none of the above arguments can justify the priority of a category as formal and indefinite as the client’s interests. Second, in the absence of sufficient justification of superiority, these interests become one of the reasons that is

26 W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton: Princeton University Press, 2010), pp. 5–8.

27 Ibidem, pp. 11, 18, 23.

28 Ibidem, p. 29.

29 Ibidem, pp. 31 et seq., 37 et seq., 44 et seq.

subject to balancing and, as a consequence, more conflicts are possible when these interests are contrary to the law or to the lawyer’s beliefs.

That is why the author proposes an approach which includes an alternative to each of the Standard Conception principles. He suggests replacing the Principle of Partisanship, i.e. ordering lawyers to act only in the interests of their client, with the imperative of implementing a client’s legal entitlements.

He understands the latter as “substantive or procedural right, created by the law, which establishes claim – rights (implying duties upon others), privileges to do things without interference, and powers to change the legal situation of others (e.g., by imposing contractual obligations).” They can be created by both the legislator as well as courts and public administration. They can also be created by citizens themselves, e.g. by means of contract.³⁰ Actions to protect them will usually be the same as acting in the interests of the client, but will allow less frequent moral conflicts to be solved in line with the essence of the lawyer’s role. The justification for this position is the aforementioned general thesis that the role of a lawyer is constituted by fidelity to law, which results from the understanding of lawyers as quasi-political players. Only this approach legitimises not being guided by pure moral obligation in conflict situations. The law is in principle legitimised, and so are the roles of lawyers as its implementers.

Such legitimacy is missing if one assumes that their task is to pursue the client’s interests.

The consequence of this approach is that lawyers should not look at the law from the external perspective of the client’s interests and choose legal means so that it these interests may be fully serviced, but should adopt an internal point of view. This requires defining the client’s legal position and legal entitlements.

The author refers here, among others, to H.L.A. Hart, but it is clearly visible that he adopts a  normative perspective, not a  descriptive one. He claims, for example, that:

The good citizen regards the law as a source of reasons, while bad citizen’s reasons are essentially unaltered by the law, except insofar as the law is another source of negative consequences like being deprived of liberty or property.³¹

Thus, he valuates the adoption of the internal and external points of view by imposing on this the distinction, of clearly political character, between a good and a bad citizen. The internal point of view is not just a conceptual condition of law – a presupposition – as it is in contemporary legal positivism, but also

30 Ibidem, p. 50.

31 Ibidem, p. 62.

a postulate. It seems that it is necessary to give the general idea of fidelity to law a normative character and translate it into more detailed duties. An example of the latter may be the claim of how the position adopted by the author influences the problems related to the interpretation of law:

The ethical principle for lawyers defended here is that loyalty to clients within the law requires lawyers to interpret the law, assert positions, plan transactions, and advise clients on the basis of reasons that are internal to the law. Relying on extra-legal considerations like the justice org efficiency of law is not permitted (…) Fidelity to law requires to aim at recovering the best understanding of the existing law.³²

This principle is somewhat mitigated in the procedural context, where the views presented by lawyers are balanced by the opposite position of the other party within the adversarial framework. It is stronger when a  lawyer advises a client in relation to planned actions, for example, drawing up a legal opinion, or drafting a transaction.

Of course, the approach proposed by Wendel does not solve any problems, which he realises perfectly well. From the perspective of the moral dilemmas we are interested in, two seem particularly interesting. First of all, he notes that in legal practice there may be situations when it turns out that the client does not have legal entitlement, which is the result of some circumstance or malfunctioning of the institution. In such cases, there are many indications that legal entitlement should be due to the client, but objectively is not due. However, the lawyer’s assessment is not moral in nature here, but in a way it results from the logic of the legal system. Wendel describes such situations as windfall cases.³³ This may give rise to a lawyer’s sense of dilemma that they should somehow help the client and fix any systemic errors. However, this would mean going beyond the legal entitlement of the client, and thus questioning fidelity to law. It would also mean going beyond the role of a lawyer. All the feelings and all discomfort of lawyers associated with such situations are important, but cannot influence their decisions if they are to remain faithful to their role. This importance will be the subject of reflection.

