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Although they are both criticized in society, they actually own professional ethics.\",\"context\":\"The Lawyer as Friend: The Moral\\nFoundations of the Lawyer-Client Relation'\\nCharles Friedt\\nAdvocatus sed non ladro,\\nRes miranda \\npopulo ....\\nMedieval anthem\\nhonoring St. Ives\\nCan a good lawyer be a good person? The question troubles lawyers\\nand law students alike. They are troubled by the demands of \\nloyalty to\\none's client and by the fact that one can win approval as a good, maybe\\neven great, lawyer even though that loyalty is engrossed by over-\\nprivileged or positively distasteful clients. How, they ask, is such\\nloyalty compatible with that devotion to the common good character-\\nistic of high moral principles? And whatever their views of the com-\\nmon good, they are troubled because the willingness of lawyers to help\\ntheir clients use the law to the prejudice of the weak or the innocent\\nseems morally corrupt. The lawyer is conventionally seen as a pro-\\nfessional devoted to his client's interests and as authorized, if not in\\nfact required, to do some things (though not anything) for that client\\nwhich he would not do for himself.1 In this essay I consider the com-\\n* Copyright @ 1976 by Charles Fried. This essay is part of a larger work on right and\\nwrong, supported by the National Science Foundation under grant number SOC75-\\n13506. Research assistance and suggestions were provided by Dan Polster and Jerrold\\nTannenbaum, students at the Harvard Law School. I am grateful for the comments of\\nGary Bellow, Sissela Bok, Alan Dershowitz, Philip Heymann, Andrew Kaufman, Robert\\nKeeton, Thomas Nagel, Charles Nesson, Albert Sacks, and David Shapiro. I am especially\\ngrateful to the editors of the Yale Law Journal for their understanding, help, and\\nencouragement. I wonder if any of them agree with what I say here. The National\\nScience Foundation, of course, underwrites only the effort, not the conclusion.\\nt Professor of Law, Harvard University.\\n1. See, e.g., J. AUERBACH, UNEQUAL JUsTIcE (1976); M. GREEN, THE OTHER GOVERNIENT\\n(1975).\\nLord Brougham stated the traditional view of the lawyer's role during his defense of\\nQueen Caroline:\\n[Ain advocate, in the discharge of his duty, knows but one person in all the world,\\nand that person is his client. To save that client by all means and expedients, and at\\nall hazards and costs to other persons, and, among them, to himself, is his first and\\nonly duty; and in performing this duty he must not regard the alarm, the torments,\\nthe destruction which he may bring upon others. Separating the duty of a patriot\\nfrom that of an advocate, he must go on reckless of consequences, though it should\\nbe his unhappy fate to involve his country in confusion.\\n2 TRIAL OF QUEEN CAROLINE 8 (J. \\nNightingale ed. 1821). A sharply contrasting view was\\nheld by law professors at the University of Havana who said that \\\"the first job of a\\n1060\\n\\n\\nThe Lawyer as Friend\\npatibility between this traditional conception of the lawyer's role and\\nthe ideal of moral purity-the ideal that one's life should be lived in\\nfulfillment of the most demanding moral principles, and not just\\nbarely within the law. So I shall not be particularly concerned with\\nthe precise limits imposed on the lawyer's conduct by positive rules of\\nlaw and by the American Bar Association's Code of Professional\\nResponsibility2 except as these provide a background. I assume that\\nthe lawyer observes these scrupulously. My inquiry is one of morals:\\nDoes the lawyer whose conduct and choices are governed only by the\\ntraditional conception of the lawyer's role, which these positive rules\\nreflect, lead a professional life worthy of moral approbation, worthy of\\nrespect-ours and his own?\\nI. The Challenge to the Traditional Conception\\nA. The Two Criticisms\\nTwo frequent criticisms of the traditional conception of the lawyer's\\nrole attack both its ends and its means. First, it is said that the ideal of\\nprofessional loyalty to one's client permits, even demands, an alloca-\\ntion of the lawyer's time, passion, and resources in ways that are not\\nalways maximally conducive to the greatest good of the greatest num-\\nber.3 Interestingly, this criticism is leveled increasingly against doctors4\\nas well as lawyers. Both professions affirm the principle that the pro-\\nfessional's primary loyalty is to his client,\\n3 his patient. A \\\"good\\\" law-\\nyer will lavish energy and resources on his existing client, even if it\\ncan be shown that others could derive greater benefit from them. The\\nprofessional ideal authorizes a care for the client and the patient which\\nrevolutionary lawyer is not to argue that his client is innocent, but rather to determine\\nif his client is guilty and, if so, to seek the sanction which will best rehabilitate him.\\\"\\nBerman, The Cuban Popular Tribunals, 69 COLUM. \\nL. REv. 1317, 1341 (1969). And a\\nBulgarian attorney has been quoted as saying, \\\" \\n'In \\na Socialist state there is no division\\nof duty between the judge, prosecutor and defense counsel . . . the defense must assist\\nthe prosecution to find the objective truth in a case.' \\\" J. KAPLAN, CRIMINAL JusTICE:\\nINTRODUCTORY CASES AND MATERIALS 264-65 (1973).\\n2. The American Bar Association approved a revised Code of Professional Responsi-\\nbility in 1969. In part that revision was a response to the criticism that the legal pro-\\nfession, by failing to make legal services more widely available, had not met its public\\nresponsibilities. J. AUERBACH, supra note 1, \\nat 285-86. See also Preface, ABA CODE OF\\nPROFESSIONAL RESPONSIBILITY.\\n3. \\nSee M. GREEN, supra note 1, \\nat 268-69, 285-89.\\n4. See V. FUCHS, WHo \\nSHALL Lrv.? 60 (1974); Havighurst & Blumstein, Coping With\\nQuality/Cost Trade-Offs in Medical Care: The Role of PSROs, 70 NV. U. L. REV. 6,\\n25-28 (1975). But see Fried, Equality and Rights in Medical Care, 6 HASTINGS \\nCENTER\\nRErP. 29, 33-34 (1976).\\n5. \\nSee ABA CODE OF PROFESSIONAL RESPONSIBILITY CANON 7.\\n1061\\n\\n\\nThe Yale Law Journal\\nexceeds what the efficient distribution of a scarce social resource (the\\nprofessional's time) would dictate.\\nThat same professional ideal has little or nothing to say about the\\ninitial choice of clients or patients. Certainly it is laudable if the\\ndoctor and lawyer choose their clients among the poorest or sickest or\\nmost dramatically threatened, but the professional ideal does not re-\\nquire this kind of choice in any systematic way-the choice of client\\nremains largely a matter of fortuity or arbitrary choice. But once the\\nclient has been chosen, the professional ideal requires primary loyalty\\nto the client whatever his need or situation. Critics contend that it is\\nwasteful and immoral that some of the finest talent in the legal pro-\\nfession is devoted to the intricacies of, say, corporate finance or elab-\\norate estate plans, while important public and private needs for legaI\\nservices go unmet. The immorality of this waste is seen to be com-\\npounded when the clients who are the beneficiaries of this lavish at-\\ntention use it to avoid their obligations in justice (if not in law) to\\nsociety and to perpetuate their (legal) domination of the very groups\\nwhose greater needs these lawyers should be meeting.\\nThe second criticism applies particularly to the lawyer. It addresses\\nnot the misallocation of scarce resources, which the lawyer's exclusive\\nconcern with his client's interests permits, but the means which this\\nloyalty appears to authorize, tactics which procure advantages for the\\nclient at the direct expense of some identified opposing party. Ex-\\namples are discrediting a nervous but probably truthful complaining\\nwitness7 or taking advantage of the need or ignorance of an adversary\\nin a negotiation. This second criticism is, of course, related to the\\nfirst, but there is a difference. The first criticism focuses on a social\\nharm: the waste of scarce resources implicit in a doctor caring for the\\nhearts of the sedentary managerial classes or a lawyer tending to the\\nestates and marital difficulties of the rich. The professional is accused\\nof failing to confer benefits wisely and efficiently. By the second\\ncriticism the lawyer is accused not of failing to benefit the appro-\\npriate, though usually unidentified, persons, but of harming his\\nidentified adversary.8\\n6. For a description of the growth of such criticisms, see J. AUERBACH, supra note 1,\\nat 275-88.\\n7. \\nFor a defense of an attorney's use of such tactics, see M. FREEDMAN, \\nLAWYERS'\\nETHICS IN AN ADVERSARY SYSTEMi 43-49 (1975). See also Curtis, The Ethics of Advocacy, 4\\nSTAN. L. REV. 3 (1951).\\n8. The point really carries further than the distinction between benefit and harm.\\nIn the former case, though some particular person may have benefited had the distribu-\\ntion been efficient, it does not seem correct to say that for that reason this person had a\\nright to the benefit which he was denied, or that this person was wronged by not\\nreceiving the benefit. Individuals do not acquire rights under policies which are dictated\\n1062\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nB. Examples\\nConsider a number of cases which illustrate the first criticism: A\\ndoctor is said to owe a duty of loyalty to his patient, but how is he to\\nreact if doing his very best for his patient would deplete the resources\\nof the patient's family, as in the case of a severely deformed baby who\\ncan only be kept alive through extraordinarily expensive means?\\nShould a doctor prescribe every test of distinct but marginal utility\\nfor every patient on public assistance, even if he knows that in the\\naggregate such a policy will put the medical care system under in-\\ntolerable burdens?9 Should he subject his patients to prudent testing\\nof new remedies because he knows that only in this way can medicine\\nmake the strides that it has in the past?1\\n0\\nThese problems are analogous to problems which are faced by the\\nlawyer. The lawyer who advises a client how to avoid the effects of a\\ntax or a form of regulation, though it is a fair tax or a regulation in\\nthe public interest, is facing the same dilemma and resolving it in\\nfavor of his client. So does the public defender who accedes to his\\nclient's demands and takes a \\\"losing\\\" case to trial, thereby wasting\\ncourt time and depleting the limited resources of his organization. We\\npurely by considerations of efficiency. See generally Dworkin, Hard Cases, 88 HARV. L.\\nREV. 1057, 1058-78 (1975).\\nProfessor Anscombe makes the following suggestive argument: If saving the life of one\\npatient requires a massive dose of a drug that could be divided up and used to save five\\nother people, not one of those five can claim that he has been wronged, that the smaller\\ndose of the drug was owed to him.