Client Centered Counseling and Moral Accountability For Lawyers

Client Centered Counseling and Moral
Accountability for Lawyers

By Robert M. Bastress*
Many lawyers view their role in the attorney-client relation-
:-. ship as that of a paternalistic captain charting and asserting his
solution to the client's problems. The attorney is clearly in charge
and dominates the relationship. At the same time, most lawyers
advocate on behalf of clients without ever confronting the moral or
social propriety of clients' claims. The Code of Professional Re-
sponsibility and our adversarial system have relieved attorneys of
moral accountability for what they advocate in their professional
role.
Recently, both of these approaches to lawyering have met
much criticism. Building on the humanist schools of psychotherapy
and philosophy,' a number of commentators have espoused some
form of a "client-centered" approach to l a ~ e r i n gThat
. ~ approach
* Associate Professor of Law, West Virginia University.

1. See, e.g., M. BUBER, BETWEEN MANAND MAN(1947); A. MASLOW, TOWARD A
PSYCHOLOGY OF BEING(1968); C. ROGERS, CLIENT-CENTERED THERAPY (1951); C.
ROGERS, ON BECOMING A PERSON (1961). See also authorities cited in nn. 65-68,
infra.
2. E.g., R. BASTRESS & J. HARBAUGH, INTERPERSONAL SKILLSFOR LAWYERS
(manuscript); G. BELLOW & B. MOULTON, THELAWYERING PROCESS: MATERIALS FOR
CLINICAL INSTRUCTION IN ADVOCACY, 124-272, 966-1112 (1978); D. BINDER& S.
PRICE, LEGALINTERVIEWING AND COUNSELING (1977); T. SHAPFER, LEGALINTER-
VIEWING AND COUNSELING (1976); T. SHAPPER & R. REDMOUNT, LEGALINTERVIEWING
AND COUNSELING (1980); Goodpaster, The Human Arts of Lawyering: Znterview-
ing and Counseling, 27 J. LEG.ED. 5 (1973); Maute, Allocation of Decisionmaking
Authority Under the Model Rules of Professional Conduct, 17 U.C. DAVISL. REV.
1049 (1984); Sacks, Human Relations Training for Law Students a n Lawyers, 11
J. LEG.ED. 316 (1959). In addition, see a more complete citation of authorities in
Bastress & Harbaugh, Examining Lawyers' Skills, in CLINICAL LEGALEDUCATION,
REPORTOF THE AALS-ABA COMMITTEE ON GUIDELINES FOR CLINICAL LEGALEDU-
CATION, 223, 223-26 nn. 1-12 (1980). These commentators, and others writing on
the subject, have modified to some extent the client-centered approach when
transferring it from psychotherapy to legal counseling. The modification is dic-
tated by somewhat different goals (or a t least different primary goals); psycho-
therapists are most concerned with personality growth and development while
lawyer-counselors are most concerned with working through particular problems
98 The Journal of the Legal Profession
puts the attorney in the role of an open, accepting helper and