In the context of moral dilemmas, it is also worth mentioning the following view of the author. He formulates the assumption that attaching lawyers to the principle of zeal advocacy and focusing on the interests of their client may be related to the fact that this principle significantly simplifies the lawyer’s normative universe and allows all possible moral dilemmas to be solved

32 Ibidem, p. 71.

33 Ibidem, p. 73.

according to a simple criterion – always in favour of the client.³⁴ In this way, the value of legality is neglected and conflicts between various values that may appear here are overlooked. The author writes that:

Claiming to work as lawyer while simultaneously claiming no obligation of fidelity to law would be self-undermining. The role of lawyer, as distinct from other social roles (such as lobbyist, activist, or radical), is constituted by relationship between the role occupant and existing positive law.³⁵

It can therefore be said that not recognising legality as the basic value for the role of a lawyer is, in Wenedel’s view, a mistake that leads to a completely false understanding of this role and the inability to distinguish it from many other non-legal activities.

Regarding the Principle of Neutrality, i.e. the prohibition of assessing the client and the case and interfering in it due to one’s own convictions, the author claims that the reference to the values of legality and the rule of law gives rise to replacing this neutrality with fidelity to law. Therefore, he also excludes a lawyer’s pure moral ought, but such exclusion leaves no vacuum. Instead of moral assessments of the client and the manner of their conduct, the lawyer should be guided by legal assessments of the case. Moreover, Wendel claims that any conflicts and problems with lawyers’ decisions are more likely to result from the institution’s lack of legitimacy than the conflict between them and material justice. The issue of legitimisation of the law and the role of lawyers is presented by Wendel with the help of multi-layered argument. Generally speaking, this legitimisation takes place through the fact that “procedures of legal system constitute a means for living together, treating one another with respect, and cooperating toward common ends despite disagreement.” However, he rejects legitimisation of the deliberative democracy type and is content with the less ambitious goal that the legal system is to guarantee fair procedures. So, this is a more realistic and not an idealistic approach. Consequently, it confirms that legal ethics is part of political ethics.³⁶

The author also adopts the common sense assumption that his theory applies to a just society. In the case of societies affected by extreme injustice, completely different problems arise due to the total lack of legitimacy. However, as long as such legitimacy is provided, and the disagreement between citizens mainly concerns the application of general principles, “substantive injustice of law is not a basis for conscientiously objecting to the duty to respect the law.”³⁷ He stresses

34 Ibidem, p. 78.

35 Ibidem, p. 84.

36 Ibidem, pp. 87–95.

37 Ibidem, pp. 95–97.

it even more, pointing out elsewhere that “If it is not possible to interpret the law correctly to reach the just result, then it may be the case that the local injustice must be tolerated by lawyers even while it is resisted by citizens.”³⁸ The role of a lawyer based on fidelity to law clearly excludes consideration of moral reasons and includes a general requirement to respect the law. However, this is not a requirement of absolute obedience to the law. At this point, Wendel’s approach is clearly different from Raz’s. The law for the former is not simply an exclusionary reason, but only “very weighty reasons, which should be overridden only in extraordinary circumstances.”

The author uses a normative and not a conceptual argument here. He claims that the value of the law is that it allows for coexistence even when deliberation does not bring results because of disagreement between citizens, and should therefore be respected. It may, however, happen that disobedience to the law can be justified by strong reasons. It is crucial, however, that the role of a lawyer in relation to citizens is distinctive because the latter have more scope to disobey the law. This near-absolute duty of obedience to the law on the part of lawyers makes them closer to the role of a judge than their clients.³⁹