\\nYet all can reproach me if I gave it to none. It was there, ready to supply human\\nneed, and human need was not supplied. So any one of them can say: you ought\\nto have used it to help us who needed it; and so all are wronged. But if it was used\\nfor someone, as much as he needed it to keep him alive, no one has any ground for\\naccusing me of haiing wronged himself.-Why, just because he was one of five who\\ncould hate been saved, is he wronged in not being saved, if someone is supplied\\nwith it who needed it? What is his claim, except the claim that what was needed\\ngo to him rather than be wasted? But it was not wasted. So he was not wronged. So\\nwho was wronged? And if no one was wronged, what injury did I do?\\nI o \\nnot mean that 'because they are more' isn't a good reason for helping these\\nand not that one, or these rather than those. It is a perfectly intelligible reason, But\\nit doesn't follow from that that a man acts badly if lie doesn't make it his reason.\\nHe acts badly if human need for what is in his power to give doesn't work in him\\nas a reason. He acts badly if lie chooses to rescue rich people rather than poor\\nones, haing ill regard for the poor ones because they are poor. But lie doesn't act\\nbadly if lie uses his resources to save X, or X, Y and Z, for no bad reason, and is\\nnot affected by the consideration that he could save a larger number of people.\\nFor, once more: who can say he is wronged? And if no one is wronged, how does\\nthe rescuer commit any wrong?\\nAnscombe, Who is Wronged?, 5 OxFoRD REV. 16, 16-17 (1967) (emphasis in original).\\n9. See generally V. FUcHs, supra note 4, at 94-95; Fried, Rights and Health Care-\\nBeyond Equity and Efficiency, 293 NEw ENGLAND J. MEDICINE 241, 244 (1975).\\n10. For discussions of this dilemma, see A. COCHRANE, EFFECTIVENESS AND EFFICIENCY\\n(1972); C. FRIED, MEDICAL EXPERIMENTATION: PERSONAL INTEGRITY AND SOCIAL POLICY (1974).\\n1063\\n\\n\\nThe Yale Law Journal\\ntolerate and indeed may applaud the decision of a lawyer who vigor-\\nously defends a criminal whom he believes to be guilty and danger-\\nous.\\\" And I for one think that a lawyer who arranges the estate of a\\ndisagreeable dowager or represents one of the parties in a bitter mat-\\nrimonial dispute must be as assiduous and single-minded in fulfilling\\nhis obligation to that client as the lawyer who is defending the civil\\nliberties case of the century.\\nIllustrative of the second criticism (doing things which are offensive\\nto a particular person) are familiar situations such as the following: In\\na negotiation it becomes clear to the lawyer for the seller that the\\nbuyer and his lawyer mistakenly believe that somebody else has already\\noffered a handsome price for the property. The buyer asks the seller\\nif this is true, and the seller's lawyer hears his client give an ambiguous\\nbut clearly encouraging response. 12 Another classic case is the inter-\\nposition of a technical defense such as the running of the statute of\\nlimitations to defeat a debt that the client admits he owes.1 3\\nThere is another class of cases which does not so unambiguously in-\\nvolve the lawyer's furthering his client's interests at the direct expense\\nof some equally identified, concrete individual, but where furthering\\nthose interests does require the lawyer to do things which are person-\\nally offensive to him. The conventional paradigms in the casuistic\\nliterature deal with criminal defense lawyers who are asked improper\\nquestions by the trial judge (\\\"Your client doesn't have a criminal\\nrecord, does he?\\\" or \\\"Your client hasn't offered to plead guilty to a\\nlesser offense, has he?\\\"), a truthful answer to which would be damn-\\ningly prejudicial to the client, but which the lawyer cannot even\\nrefuse to answer without running the risk of creating the same prej-\\nudice. There are those who say the lawyer must lie in defense of his\\nclient's interests even though lying is personally and professionally of-\\nfensive to him.14 The defense lawyer who cross-examines a complaining\\nII. \\nSee M. FREDMAN, supra note 7, at 43-49.\\n12. \\nDR 7-102(A)(5) of the Code of Professional Responsibility states that a lawyer\\nshall not knowingly make a false statement of law or fact in his representation of a client.\\nThe issue is how to apply this admonition in the context of negotiation, where decep-\\ntion is commonplace. See M. MELTSNER & P. SCHPAG, PUBLIC INTEREST ADVOCACY: \\nlA.TERIALS\\nFOR CLINICAL LEGAL EDUCATION 231-39 (1974).\\n13. \\nFor a striking example, see Zabella v. Pakel, 242 F.2d 452 (7th Cir. 1957), where\\nthe debtor asserting the technical defenses was a savings and loan association president,\\nand the creditor was a man who had worked for him as a carpenter and had lent him\\nmoney in earlier, less fortunate days.\\n14. Although Charles Curtis explicitly denounces lying to the court, his observation\\nthat the propriety of lying might depend on whether the question is asked \\\"by someone\\nwho has a right to ask it\\\" at least implies a possible qualification in the case of improper\\nquestioning by the court. Curtis, supra note 7. at 7-9. Monroe Freedman does not\\nspecifically address this problem, but his argument that an attorney's duty to safeguard\\n1064\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nrape victim (whom he knows to be telling the truth) about her\\nchastity or lack thereof in order to discredit her accusing testimony\\nfaces a similar moral difficulty. In some respects these cases might be\\ntaken to illustrate both principal criticisms of the traditional concep-\\ntion. On the one hand, there is harm to society in making the choice\\nto favor the client's interests: a dangerous criminal may escape punish-\\nment or an appropriately heavy sentence. On the other hand, this\\nsocial harm is accomplished by means of acting towards another human\\nbeing-the judge, the complaining witness-in ways that seem demean-\\ning and dishonorable.\\nII. The Lawyer as Friend\\nA. \\nThe Thesis\\nIn this essay I will consider the moral status of the traditional con-\\nception of the professional. The two criticisms of this traditional con-\\nception, if left unanswered, will not put the lawyer in jail, but they\\nwill leave him without a moral basis for his acts. The real question is\\nwhether, in the face of these two criticisms, a decent and morally\\nsensitive person can conduct himself according to the traditional con-\\nception of professional loyalty and still believe that what he is doing is\\nmorally worthwhile.\\nIt might be said that anyone whose conscience is so tender that he\\ncannot fulfill the prescribed obligations of a professional should not\\nundertake those obligations. He should not allow his moral scruples\\nto operate as a trap for those who are told by the law that they may\\nexpect something more. But of course this suggestion merely pushes\\nthe inquiry back a step. We must ask then not how a decent lawyer\\nmay behave, but whether a decent, ethical person can ever be a lawyer.\\nAre the assurances implicit in assuming the role of lawyer such that\\nan honorable person would not give them and thus would not enter\\nthe profession? And, indeed, this is a general point about an argument\\nfrom obligation: 1\\n' It may be that the internal logic of a particular\\nobligation demands certain forms of conduct (e.g., honor among\\ntile attorney-client privilege requires the attorney to introduce his client's perjurious\\ntestimony would seem to extend to this situation. M. FREEDMAN, supra note 7, at 27-41.\\nCf. ABA Costt. ON PROFESSIONAL ETHICS, OPINIONS No. 287 (1967) (if attorney for de-\\nfendant learns of previous criminal record through his communications with his client,\\nlie has no duty to correct misapprehension on part of court that client has no record).\\n15. \\nThat one assumes obligations to persons which cannot always be overridden by\\nthe benefits which would accrue from aiding some third person is a standard objection\\nto utilitarianism. See, e.g., IV. Ross, THE RIGIIT AND THE GOOD 17-19 (1930).\\n1065\\n\\n\\nThe Yale Law Journal\\nthieves), but the question remains whether it is just and moral to\\ncontract such obligations.\\nI will argue in this essay that it is not only legally but also morally\\nright that a lawyer adopt as his dominant purpose the furthering of\\nhis client's interests-that it is right that a professional put the interests\\nof his client above some idea, however valid, of the collective interest.\\nI maintain that the traditional conception of the professional role\\nexpresses a morally valid conception of human conduct and human\\nrelationships, that one who acts according to that conception is to\\nthat extent a good person. Indeed, it is my view that, far from being\\na mere creature of positive law, the traditional conception is so far\\nmandated by moral right that any advanced legal system which did\\nnot sanction this conception would be unjust.\\nThe general problem raised by the two criticisms is this: How can\\nit be that it is not only permissible, but indeed morally right, to favor\\nthe interests of a particular person in a way which we can be fairly\\nsure is either harmful to another particular individual or not max-\\nimally conducive to the welfare of society as a whole? 6\\nThe resolution of this problem is aided, I think, if set in a larger per-\\nspective. Charles Curtis made the perspicacious remark that a lawyer\\nmay be privileged to lie for his client in a way that one might lie to\\nsave one's friends or close relatives.\\\"7 I do not want to underwrite the\\nnotion that it is justifiable to lie even in those situations, but there is a\\ngreat deal to the point that in those relations-friendship, kinship-we\\nrecognize an authorization to take the interests of particular concrete\\npersons more seriously and to give them priority over the interests of\\nthe wider collectivity. One who provides an expensive education for\\nhis own children surely cannot be blamed because he does not use\\nthese resources to alleviate famine or to save lives in some distant land.\\nNor does he blame himself. Indeed, our intuition that an individual\\nis authorized to prefer identified persons standing close to him over the\\nabstract interests of humanity finds its sharpest expression in our sense\\nthat an individual is entitled to act with something less than impar-\\ntiality to that person who stands closest to him-the person that he is.\\nThere is such a thing as selfishness to be sure, yet no reasonable\\n16. \\nI have discussed this problem elsewhere. C. FRIED, AN ANATOMY OF VALUES 207-36\\n(1970); C. FRIED, supra note 10, at 132-37. Cf. Schelling, The Life You Save May Be Your\\nOwn, in PROBLEMS IN PUBLIC EXPENDITURE ANALYSIS 127, 129-30 (S. Chase ed. 1968) (also\\ndiscussing our greater concern for known, as opposed to unknown, individuals).\\n17. \\nCurtis, supra note 7, at 8. Analogizing the lawyer to a friend raises a range of\\nproblems upon which I shall not touch. These have to do with the lawyer's benevolent\\nand sometimes not so benevolent tyranny over and imposition on his client, seemingly\\nauthorized by the claim to be acting in the client's interests. Domineering paternalism is\\nnot a normal characteristic of friendship. This point is due to Jay Katz.