Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, March 23, 2004

Church Scandal Revisited: The Lawyer's Proper Role as Moral Catalyst

One of our readers, attorney and judicial clerk John Doe, writes with appreciation for our the Mirror of Justice and our ongoing discussion about the shameful role of lawyers in what Richard John Neuhaus has described as our Church’s “Long Lent” since the priest sex abuse scandal seized public attention. While agreeing that lawyers should not neglect the moral counseling aspect of our role, Mr. Doe remarks that, in the specific context of this Catholic Church scandal, this might have been a “tall order.” He quite rightly points out that it might be rather presumptuous for a lawyer, even a Catholic lawyer, to act as a moral advisor to a bishop or other high church leader. Mr. Doe thoughtfully asks whether the lawyer, at least in this particular context, is really qualified or justified in offering moral advice to the client.

I do regard it as fundamentally important for the lawyer to begin every attorney-client relationship by asking the client a basic question: “Who are you?” The lawyer should not presume the answer, but neither should the lawyer allow the representation to stumble along unguided and without insisting upon the client’s answer to this question. By framing the inquiry in a manner that invites the client to draw upon the client’s own values, the lawyer assists the client to be true to the client’s own best self.

In other words, what I mean to encourage here is the initiation between the lawyer and the client of a moral conversation. This should not be a lecture by the lawyer nor serve as the vehicle by which the lawyer arrogates the position of moral dictator. Rather, this should be a cooperative process in which the lawyer and the client work together to achieve the best outcome for the client, including a humane outcome that is consistent with the client’s own moral compass. The lawyer thus would serve a catalytic role, encouraging the client to think more deeply about what the client should do, both legally and morally.

Would it have been presumptuous for an attorney to instruct the princes of the Church on morality? Perhaps, especially if the lawyer was not also trained in theology or canon law. But would it have been presumptuous for the lawyer to inquire whether the Church’s nature and mission demanded a different approach to this problem? Would it have been inappropriate to ask pointed questions that forced Church leaders to confront the possible disconnect between the mission of Christ’s Church and the legal tactics employed to deflect embarrassing disclosure of priestly failures? I don’t think so.

As Rob Vischer writes in his recent post here, the legal profession tends to elevate client autonomy to an absolute, regarding lawyers as amoral technicians who simply implement in legal terms the client’s stated objectives. Even worse, I want to emphasize here, most lawyers assume that their clients have no ideals, no values, no moral calling that would be relevant to the legal task. As Rob says, lawyers too often fail “even to suggest that a client reflect meaningfully on those objectives.” In so doing, the lawyer encourages the client to regard the world of legal affairs as devoid of values. In this way, the legal profession makes those who enter into this world comfortable with amoral attitudes and ethical neglect, thereby lowering the quality of moral discourse and interaction in society.

In sum, if we as lawyers fail to provoke the client to consider the moral implications of legal problems, we encourage the client to divorce the essential moral dimension of the client’s identity from the client’s responses to legal problems. The legal profession for too long has told clients, at least implicitly, to leave their values at the door when entering the lawyer’s office. Not surprisingly, that way lies disaster. And that danger inherent in amoral legalisms were tragicly realized in the role played by lawyers in the Church sex abuse scandal.

Greg Sisk


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