Finally, when it comes to the Principle of Nonaccountability, the author starts from a critical view that this principle can make lawyers the tools of doing evil and thus entangle them in a phenomenon known as the banality of evil. At the same time, however, he does not agree with the position that being guided by moral obligations, and not an institutionalised professional role, can solve this problem and prevent such entanglement. At the same time, he does not question the duality of the subject as a human being capable of moral evaluation and the subject as a performer of a role guided by professional norms.⁴⁰ What the legal ethics should focus on in the context of this dualism is the avoidance of the danger that the professional role will be like a hat one can put on and off and thus change the criteria for assessing one’s own actions. This would mean a  complete alienation of the lawyer from his role and a  serious threat of being caught up as a tool in causing evil. The author proposes to avoid this difficulty by the thesis he describes as incorporationist. He claims that every person performing a specific social role creates something that can be called a practical identity. This means adopting an internal point of view when the subject reflects on their actions. In the case of lawyers, this is a legal point of view. It is fundamental for formulating assessments and making decisions. What

38 Ibidem, p. 103.

39 Ibidem, pp. 114–122.

40 Ibidem, pp. 156–157.

is important, however, is that it does not preclude the possibility of looking at the same actions and decisions in purely moral terms.⁴¹

This is clearly visible in the problem of dirty hands. The author raises this issue by referring to the tradition of political ethics from T. Hobbs, N. Machiavelli and M. Weber. On such grounds, the role and mission of a true politician requires and legitimises deviations from pure moral obligations.

Actions taken in this way, however, can be evaluated from a moral perspective.

In other words, each action can be assessed from two perspectives, i.e. purely moral and political ethics, in which the legitimacy of certain institutions pointing to the performance evaluation criteria should be taken into account.

The divergence of assessments in both perspectives leaves the subject with dirty hands. Wendel writes about this as follows:

The “dirtiness” of the agent’s hands is a function of being able to evaluate an act form multiple perspectives – such as political and ordinary moral values, or agent-neutral and agent-relative considerations.⁴²

According to earlier arguments, legal ethics is part of political ethics, and lawyers are quasi-political agents. Consequently:

Paradoxically, a lawyer who seeks to have no authorship relationship whatsoever with wrongdoing also commits moral wrongdoing, only this time in respect of the political reasons for respecting a valuable social institution. If there are genuine moral obligations and genuine political obligations that require incompatible actions, there is no way to resolve this dilemma without doing wrong in virtue of one or the other evaluative domain.⁴³

In other words, the author uses the concept of dirty hands to show that fidelity to law does not remove moral agency. He uses the term quite broadly because he includes all suffering, guilt and regret caused by the divergence of assessments of one’s own actions from a  professional and moral perspective.

Hence, one can probably identify it simply with the subjective elements of a moral dilemma.

The duality of perspectives by which the subject evaluates their action explains what causes the sense of dirty hands in specific situations. It should be remembered, however, that the author assumes, in principle, the priority of the rules of performing a professional role and the near-absolute obligation to obey the law. This results from the fact that the whole concept of legal ethics is

41 Ibidem, pp. 161–162.

42 Ibidem, p. 170.

43 Ibidem, p. 171.

based on the concept of fidelity to law. It means, however, that possible moral dilemmas are resolvable in this view. The options of conduct associated with legal reasons prevail over possible options based on moral reasons. The same applies to institutionalised rules of a professional role, which exclude unique use of moral ought in the event of a collision. However, the question arises: what is the sense of dirty hands on the part of the lawyer in this case? Does it have any function that can be explained? Wendel argues that all kinds of moral conflicts and related dirty-hands phenomenon act as “moral remainders.” They are “non-action-guiding evaluative concepts” that perform two essential functions. First, they allow lawyers to develop a morally sensitive style of practice, and secondly, they lead to understanding the inadequacies of the binding law.⁴⁴

It can therefore be said that the function of moral remainders is to shape the reflexivity of both the subject and the whole practice. This statement is all the more important as it confirms the general thesis around which the considerations in this book concentrate, that in judicial ethics and legal ethics it is difficult to talk about undecidable moral conflicts, and thus about moral dilemmas.

However, prima facie dilemmas are present. The phenomenon of dirty hands, in Wendel’s view, confirms that the latter play a positive role. Even if the moral world of legal professions seems simplified, because institutions remove the existence of real moral dilemmas, it is not the case that these institutions relieve lawyers entirely of dilemmas. Moral life remains complex, but in a different way.

It might even be appropriate to say that this life is more complicated because of

It might even be appropriate to say that this life is more complicated because of