\\n1066\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nmorality asks us to look upon ourselves as merely plausible candidates\\nfor the distribution of the attention and resources which we command,\\nplausible candidates whose entitlement to our own concern is no\\ngreater in principle than that of any other human being. Such a doc-\\ntrine may seem edifying, but on reflection it strikes us as merely fanat-\\nical.\\nThis suggests an interesting way to look at the situation of the\\nlawyer. As a professional person one has a special care for the interests\\nof those accepted as clients, just as his friends, his family, and he him-\\nself have a very general claim to his special concern. But I concede\\nthis does no more than widen the problem. It merely shows that in\\nclaiming this authorization to have a special care for my clients I am\\ndoing something which I do in other contexts as well.\\nB. The Utilitarian \\nExplanation\\nI consider first an argument to account for fidelity to role, for\\nobligation, made most elaborately by the classical utilitarians, Mill' s\\nand Sidgwick.' 9 They argued that our propensity to prefer the interests\\nof those who are close to us is in fact perfectly reasonable because we\\nare more likely to be able to benefit those people. Thus, if everyone\\nis mainly concerned with those closest to him, the distribution of social\\nenergies will be most efficient and the greatest good of the greatest\\nnumber will be achieved. The idea is that the efforts I expend for my\\nfriend or my relative are more likely to be effective because I am more\\nlikely to know what needs to be done. I am more likely to be sure that\\nthe good I intend is in fact accomplished. One might say that there is\\nless overhead, fewer administrative costs, in benefiting those nearest\\nto us. I would not want to ridicule this argument, but it does not\\nseem to me to go far enough. Because if that were the sole basis for\\nthe preference, then it would be my duty to determine whether my\\nefforts might not be more efficiently spent on the collectivity, on the\\ndistant, anonymous beneficiary. But it is just my point that this is an\\ninquiry we are not required, indeed sometimes not even authorized,\\nto make. When we decide to care for our children, to assure our own\\ncomforts, to fulfill our obligations to our clients or patients, we do\\nnot do so as a result of a cost-benefit inquiry which takes into account\\nthe ease of producing a good result for our friends and relations.\\nMight it not be said, however, that the best means of favoring the\\n18. Mill, Utilitarianism, in THE PHILOSOPHY OF JOHN STUART MILL 321, 342-44 (M.\\nCohen ed. 1961).\\n19. H. SIDGIVIcK, THE METHODS OF ETHicS 252 (7th ed. 1907).\\n1067\\n\\n\\nThe Yale Law Journal\\nabstract collectivity is in certain cases not to try to favor it directly but\\nto concentrate on those to whom one has a special relation? This does\\nnot involve tricking oneself, but only recognizing the limitations of\\nwhat an individual can do and know. But that, it seems to me, is just\\nMill's and Sidgwick's argument all over again. There is no trickery\\ninvolved, but this is still a kind of deliberate limitation of our moral\\nhorizon which leaves us uncomfortable. Do I know in a particular case\\nwhether sticking to the narrow definition of my role will in that case\\nfurther the good of all? If I know that it will not further the general\\ngood, then why am I acting as the role demands? Is it to avoid setting\\na bad example? But for whom? I need not tell others-whether I tell or\\nnot could enter into my calculation. For myself then? But that begs\\nthe question, since if short-circuiting the role-definition of my obliga-\\ntion and going straight for the general good is the best thing 'to do in\\nthat case, then the example I set myself is not a bad example, but a\\ngood example. In short, I do not see how one can at the same time\\nadmit that the general good is one's only moral standard, while\\nsteadfastly hewing to obligations to friends, family, and clients. What\\nwe must look for is an argument which shows that giving some degree\\nof special consideration to myself, my friends, my clients is not merely\\ninstrumentally justified (as the utilitarians would argue) but to some\\ndegree intrinsically so. 2 0\\nI think such an argument can be made. Instead of speaking the\\nlanguage of maximization of value over all of humanity, it will speak\\nthe language of rights. The stubborn ethical datum affirming such a\\npreference grows out of the profoundest springs of morality: the con-\\ncepts of personality, identity, and liberty.\\nC. \\nSelf, Friendship, \\nand Justice\\nConsider for a moment the picture of the human person that would\\nemerge if the utilitarian claim were in fact correct. It would mean\\nthat in all my choices I must consider the well-being of all humanity-\\nactual and potential-as the range of my concern. Moreover, every\\nactual or potential human being is absolutely equal in his claims upon\\nme. Indeed, I myself am to myself only as one of this innumerable\\nmultitude. And that is the clue to what is wrong with the utilitarian\\nvision. Before there is morality there must be the person. We must\\nattain and maintain in our morality a concept of personality such that\\n20. \\nSee generally D. LYONS, FORMS AND LIMITS OF UTILITARIANISM (1965); J. SMART &\\nB. WILLIAMS, UTILITARIANISM: \\nFOR AND AGAINST (1973); Harrod, Utilitarianism Revised,\\n45 MIND 137 (1936); Mabbott, Punishment, 48 MIND 152 (1939).\\n1068\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nit makes sense to posit choosing, valuing entities-free, moral beings.\\nBut the picture of the moral universe in which my own interests dis-\\nappear and are merged into the interests of the totality of humanity is\\nincompatible with that,21 because one wishes to develop a conception\\nof a responsible, valuable, and valuing agent, and such an agent must\\nfirst of all be dear to himself. It is from the kernel of individuality\\nthat the other things we value radiate. The Gospel says we must\\nlove our neighbor as ourselves, and this implies that any concern for\\nothers which is a human concern must presuppose a concern for our-\\nselves.22 The human concern which we then show others is a concern\\nwhich first of all recognizes the concrete individuality of that other\\nperson just as we recognize our own.\\nIt might be objected that the picture I sketch does not show that\\neach individual, in order to maintain the integral sense of himself as\\nan individual, is justified in attributing a greater value to his most\\nessential interests than he ascribes to the most essential interests of all\\nother persons. Should not the individual generalize and attribute in\\nequal degree to all persons the value which he naturally attributes to\\nhimself? I agree with those who hold that it is the essence of morality\\nfor reason to push us beyond inclination to the fair conclusion of our\\n21. See generally C. FRIED, AN ANATOMY OF VALUES, 203-06; Rawls, The Independence\\nof Moral Theory, 48 AM. \\nPHIL. Ass'N 17-20 (1975) (Kantian theory, as compared to\\nutilitarianism, takes seriously basic moral fact of primacy of notion of individual\\npersonality).\\n22. \\n. . . It is written (Lev. xix. 18, Matth. xxii. 39); Thou shalt love thy neighbor\\n(Lev. loc. cit.,-friend) as thyself. Whence it seems to follow that man's love for\\nhimself is the model of his love for another. But the model exceeds the copy.\\nTherefore, out of charity, a man ought to love himself more than his neighbor.\\nW1,e must, therefore, say that, even as regards the affection we ought to love one\\nneighbor more than another. The reason is that, since the principle of love is God,\\nand the person who loves, it must needs be that the affection of love increases in\\nproportion to the nearness to one or the other of those principles.\\nAs stated above . . . we ought out of charity to love those who are more\\nclosely united to us more, both because our love for them is more intense, and be-\\ncause there are more reasons for loving them \\n...\\nAccordingly we must say that friendship among blood relations is based upon\\ntheir connection by natural origin, the friendship of fellow-citizens on their civic\\nfellowship, and the friendship of those who are fighting side by side on the com-\\nradeship of battle. Wherefore in matters pertaining to nature we should love our\\nkindred most, in matters concerning relations between citizens, we should prefer\\nour fellow-citizens, and on the battlefield our fellow-soldiers \\n...\\nIf however we compare union with union, it is evident that the union arising from\\nnatural origin is prior to, and more stable than, all others, because it is something\\naffecting the very substance, whereas other unions supervene and may cease al-\\ntogether.\\nII Tno.%ts \\nAQvINAS, SUMMA THEOLOGICA 1297-1301 (Fathers of the English Dominican\\nProvince trans. 1947).\\n1069\\n\\n\\nThe Yale Law Journal\\npremises.2 3 It is a fair conclusion that as my experience as a judging,\\nvaluing, choosing entity is crucial to me, I must also conclude that for\\nother persons their own lives and desires are the center of their\\nuniverses. If morality is transcendent, it must somehow transcend\\nparticularity to take account of this general fact. I do not wish to deny\\nthis. On the contrary, my claim is that the kind of preference which an\\nindividual gives himself and concrete others is a preference which he\\nwould in exactly this universalizing spirit allow others to exhibit as\\nwell. It is not that I callously overlook the claim of the abstract in-\\ndividual, but indeed I would understand and approve were I myself to\\nbe prejudiced because some person to whom I stood in a similar situa-\\ntion of abstraction preferred his own concrete dimensions.\\nFinally, the concreteness which is the starting point of my own\\nmoral sensibility, the sense of myself, is not just a historical, bio-\\ngraphical fact. It continues to enter into and condition my moral\\njudgments because the effects which I can produce upon people who\\nare close to me are qualitatively different from those produced upon\\nabstract, unknown persons. My own concreteness is important not\\nonly because it establishes a basis for understanding what I and what\\nall other human beings might be, but because in engaging that aspect\\nof myself with the concrete aspects of others, I realize special values\\nfor both of us. Quite simply, the individualized relations of love and\\nfriendship (and perhaps also their opposites, hatred and enmity)\\nhave a different, more intense aspect than do the cooler, more abstract\\nrelations of love and service to humanity in general. The impulse I\\ndescribe, therefore, is not in any sense a selfish impulse. But it does\\nbegin with the sense of self as a concrete entity. Those who object\\nto my thesis by saying that we must generalize it are not wholly\\nwrong; they merely exaggerate. Truly I must be ready to generalize\\noutward all the way. That is what justice consists of. But justice is\\nnot all of morality; there remains a circle of intensity which through\\nits emphasis on the particular and the concrete continues to reflect\\nwhat I have identified as the source of all sense of value-our sense of\\nself.\\nTherefore, it is not only consonant with, but also required by, an\\nethics for human beings that one be entitled first of all to reserve an\\narea of concern for oneself and then to move out freely from that area\\nif one wishes to lavish that concern on others to whom one stands in\\nconcrete, personal relations. Similarly, a person is entitled to enjoy\\n23. \\nSee G. WARNOCK, TiE OBJECT OF MORALITY 79-80 (1971); Nagel, Book Review, 85\\nYALE L.J. 136, 140 (1975).\\n1070\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nthis extra measure of care from those who choose to bestow it upon\\nhim without having to justify this grace as either just or efficient. We\\nmay choose the individuals to whom we will stand in this special rela-\\ntion, or they may be thrust upon us, as in family ties. Perhaps we\\nrecognize family ties because, after all, there often has been an element\\nof choice, but also because-by some kind of atavism or superstition-\\nwe identify with those who share a part of our biological natures.\\nIn explicating the lawyer's relation to his client, my analogy shall be\\nto friendship, where the freedom to choose and to be chosen expresses\\nour freedom to hold something of ourselves in reserve, in reserve even\\nfrom the universalizing claims of morality. These personal ties and\\nthe claims they engender may be all-consuming, as with a close friend\\nor family member, or they may be limited, special-purpose claims, as\\nin the case of the client or patient.24 The special-purpose claim is one\\nin which the beneficiary, the client, is entitled to all the special con-\\nsideration within the limits of the relationship which we accord to a\\nfriend or a loved one. It is not that the claims of the client are less\\nintense or demanding; they are only more limited in their scope. After\\nall, the ordinary concept of friendship provides only an analogy, and\\nit is to the development of that analogy that I turn.\\nD. \\nSpecial-Purpose \\nFriends\\nHow does a professional fit into the concept of personal relations at\\nall? He is, I have suggested, a limited-purpose friend. A lawyer is a\\nfriend in regard to the legal system. He is someone who enters into a\\npersonal relation with you-not an abstract relation as under the\\nconcept of justice. That means that like a friend he acts in your in-\\nterests, not his own; or rather he adopts your interests as his own. I\\nwould call that the classic definition of friendship. To be sure, the\\nlawyer's range of concern is sharply limited. But within that limited\\n24. This argument is, of course, just a fragment which must be fitted into a larger\\ntheory. This larger theory would have to explain, among other things, what the precise\\ncontents of the various personal roles might be and how conflicts between personal roles\\nare to be resolved. My later discussion of permissible and impermissible tactics in legal\\nrepresentation deals with this conflict in one context. A complete theory would also\\nhave to spell out the relation between personal roles and duties to the larger collectivity.\\nThese latter duties to man in the abstract as opposed to concrete persons are the subject\\nof principles of justice. I have no doubt that such abstract duties exist and that they\\ncan be very demanding. Roughly, I would adopt something like the principles put forward\\nin J. RtWLs, A THEORY OF JusTicE 54-117 (1971). I would require, however, that these\\nprinciples of justice leave sufficient scope for the free definition and inviolability of\\npersonal relations-to a greater extent perhaps than Rawls allows. These systematic\\nconcerns are the subject of a larger work from which the present essay is drawn. The\\nrelation of principles of justice to other aspects of right and wrong is a principal\\nconcern of that larger work.\\n1071\\n\\n\\nThe Yale Law Journal\\ndomain the intensity of identification with the client's interests is the\\nsame. It is not the specialized focus of the relationship which may make\\nthe metaphor inapposite, but the way in which the relation of legal\\nfriendship comes about and the one-sided nature of the ensuing\\n\\\"friendship.\\\" But I do insist upon the analogy, for in overcoming the\\narguments that the analogy is false, I think the true moral foundations\\nof the lawyer's special role are illuminated and the utilitarian objec-\\ntions to the traditional conception of that role overthrown.\\n1. The Professional \\nRole as Socially Defined:\\nThe Content of the Relation\\nThe claims that are made on the doctor or lawyer are made within\\na social context and are defined, at least in part, by social expecta-\\ntions. Most strikingly, in talking about friendship the focus of the\\ninquiry is quite naturally upon the free gift of the donor; yet in pro-\\nfessional relationships it is the recipient's need for medical or legal\\naid which defines the relationship. So the source of the relationship\\nseems to be located at the other end, that of the recipient. To put this\\ndisquiet another way, we might ask how recognizing the special claims\\nof friendship in any way compels society to allow the doctor or the\\nlawyer to define his role on the analogy of those claims. Why are these\\npeople not like other social actors designated to purvey certain, per-\\nhaps necessary, goods? Would we say that one's grocer, tailor, or land-\\nlord should be viewed as a limited-purpose friend? Special considera-\\ntions must be brought forward for doctors and lawyers.2\\nA special argument is at hand in both cases. The doctor does not\\nminister just to any need, but to health. He helps maintain the very\\nphysical integrity which is the concrete substrate of individuality. To\\nbe sure, so does a grocer or landlord. But illness wears a special\\nguise: it appears as a critical assault on one's person. The needs to\\nwhich the doctor ministers usually are implicated in crises going to\\none's concreteness and individuality, and therefore what one looks for\\nis a kind of ministration which is particularly concrete, personal, in-\\ndividualized. Thus, it is not difficult to see why I claim that a doctor\\nis a friend, though a special purpose friend, the purpose being defined\\nby the special needs of illness and crisis to which he tends.\\n25. This question might be more troubling in a socialist system in which the profit\\nmotive is theoretically subordinated to the service of the general good. But my argument\\nis that the needs for whith lawyers and doctors provide are significantly different in kind\\nfrom those met by other economic agents. Therefore, my argument about doctors and\\nlawyers should be general enough to apply in either a free enterprise or a socialist\\nsystem.\\n1072\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nBut what, then, of the lawyer? Friendship and kinship are natural\\nrelations existing within, but not defined by, complex social institu-\\ntions. Illness too is more a natural than social phenomenon. The\\nresponse here requires an additional step. True, the special situations\\n-legal relations or disputes-in which the lawyer acts as a limited-\\npurpose friend are themselves a product of social institutions. But it\\ndoes not follow that the role of the lawyer, which is created to help us\\ndeal with those social institutions, is defined by and is wholly at the\\nmercy of the social good. We need only concede that at the very least\\nthe law must leave us a measure of autonomy, whether or not it is in\\nthe social interest to do so. Individuals have rights over and against\\nthe collectivity.26 The moral capital arising out of individuals' con-\\ncrete situations is one way of expressing that structure of rights, or at\\nleast part of it. It is because the law must respect the rights of in-\\ndividuals that the law must also create and support the specific role of\\nlegal friend. For the social nexus-the web of perhaps entirely just\\ninstitutions-has become so complex that without the assistance of an\\nexpert adviser an ordinary layman cannot exercise that autonomy\\nwhich the system must allow him. Without such an adviser, the law\\nwould impose constraints on the lay citizen (unequally at that) which\\nit is not entitled to impose explicitly. Thus, the need which the\\nlawyer serves in his special-purpose friendship may not be, as in the\\ncase of the doctor, natural, pre-social. Yet it is a need which has a\\nmoral grounding analogous to the need which the physician serves: the\\nneed to maintain one's integrity as a person. When I say the lawyer\\nis his client's legal friend, I mean the lawyer makes his client's in-\\nterests his own insofar as this is necessary to preserve and foster the\\nclient's autonomy within the law. This argument does not require us\\nto assume that the law is hostile to the client's rights. All we need to\\nassume is that even a system of law which is perfectly sensitive to\\npersonal rights would not work fairly unless the client could claim a\\nprofessional's assistance in realizing that autonomy which the law\\nrecognizes.\\n2. \\nThe Asymmetry of Motive and Duty:\\nThe Form of the Relation\\nThe institutional origin of the lawyer-client relationship is not its\\nonly characteristic which suggests that the analogy to natural friendship\\n26. \\nFor a recent forceful statement of this conception of rights, see Dworkin, Taking\\nRights Seriously, in Is LAw DEAD? 168 (E. Rostow ed. 1971). See generally Dworkin, The\\nOriginal \\nPosition, 40 U. CH. L. REV. 500, 522-28 (1973).\\n1073\\n\\n\\nThe Yale Law Journal\\nis vulnerable. In natural friendship the ideal relation is reciprocal; in\\nlegal friendship it is not. The lawyer is said to be the client's friend\\ninsofar as he is devoted to his client's interests, but it is no part of the\\nideal that the client should have any reciprocal devotion to the in-\\nterests of his lawyer. Furthermore, I have argued that our right to be\\na friend to whomever we choose is a product of our individual au-\\ntonomy. But in legal friendship the emphasis has been on the au-\\ntonomy of the client, and it is the client who chooses the lawyer;2 7 yet\\nit is the lawyer who acts as a friend in the relation. And as a final\\ncontrast to natural friendship, the usual motive for agreeing or re-\\nfusing to provide legal services is money. Indeed, when we speak of\\nthe lawyer's right to represent whomever he wishes, we are usually\\ndefending his moral title to represent whoever pays.\\nBut recall that the concept of legal friendship was introduced to\\nanswer the argument that the lawyer is morally reprehensible to the\\nextent that he lavishes undue concern on some particular person. The\\nconcept of friendship explains how it can be that a particular person\\nmay rightfully receive more than his share of care from another: he\\ncan receive that care if he receives it as an act of friendship. Although\\nin natural friendship I emphasized the freedom to bestow, surely that\\nfreedom must imply a freedom to receive that extra measure of care.\\nAnd it is the right of the client to receive such an extra measure of\\ncare (without regard, that is, to considerations of efficiency or fair-\\nness) as much as the lawyer's right to give it, that I have been trying\\nto explicate. Thus, the fact that the care in legal friendship system-\\natically runs all one way does not impair the argument.\\nYet the unease persists. Is it that while I have shown that the lawyer\\nhas a right to help the \\\"unworthy\\\" client, I have not shown that when-\\never the lawyer exercises this right he does something which is morally\\nworthy, entitling him to self-respect? I may have shown that the law is\\nobliged to allow the \\\"unworthy\\\" client to seek legal help and the\\nlawyer to give it. But have I also shown that every lawyer who avails\\nhimself of this legal right (his and the client's legal right) performs a\\nmorally worthy function? Can a good lawyer be a good person?\\nThe lawyer acts morally because he helps to preserve and express the\\nautonomy of his client vis-h-vis the legal system. It is not just that the\\nlawyer helps his client accomplish a particular lawful purpose. Pornog-\\nraphy may be legal, but it hardly follows that I perform a morally\\n27. The lawyer is generally free to decline to serve for any or no reason. But evcn\\nthat freedom is qualified; there will be times when there may be a duty to serve, as\\nwhen a court appoints the lawyer to serve or when his declining may leave a person\\nunrepresented. See pp. 1078-79, 1086-87 infra.\\n1074\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nworthy function if I lend money or artistic talent to help the pornog-\\nrapher flourish in the exercise of this right. What is special about legal\\ncounsel is that whatever else may stop the pornographer's enterprise,\\nhe should not be stopped because he mistakenly believes there is a\\nlegal impediment. There is no wrong if a venture fails for lack of\\ntalent or lack of money-no one's rights have been violated. But rights\\nare violated if, through ignorance or misinformation about the law,\\nan individual refrains from pursuing a wholly lawful purpose. There-\\nfore, to assist others in understanding and realizing their legal rights\\nis always morally, worthy. Moreover, the legal system, by instituting\\nthe role of the legal friend, not only assures what it in justice\\nmust-the due liberty of each citizen before the law-but does it by\\ncreating an institution which exemplifies, at least in a unilateral\\nsense, the ideal of personal relations of trust and personal care which\\n(as in natural friendship) are good in themselves.\\nPerhaps the unease has another source. The lawyer does work for\\npay. Is there not something odd about analogizing the lawyer's role\\nto friendship when in fact his so-called friendship must usually be\\nbought? If the lawyer is a public purveyor of goods, is not the lawyer-\\nclient relationship like that underlying any commercial transaction?\\nMy answer is \\\"No.\\\" The lawyer and doctor have obligations to the\\nclient or patient beyond those of other economic agents. A grocer may\\nrefuse to give food to a customer when it becomes apparent that the\\ncustomer does not have the money to pay for it. But the lawyer and\\ndoctor may not refuse to give additional care to an individual who can-\\nnot pay for it if withdrawal of their services would prejudice that in-\\ndividual.\\n2 s Their duty to the client or patient to whom they have made\\nan initial commitment transcends the conventional quid pro quo of the\\nmarketplace. It is undeniable that money is usually what cements the\\nlawyer-client relationship. But the content of the relation is determined\\nby the client's needs, just as friendship is a response to another's needs.\\nIt is not determined, as are simple economic relationships, by the mere\\ncoincidence of a willingness to sell and a willingness to buy. So the\\nfact that the lawyer works for pay does not seriously undermine the\\nfriendship analogy.\\n3. \\nInstitutional \\nClients\\nAnother possible objection to my analysis concerns the lawyer in\\ngovernment or the lawyer for a corporation. My model posits a duty\\n28. See ABA CoMm. ON PROFESSIONAL ETHICS, OPINIONS 56 (1967) (Informal Opinion\\nNo. 334); ABA CODE OF PROFESSIONAL RESPONSIBILITY EC 2-31, 2-32. Compare id. DR 2-110\\n(C)(l)(f) with id. DR 2-110(A)(2).\\n1075\\n\\n\\nThe Yale Law Journal\\nof exclusive concern (within the law) for the interests of the client.\\nThis might be said to be inappropriate in the corporate area because\\nlarger economic power entails larger social obligations, and because\\nthe idea of friendship, even legal friendship, seems peculiarly far-\\nfetched in such an impersonal context. After all, corporations and other\\ninstitutions, unlike persons, are creatures of the state. Thus, the pur-\\nsuit of their interests would seem to be especially subject to the claims\\nof the public good. But corporations and other institutions are only\\nformal arrangements of real persons pursuing their real interests. If\\nthe law allows real persons to pursue their interests in these complex\\nforms, then why are they not entitled to loyal legal assistance, \\\"legal\\nfriendship,\\\" in this exercise of their autonomy just as much as if they\\npursued their interests in simple arrangements and associations?\\nThe real problem in these cases is that the definition of the client is\\ncomplicated and elusive. The fundamental concepts remain the same,\\nbut we must answer a question which so far we could treat as straight-\\nforward: Who is the client? It is the corporation. But because the\\ncorporation is an institutional entity, institutional considerations enter\\ninto both the definition of the entity to whom the loyalty is owed and\\nthe substance of that loyalty. This is dramatically so in the case of a\\ngovernment lawyer, since his client might be thought to be the\\ngovernment of the United States, or the people of the United States,\\nmediated by an intricate political and institutional framework. So it\\nis said that a United States attorney is interested (unlike an ordinary\\nlawyer) not only in winning his case but also in seeing that \\\"justice is\\ndone,\\\" because his client's interests are served only if justice is done.\\nSince more and more lawyers have only institutional clients, the\\nintroduction of institutional concerns into the definition of the repre-\\nsentational obligation is virtually pervasive. From this some would\\nconclude that my argument is inappropriate or at least anachronistic.\\nI insist that my analogy is the correct one, that it is applicable to the\\ninstitutional client, but that it must be combined in a complicated\\nthough wholly coherent way with other arguments about who one's\\nclient is and how that client's interests are to be identified.\\nIII. The Two Criticisms and the Friendship Analogy\\nA. \\nThe Choice of Clients: The Question of Distribution\\nIt is time to apply the concept of legal friendship to the first of the\\ntwo criticisms with which this essay began: that the lawyer's ethic of\\nloyalty to his client and his willingness to pick clients for any and\\nevery reason (usually, however, for money) result in a maldistribution\\n1076\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nof a scarce resource, the aid of counsel. It is this criticism which the\\nlawyer shares with the doctor. The preceding sections demonstrated at\\nleast this much: that legal counsel-like medical care-must be con-\\nsidered a good, and that he who provides it does a useful thing. But\\nthis first criticism in no way questions that conclusion. On the con-\\ntrary, precisely because medical care and legal counsel are benefits to\\nthose who receive them, the critic blames the individual doctor or\\nlawyer for not bestowing his skills in the way which best meets the\\nsocial need. The notion of legal friendship helps us respond to this\\ncriticism.\\nThe lawyer-client relation is a personal relation, and legal counsel\\nis a personal service. This explains directly why, once the relation has\\nbeen contracted, considerations of efficiency or fair distribution can-\\nnot be allowed to weaken it. The relation itself is not a creature of\\nsocial expediency (though social circumstances provide the occasion\\nfor it); it is the creature of moral right, and therefore expediency may\\nnot compromise the nature of the relation. This is true in medicine\\nbecause the human need creates a relation of dependence which it\\nwould be a betrayal to compromise. In the lawyer-client relation, the\\nargument is more complex but supports the same conclusion. The\\nrelation must exist in order to realize the client's rights against society,\\nto preserve that measure of autonomy which social regulation must\\nallow the individual. But to allow social considerations-even social\\nregulations-to limit and compromise what by hypothesis is an entail-\\nment of the original grant of right to the individual is to take away\\nwith the left hand what was given with the right. Once the relation\\nhas been taken up, it is the client's needs which hold the reins-\\nlegally and morally.\\nIf I have a client with legal needs, then neither another person with\\ngreater needs nor a court should be able to compel or morally oblige\\nme to compromise my care for those needs. To hold differently would\\napply the concept of battlefield emergency care (triage) to the area of\\nregular legal service. But doctors do not operate that way and neither\\nshould lawyers. For it is just the point about emergencies and wars\\nthat they create special, brutal, and depersonalized relations which\\ncivilization, by its very essence, must keep from becoming the general\\nrule of social life.2-\\nSo much for the integrity of the relation once it has taken hold. But\\nwhat of the initial choice of client? Must we not give some thought to\\nefficiency and relative need at least at the outset, and does this not\\n29. \\nFried, supra note 9, at 245.\\n1077\\n\\n\\nThe Yale Law Journal\\nrun counter to the picture of purely discretionary choice implicit in\\nthe notion of friendship? The question is difficult, but before con-\\nsidering its difficulties we should note that the preceding argumenta-\\ntion has surely limited its impact. We can now affirm that whatever\\nthe answer to this question, the individual lawyer does a morally\\nworthy thing whomever he serves and, moreover, is bound to follow\\nthrough once he has begun to serve. In this he is like the doctor. So\\nif there is fault here it is a limited fault. What would be required for\\na lawyer to immunize himself more fully from criticism that he is un-\\njust in his allocati6n of care? Each lawyer would have to consider at\\nthe outset of his career and during that career where the greatest\\nneed for his particular legal talents lies. He would then have to\\nallocate himself to that area of greatest need. Surely there is nothing\\nwrong in doing this (so long as loyalty to relations already undertaken\\nis not compromised); but is a lawyer morally at fault if he does not\\nlead his life in this way? It is at this point too that the metaphor of\\nfriendship and the concept of self as developed above suggest the\\nresponse. But this time they will be viewed from another perspective-\\nthe lawyer's as opposed to the client's rights and liberties.\\nMust the lawyer expend his efforts where they will do the most good,\\nrather than where they will draw the largest fee, provide the most\\nexcitement, prove most flattering to his vanity, whatever? Why must\\nhe? If the answer is that he must because it will produce the most good,\\nthen we are saying to the lawyer that he is merely a scarce resource.\\nBut a person is not a resource. He is not bound to lead his life as if he\\nwere managing a business on behalf of an impersonal body of stock-\\nholders called human society. It is this monstrous conception against\\nwhich I argued earlier. Justice is not all; we are entitled to reserve a\\nportion of our concern and bestow it where we will. We may bestow it\\nentirely at our discretion as in the case of friendship, or we may bestow\\nit at what I would call \\\"constrained discretion\\\" in the choice and\\nexercise of a profession. That every.exercise of the profession is morally\\nworthwhile is already a great deal to the lawyer's credit. Just as the\\nprinciple of liberty leaves one morally free to choose a profession\\naccording to inclination, so within the profession it leaves one free\\nto organize his life according to inclination. The lawyer's liberty-\\nmoral liberty-to take up what kind of practice he chooses and to\\ntake up or decline what clients he will is an aspect of the moral\\nliberty of self to enter into personal relations freely.\\nI would not carry this idea through to the bitter end. It has always\\nbeen accepted, for instance, that a court may appoint an available\\nlawyer to represent a criminal defendant who cannot otherwise find\\n1078\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\ncounsel. Indeed, I would be happy to acknowledge the existence of\\nsome moral duty to represent any client whose needs fit one's par-\\nticular capacities and who cannot otherwise find counsel. This is\\nnot a large qualification to the general liberty I proclaim. The obliga-\\ntion is, and must remain, exceptional; it cannot become a kind of\\ngeneral conscription of the particular lawyer involved. And the\\nobligation cannot compromise duties to existing clients. Furthermore,\\nI would argue that this kind of representation should always be com-\\npensated-the duty to the client who cannot afford representation is\\ninitially a duty of society, not of the individual lawyer. I go this far for\\na number of reasons. If the representation is properly compensated,\\nthen the very need to appoint a lawyer will be exceptional, an anomaly\\narising in one of two ways: a fortuitous perturbation in the law of\\nsupply and demand or a general, if not concerted, professional boycott\\nof this particular client. If the first is the reason, then the lifetime\\nimposition on any one lawyer will be slight indeed. If it is the second,\\nthen the assertion of a duty, oddly enough, serves to express and\\nstrengthen the principle of the lawyer's independence. For the moral\\nposition of the lawyer rests on the claim that he takes up his client's\\ninterests irrespective of their merits.3 0 By accepting from time to time\\nthe duty to represent the undesirable, he affirms this independence.\\nBut surely I must admit that the need for legal representation far\\nexceeds what such an unstructured, largely individualistic system could\\nsupply. Are there not vast numbers of needy people with a variety of\\nlegal problems who will never seek us out, but must be sought out?\\nAnd what of the general responsibility that just laws be passed and\\njustly administered? These are the obligations which the traditional\\nconception of the lawyer, with his overriding loyalty to the paying\\nclient, is thought to leave unmet. At this point I yield no further. If\\nthe lawyer is really to be impressed to serve these admitted social\\nneeds, then his independence and discretion disappear, and he does\\nindeed become a public resource cut up and disposed of by the public's\\nneeds. There would be no justice to such a conception. If there are\\nreally not enough lawyers to care for the needs of the poor, then it is\\ngrossly unfair to conscript the legal profession to fill those needs. If the\\n30. Carried further, this argument would hold that, as to clients who are within his\\narea of competence, are able to pay his fee, and create no conflict with existing clients,\\na doctor or lawyer is perfectly justified in taking whoever happens to be next in the\\nqueue in his waiting room. Places in the queue may be determined by luck, the price\\nsystem, or even some bureaucratic method of assignment. The doctor or lawyer does no\\nwrong if he chooses not to concern himself with how the queue was formed. For a more\\ndetailed discussion of the moral significance of queuing, see C. FRIED, supra note 10, at\\n132-37.\\n1079\\n\\n\\nThe Yale Law Journal\\nobligation is one of justice, it is an obligation of society as a whole. It\\nis cheap and hypocritical for society to be unwilling to pay the neces-\\nsary lawyers from the tax revenues of all, and then to claim that in-\\ndividual lawyers are morally at fault for not choosing to work for free.\\nIn fact, as provision of legal services has come to be seen as necessary\\nto ensure justice, society has indeed hired lawyers in an effort to meet\\nthat need.\\nFinally, I agree that the lawyer has a moral obligation to work for\\nthe establishment of just institutions generally, but entirely the wrong\\nkind of conclusions have been drawn from this. Some of the more\\necstatic critics have put forward the lawyer as some kind of anointed\\npriest of justice-a high priest whose cleaving to the traditional con-\\nception of the lawyer's role opens him to the charge of apostasy.3' But\\nthis is wrong. In a democratic society, justice has no anointed priests.\\nEvery citizen has the same duty to work for the establishment of just\\ninstitutions,32 and the lawyer has no special moral responsibilities in\\nthat regard. To be sure, the lawyer like any citizen must use all his\\nknowledge and talent to fulfill that general duty of citizenship, and\\nthis may mean that there are special perspectives and opportunities for\\nhim.33\\nB. The Choice of Means\\nMore difficult problems are posed by the conflict between the in-\\nterests of the client and the interests of some other concrete and\\nspecified person to whom the client stands in opposition. How does my\\nfriendship analogy help to resolve the conflict which a lawyer must\\nfeel if his client asks him to lie, to oppress, or to conceal-to do some-\\nthing which is either illegal or felt by the lawyer to be immoral?\\n1. Staying Within the Law\\nI have defined the lawyer as a client's legal friend, as the person\\nwhose role it is to insure the client's autonomy within the law. Al-\\nthough I have indicated that the exercise of that autonomy is not\\nalways consonant with the public interest, it does not at all follow that\\nthe exercise of that autonomy, therefore, must also violate the law.\\nIf the legal system is itself sensitive to moral claims, sensitive to the\\nrights of individuals, it must at times allow that autonomy to be\\nexercised in ways that do not further the public interest. Thus, the\\n31. \\nSee, e.g., M. GREEN, supra note 1, at 268-72.\\n32. \\nSee J. RAwis, supra \\nnote 24, at 333-91.\\n33. \\nSee ABA CODE OF PROFESSIONAL RESPONSIBILITY Canon 8.\\n1080\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nprinciple that the lawyer must scrupulously contain his assistance and\\nadvocacy within the dictates of the law seems to me perfectly consistent\\nwith my view of the lawyer as the client's friend, who maintains the\\nclient's interests even against the interests of society.\\nTo be sure, there may have been and may still be situations where\\nthe law grossly violates what morality defines as individual rights; and\\nthere have been lawyers who have stood ready to defy such laws in\\norder to further their client's rights-the rights which the law should,\\nbut did not, recognize. Whatever might be said about those cases, the\\nlawyer's conduct in them travels outside the bounds of legal friendship\\nand becomes political friendship, political agitation, or friendship\\ntout court. But that is not the case I am examining. The moral claims\\nwhich a client has on his lawyer can be fully exhausted though that\\nlawyer contains his advocacy strictly within the limits of the law.\\nA critic who fails to see the importance of the lawyer's moral status\\nin assisting the autonomy of his client, may also be inclined to com-\\nplain that the constraints of the law restrain his advocacy of truly just\\ncauses too much. Such a critic has things wrong at both ends. Just\\nas it is false to argue that the lawyer is morally reprehensible if he\\nfurthers the interests of some clients and not others or some purposes\\nand not others, so it is false to assume that the lawyer fails to have the\\nproper zeal if he does for his client only what the law allows. The\\ndistinction between the role of the lawyer as a personal adviser and that\\nof the lawyer as a citizen and member of the community should be\\nquite clear. It is by controlling what the law is and by varying the inter-\\nests that clients may lawfully pursue that social policy should be ef-\\nfectuated; it is not by deforming the role of the lawyer as the client's\\nlegal friend and asking him to curb his advocacy in that relationship.\\nThis explains why in a reasonably just system which properly com-\\nmands the lawyer's loyalty, he must confine his advocacy to what the\\nrules of advocacy permit. He may not counsel his client to commit a\\ncrime, nor to destroy evidence, nor to perjure himself on the witness\\nstand. Of course, here as elsewhere there will be borderline problems.\\nIt may not be a crime to lie to the judge who has asked the improper\\nand prejudicial question of the defense attorney, but the implicit or\\nquasi-official rules defining the limits of the lawyer's advocacy may\\nnonetheless forbid this. Nothing in my model should discourage the\\nlawyer from observing such limits scrupulously.\\nA very difficult question would arise if the law imposed upon the\\nlawyer an obligation first to seek and then to betray his client's trust,\\nan obligation to do that which seems outrageous and unjust. I do not\\nmean to say that the resolution of this question would be easy, but my\\n1081\\n\\n\\nThe Yale Law Journal\\nanalysis at least clearly locates the area in which a resolution should\\nbe sought. For such laws, if they are to be opposed, ought to be op-\\nposed as are other unjust laws, and not because the lawyer is in gen-\\neral entitled to travel outside the constraints of the law in protecting\\nhis client's interests. Maybe in such a dilemma a conscientious lawyer\\nwould keep his client's confidence as would a priest or a natural\\nfriend; but if conscientiousness requires this, it requires it as an act of\\ndisobedience and resistance to an unjust law, rather than as a necessary\\nentailment of some extreme view of the lawyer's general role.\\n2. \\nImmoral Means\\nI come to what seems to me one of the most difficult dilemmas of the\\nlawyer's role. It is illustrated by the lawyer who is asked to press the\\nunfair claim, to humiliate a witness, to participate in a distasteful or\\ndishonorable scheme. I am assuming that in none of these situations\\ndoes the lawyer do anything which is illegal or which violates the\\nethical canons of his profession; the dilemma arises if he acts in a way\\nwhich seems to him personally dishonorable, but there are no sanc-\\ntions-legal or professional-which he need fear.\\nThis set of issues is difficult because it calls on the same principles\\nwhich provide the justification for the lawyer's or the friend's exertions\\non behalf of the person with whom he maintains a personal relation.\\nOnly now the personal relation is one not of benefit but of harm. In\\nmeeting the first criticism, I was able to insist on the right of the\\nlawyer as friend to give this extra weight to the interests of his client\\nwhen the only competing claims were the general claims of the abstract\\ncollectivity. But here we have a specific victim as well as a specific\\nbeneficiary. The relation to the person whom we deceive or abuse is\\njust as concrete and human, just as personal, as to the friend whom\\nwe help.\\nIt is not open to us to justify this kind of harm by claiming that\\npersonal relations must be chosen, not thrust upon us. Personal rela-\\ntions are indeed typically chosen. If mere proximity could place on us\\nthe obligations of friendship, then there would soon be nothing left\\nof our freedom to bestow an extra measure of care over and above what\\nhumanity can justly claim. But there is a personal relation when we\\ninflict intentional harm; the fact that it is intentional reaches out and\\nparticularizes the victim. \\\"Who is my neighbor?\\\" is a legitimate\\nquestion when affirmative aid is in question; it is quite out of order\\nin respect to the injunction \\\"Do not harm your neighbor.\\\" Lying,\\nstealing, degrading, inflicting pain and injury are personal relations\\ntoo. They are not like failing to benefit, and for that reason they are\\n1082\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nlaid under a correspondingly stricter regime than abstract harms to\\nthe collectivity. 34 If I claim respect for my own concrete particularity,\\nI must accord that respect to others. Therefore, what pinches here is\\nthe fact that the lawyer's personal engagement with the client is urging\\nhim to do that to his adversary which the very principles of personal\\nengagement urge that he not do to anyone.\\nIt is not wrong but somewhat lame to argue that the lawyer like\\nthe client has autonomy. From this argument it follows that the\\nlawyer who is asked to do something personally distasteful or immoral\\n(though perfectly legal) should be free either to decline to enter into\\nthe relationship of \\\"legal friendship\\\" or to terminate it.35 And if the\\nclient can find a lawyer to do the morally nasty but legally permissible\\nthing for him, then all is well-the complexities of the law have not\\nsucceeded in thwarting an exercise of autonomy which the law was\\nnot entitled to thwart. So long as the first lawyer is reasonably con-\\nvinced that another lawyer can be found, I cannot see why he is less\\nfree to decline the morally repugnant case than he is the boring or\\npoorly paid case. True, but lame, for one wants to know not whether\\none may refuse to do the dirty deed, but whether one is morally\\nbound to refuse-bound to refuse even if he is the last lawyer in town\\nand no one else will bail him out of his moral conundrum.\\nIf personal integrity lies at the foundation of the lawyer's right to\\ntreat his client as a friend, then surely consideration for personal in-\\ntegrity-his own and others'-must limit what he can do in friendship.\\nConsideration for personal integrity forbids me to lie, cheat, or\\nhumiliate, whether in my own interests or those of a friend, so surely\\nthey prohibit such conduct on behalf of a client, one's legal friend.\\nThis is the general truth, but it must be made more particular if it\\nis to do service here. For there is an opposing consideration. Remember,\\nthe lawyer's special kind of friendship is occasioned by the right of\\n34. This point is discussed in detail in Fricd, Right and Wrong-Preliminary Con-\\nsiderations, \\n5 J. LEGAL STUD. (June, 1976; forthcoming). The notion that abstention from\\nharming particular persons is a special kind of duty is expressed in Ross's concept of\\nnonmaleficence. See W. Ross, supra note 15, at 21-22.\\n35. DR 2-110(B)(I) of the Code of Professional Responsibility makes withdrawal\\nmandatory if the attorney \\\"knows or it is obvious that his client is bringing the legal\\naction, conducting the defense, or asserting a position in the litigation, or is otherwise\\nhaving steps taken for him, merely for the purpose of harassing or maliciously injuring\\nany person.\\\" DR 2-10(C)(1)(c) and (1)(d) permit a lawyer to seek withdrawal if the\\nclient either \\\"[i]nsists that the lawyer pursue a course of conduct that is illegal or that is\\nprohibited under the Disciplinary Rules\\\" or \\\"[b]y other conduct renders it unreasonably\\ndifficult for the lawyer to carry out his employment effectively.\\\" For an argument that\\nan attorney should make his own moral judgments about whether and how to represent\\nclients, see M. GREEN, supra note I, at 268-89. See also J. AUERBACH, supra note 1, \\nat\\n279-82.\\n1083\\n\\n\\nThe Yale Law Journal\\nthe client to exercise his full measure of autonomy within the law.\\nThis suggests that one must not transfer uncritically the whole range\\nof personal moral scruples into the arena of legal friendship. After all,\\nnot only would I not lie or steal for myself or my friends, I probably\\nalso would not pursue socially noxious schemes, foreclose on widows\\nor orphans, or assist in the avoidance of just punishment. So we must\\nbe careful lest the whole argument unravel on us at this point.\\nBalance and structure are restored if we distinguish between kinds\\nof moral scruples. Think of the soldier. If he is a citizen of a just\\nstate, where foreign policy decisions are made in a democratic way,\\nhe may well believe that it is not up to him to question whether\\nthe war he fights -is a just war. But he is personally bound not to fire\\ndum-dum bullets, not to inflict intentional injury on civilians, and\\nnot to abuse prisoners. These are personal wrongs, wrongs done by his\\nperson to the person of the victim. 3\\n0 So also, the lawyer must dis-\\ntinguish between wrongs that a reasonably just legal system permits\\nto be worked by its rules and wrongs which the lawyer personally\\ncommits. Now I do not offer this as a rule which is tight enough to\\nresolve all borderline questions of judgment. We must recognize that\\nthe border is precisely the place of friction between competing moral\\nprinciples. Indeed, it is unreasonable to expect moral arguments to\\ndispense wholly with the need for prudence and judgment.\\nConsider the difference between humiliating a witness or lying to\\nthe judge on one hand, and, on the other hand, asserting the statute\\nof limitations or the lack of a written memorandum to defeat what\\nyou know to be a just claim against your client. In the latter case, if\\nan injustice is worked, it is worked because the legal system not only\\npermits it, but also defines the terms and modes of operation. Legal in-\\nstitutions have created the occasion for your act. What you do is not\\npersonal; it is a formal, legally-defined act. But the moral quality of\\nlying or abuse obtains both without and within the context of the\\nlaw. Therefore, my general notion is that a lawyer is morally entitled\\nto act in this formal, representative way even if the result is an injus-\\ntice, because the legal system which authorizes both the injustice (e.g.,\\nthe result following the plea of the statute of limitations) and the\\nformal gesture for working it insulates him from personal moral\\nresponsibility. I would distinguish between the lawyer's own wrong\\nand the wrong of the system used to advantage by the client.\\nThe clearest case is a lawyer who calls to the attention of the court\\na controlling legal precedent or statute which establishes his client's\\n36. \\nSee Nagel, War and Massacre, I PHILOSOPHY & Pun. AFF. 123, 133-34, 136 (1972);\\nFried, supra note 34.\\n1084\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nposition even though that position is an unjust one. (I assume through-\\nout, however, that this unjust law is part of a generally just and decent\\nsystem. I am not considering at all the moral dilemmas of a lawyer in\\nNazi Germany or Soviet Russia.) Why are we inclined to absolve him\\nof personal moral responsibility for the result he accomplishes? I\\nassert it is because the wrong is wholly institutional; it is a wrong\\nwhich does not exist and has no meaning outside the legal framework.\\nThe only thing preventing the client from doing this for himself is\\nhis lack of knowledge of the law or his lack of authority to operate the\\nlevers of the law in official proceedings. It is to supply that lack of\\nknowledge or of formal capacity that the lawyer is in general authorized\\nto act; and the levers he pulls are all legal levers.\\nNow contrast this to the lawyer who lies to an opposing party in a\\nnegotiation. I assume that (except in extreme cases akin to self-defense)\\nan important lie with harmful consequences is an offense to the\\nvictim's integrity as a rational moral being, and thus the liar affirms a\\nprinciple which denigrates his own moral status.37 Every speech act\\ninvites belief, and so every lie is a betrayal. However, may a lawyer\\nlie in his representative capacity? It is precisely my point that a man\\ncannot lie just in his representative capacity; it is like stabbing some-\\none in the back \\\"just\\\" in a representative capacity. The injury and\\nbetrayal are not worked by the legal process, but by an act which is\\ngenerally harmful quite apart from the legal context in which it\\noccurs.\\nThere is an important class of cases which might be termed \\\"lying\\nin a representative capacity.\\\" An example is the lawyer presenting to\\nthe court a statement by another that he knows to be a lie, as when he\\nputs a perjurious client-defendant on the stand. There is dispute as to\\nwhether and when the positive law of professional responsibility per-\\nmits this, 3\\n8 but clearly in such instances it is not the lawyer who is\\nlying. He is like a letter carrier who delivers the falsehood. Whether\\nhe is free to do that is more a matter of legal than personal ethics.\\nA test that might make the distinction I offer more palpable is this:\\nHow would it be if it were known in advance that lawyers would balk\\nat the practice under consideration? Would it not be intolerable if it\\nwere known that lawyers would not plead the defense of the Statute\\nof Frauds or of the statute of limitations? And would it not be quite\\n37. \\nHere I follow Augustine, Lying, in TREATISES ON VARIOUS SUBJECTS (R. Deferrari\\ned. 1952), and I. KANT, THE METAPHYSICAL PRINCIPLES OF VIRTUE 90-93 (J. Ellington\\ntrans. 1964).\\n38. Compare M. FREEDMAN, supra note 7, at 27-41 with Noonan, The Purposes of\\nAdvocacy and the Limits of Confidentiality, 64 MICH. L. REv. 1485 (1966).\\n1085\\n\\n\\nThe Yale Law Journal\\nall right if it were known in advance that you cannot get a lawyer\\nto lie for you, though he may perhaps put you on the stand to lie in\\nyour own defense?\\nA more difficult case to locate in the moral landscape is abusive and\\ndemeaning cross-examination of a complaining witness. Presumably,\\npositive law and the canons of ethics restrict this type of conduct, but\\nenforcement may be lax or interpretation by a trial judge permissive.\\nSo the question arises: What is the lawyer morally free to do? Here\\nagain I urge the distinction between exposing a witness to the skep-\\nticism and scrutiny envisaged by the law and engaging in a personal\\nattack on the witness. The latter is a harm which the lawyer happens\\nto inflict in court, but it is a harm quite apart from the institutional\\nlegal context. It is perhaps just a matter of style or tone, but the\\ncrucial point is that the probing must not imply that the lawyer be-\\nlieves the witness is unworthy of respect.\\nThe lawyer is not morally entitled, therefore, to engage his own\\nperson in doing personal harm to another, though he may exploit the\\nsystem for his client even if the system consequently works injustice.\\nHe may, but must he? This is the final issue to confront. Since he\\nmay, he also need not if there is anyone else who will do it. Only if\\nthere is no one else does the agony become acute. If there is an\\nobligation in that case, it is an institutional obligation that has\\ndevolved upon him to take up a case, to make arguments when it is\\nmorally permissible but personally repugnant to him to do so. Once\\nagain, the inquiry is moral, for if the law enjoins an obligation against\\nconscience, a lawyer, like any conscientious person, must refuse and\\npay the price.\\nThe obligation of an available lawyer to accept appointment to\\ndefend an accused is clear. Any moral scruples about the proposition\\nthat no man should be accused and punished without counsel are not\\nmorally well-founded. The proposition is intended to enhance the\\nautonomy of individuals within the law. But if you are the last lawyer\\nin town, is there a moral obligation to help the finance company\\nforeclose on the widow's refrigerator? If the client pursues the fore-\\nclosure in order to establish a legal right of some significance, I do\\nnot flinch from the conclusion that the lawyer is bound to urge this\\nright. So also if the finance company cannot foreclose because of an\\nideological boycott by the local bar. But if all the other lawyers happen\\nto be on vacation and the case means no more to the finance company\\nthan the resale value of one more used refrigerator, common sense\\nsays the lawyer can say no. One should be able to distinguish between\\nestablishing a legal right and being a cog in a routine, repetitive\\n1086\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nbusiness operation, part of which just happens to play itself out in\\ncourt.\\nConclusion\\nI do not imagine that what I have said provides an algorithm for\\nresolving some of these perennial difficulties. Rather, what I am pro-\\nposing is a general way of looking at the problem, a way of under-\\nstanding not so much the difficult borderline cases as the central and\\nclear ones, in the hope that the principles we can there discern will\\nilluminate our necessarily approximate and prudential quest for\\nresolution on the borderline. The notion of the lawyer as the client's\\nlegal friend, whatever its limitations and difficulties, does account for\\na kind of callousness toward society and exclusivity in the service of\\nthe client which otherwise seem quite mysterious. It justifies a kind of\\nscheming which we would deplore on the part of a lay person dealing\\nwith another lay person-even if he were acting on behalf of a friend.\\nBut these special indulgences apply only as a lawyer assists his client\\nin his legal business. I do not owe my client my political assistance. I\\ndo not have to espouse his cause when I act as a citizen. Indeed, it is\\none of the most repellent features of the American legal profession-\\none against which the barrister-solicitor split has to some extent\\nguarded the English profession-that many lawyers really feel that they\\nare totally bought by their clients, that they must identify with their\\nclients' interests far beyond the special purpose of advising them and\\noperating the legal system for them. The defendants' antitrust lawyer\\nor defendants' food and drug lawyer who writes articles, gives speeches,\\nand pontificates generally about the evils of regulation may believe\\nthese things, but too often he does so because it is good for business or\\nbecause he thinks that such conduct is what good representation re-\\nquires.39 In general, I think it deplorable that lawyers have specialized\\n39. \\nThe implications of this idea are particularly important for the so-called Wash-\\nington lawyer (wherever he might be) who is hired to represent his client before agencies\\nand legislatures contemplating new law. This may put us on one of the borderlines I\\ndo not pretend to resolve definitively, yet I think we can get an idea of how to think\\nabout these cases too. To the extent that such representation involves participation in\\na formal proceeding in which laws or regulations are drafted and technical competence\\nis required, the task is closer to the traditional task of the lawyer as I have sketched it,\\nand the legal friend concept is more appropriate. To the extent that the representation\\ninvolves (wholly lawful) deployment of political pressures, inducements, and considera-\\ntions, it is closer to being political action, and thus to requiring the kind of overriding\\nconcern for the common good that should motivate all political actors. Certainly it is\\nabsurd that a man should seek to be insulated from moral judgment of his accomplish-\\nments as a political string-puller or publicist by the defense that he was only doing it\\nfor money.\\n1087\\n\\n\\nThe Yale Law Journal\\nnot only in terms of subject matter-that may or may not be a good\\nthing-but in terms of plaintiffs or defendants, in terms of the position\\nthat they represent. 4\\n0\\nThere is a related point which cuts very much in the opposite\\ndirection. It is no part of my thesis that the client is not morally\\nbound to avoid lying to the court, to pay a just debt even though it is\\nbarred by the statute of limitations, to treat an opposite party in a\\nnegotiation with humanity and consideration for his needs and vulner-\\nability, or to help the effectuation of policies aimed at the common\\ngood. Further, it is no part of my argument to hold that a lawyer must\\nassume that the client is not a decent, moral person, has no desire to\\nfulfill his moral obligations, and is asking only what is the minimum\\nthat he must do to stay within the law. On the contrary, to assume\\nthis about anyone is itself a form of immorality because it is a form\\nof disrespect between persons. Thus in very many situations a lawyer\\nwill be advising a client who wants to effectuate his purposes within\\nthe law, to be sure, but who also wants to behave as a decent, moral\\nperson. It would be absurd to contend that the lawyer must abstain\\nfrom giving advice that takes account of the client's moral duties\\nand his presumed desire to fulfill them. Indeed, in these situations\\nthe lawyer experiences the very special satisfaction of assisting the\\nclient not only to realize his autonomy within the law, but also to\\nrealize his status as a moral being. I want to make very clear that my\\nconception of the lawyer's role in no way disentitles the lawyer from\\nexperiencing this satisfaction. Rather, it has been my purpose to\\nexplicate the less obvious point that there is a vocation and a satisfac-\\ntion even in helping Shylock obtain his pound of flesh or in bringing\\nabout the acquittal of a guilty man. 41\\nFinally, I would like to return to the charge that the morality of\\nrole and personal relationship I offer here is almost certain to lead to\\nthe diversion of legal services from areas of greatest need. It is just\\nmy point, of course, that when we fulfill the office of friend-legal,\\nmedical, or friend tout court-we do right, and thus it would be a\\ngreat wrong to place us under a general regime of always doing what\\nwill \\\"do the most good.\\\" What I affirm, therefore, is the moral liberty\\nof a lawyer to make his life out of what personal scraps and shards of\\n40. In England barristers are regularly hired by the government in all manner of\\nlitigation, thereby accomplishing the many-sidedness I call for here. See Q. JOHNS ONE\\n& D. HOPSON, LAWYERS AND THEIR WORK 374-75 (1967). Why should this not be done\\nin the United States? Perhaps there is fear that this might simply become the occasion\\nfor a suspect form of patronage.\\n41. \\nThis point is due to Albert Sacks and Richard Stewart.\\n1088\\nVol. 85: 1060, 1976\\n\\n\\nThe Lawyer as Friend\\nmotivation his inclination and character suggest: idealism, greed,\\ncuriosity, love of luxury, love of travel, a need for adventure or\\nrepose; only so long as these lead him to give wise and faithful counsel.\\nIt is the task of the social system as a whole, and of all its citizens, to\\nwork for the conditions under which everyone will benefit in fair\\nmeasure from the performance of doctors, lawyers, teachers, and\\nmusicians. But I would not see the integrity of these roles undermined\\nin order that the millennium might come sooner. After all, it may\\nnever come, and then what would we be left with?\\n1089\",\"difficulty\":\"easy\",\"domain\":\"Single-Document QA\",\"length\":\"short\",\"question\":\"What is the core argument of this article?\",\"sub_domain\":\"Legal\"}","display_format":"text","language":"","answer_status":"published","assets":[],"source_url":"https://huggingface.co/datasets/zai-org/LongBench-v2","history":"initial import","indexing_mode":"noindex","subproblems":[],"grids":[]}