leaves both priority-setting and decision-making to the client. The
lawyer helps the client determine what is best for him in light of
his own priorities.
Another set of commentators has focused on the bar's amoral-
ity and has urged a duty for lawyers to judge for themselves the
moral and societal implications of their clients' cause^.^ Some in
that group have criticized the client-centered set for reinforcing
the long-standing moral neutrality of the bar.'
This article advocates both client-centered counseling and
moral accountability for lawyers. Although the two models may at
first glance seem inconsistent, the discussion will show that they
are necessarily interdependent. The article will primarily focus on
the development of a duty for lawyers to independently assess the
consequences of their advocacy.
These goals are accomplished in several steps. Part I sketches
an overview of the client-centered approach. Part I1 and I11 sum-
marize two views of the attorney's moral responsibility. Part I1 dis-
cusses the "traditional" conception-that the lawyer is simply an
advocate and has little or no accountability for what he advocates.
Part I11 capsulizes the alternative-that the lawyer should exercise
independent moral judgment. The limitations and advantages of
that approach are noted. Part IV then explains the relationship
between the client-centered and morally independent models. Fi-
nally, Part V describes how moral accountability for lawyers can be
implemented. The section offers examples, both famous and com-
that have a "legal" setting. In addition, legal education cannot realistically be ex-
pected t o train lawyers t o handle t h e more advanced and more complex psycho-
logical issues regularly treated by psychotherapists.
3. E.g., Flynn, Professional Ethics and the Lawyer's Duty to Self, 1976
WASH.U.L.Q. 429; Noonan, Other People's Morals: The Lawyer's Conscience, 48
TENN L. REV. 227 (1981); Shaffer, T h e Moral Theology of Atticus Finch, 42 U.
PIIT. 181 (1981); Simon, T h e Ideology of Advocacy: Procedural Justice and Pro-
fessional Ethics, 1978 W I S .L. REV. 29; Simon, Homo Psychologicus: Notes on a
New Legal Formalism, 32 STAN.L. REV.487 (1980); Wasserstrom, Lawyers as Pro-
fessionals: Some Moral Issues, 5 HUMANRIGHTS1 (1975). See also, Abramson,
Attorneys, Clients, "Ethics", 52 NOTREDAMELAWYER797 (1977); Schudson, Pub-
lic, Private, and Professional Lives: T h e Correspondence of David Dudley Field
and Samuel Bowles, 21 AM.J . LEG.HIST.191 (1977); Shaffer,The Legal Ethics of
Two Kingdoms, 17 VAL.U.L. REV. 3 (1983).
4. Simon, Homo Psychologicus, supra n. 3. On a more general, non-legal
level, see Lasch, Book Review, T H ENEW REPUBLIC 30-31 (March 31, 1979).
Client Centered Counseling 99
monplace, to illustrate how the proposed duty can operate in prac-

tice. The discussion concludes by suggesting steps that can be
taken to accomplish and enforce moral responsibility and by pro-
posing standards to guide lawyers in meeting their responsibility.
I. A MODEL FOR THE LAWYER-CLIENT RELATIONSHIP

Recent texts and articles have developed comprehensive theo-
ries for conducting lawyer-client relation^.^ This section aims only
to sketch a client-centered model6 to provide a basis for dealing
with the perplexing issues of moral responsibility that will be dis-
cussed below.
In this model, the lawyer strives to build a "helping relation-
ship," one in which the lawyer is demonstrably sincere, empathic,
nonjudgmental, and honest. It focuses on the client-on his prob-
lem, his goals, and his feelings. The lawyer and client work to-
gether as partners. The lawyer supplies his expertise and
skills-legal, practical, and interpersonal-and the client sets the
priorities and decides the major issues.
This lawyer-client partnership accomplishes several purposes.
The reflective, empathic listening essential to client-centered rela-
tionships encourages a free flow of information. The client re-
sponds and openly discusses all the facts in the case, including his
feelings about the subject a t hand. Obviously, a lawyer wants all
the traditional "legal" facts, but the client's feelings are also im-
portant facts. Law office decision-making-that forum in which
law operates most pervasively-often concerns issues whose resolu-
tion will turn as much on how a client feels about certain individu-
als and actions as on any fact relating to the legal merits. (E.g.,
who should the client include in a will and to what extent? Should
he enter into a particular contract? Or sue his employer?) By dem-
onstrating empathy and acceptance, the lawyer establishes a non-
threatening atmosphere so the client feels a t ease in describing
sensitive emotions and topics.
The client-centered approach builds rapport and mutual trust,
which are essential for the lawyer and client to work together to
reach solutions or to deal with the results in cases without solu-
tions. When the client knows his lawyer accepts, cares about, and
5. Note 2, supra, lists a sampling of such authorities.

6. The model sketched here is thoroughly developed in R. BASTRESS,
& J.
HARBAUGH,INTERPERSONAL SKILLSFOR LAWYERS (manuscript).
respects him as a person, the client will be more inclined to trust

in the lawyer. The two can thus feel secure in confronting issues
together and can better work as partners. Such partnerships are
more efficient ("two heads are better than one") and more satisfy-
ing for both the client and the attorney.
By adopting a client-centered model, the lawyer enhances the
intrinsic value of his relationship with his client. The model facili-
tates meaningful human relations for both its participants. When
individuals experience an open, nonthreatening environment, they
are better able to recognize their feelings, better able to accept
themselves, and consequently, to grow as persons. That is not to
say such a lawyer-client relationship profoundly affects a partici-
pant's personality (though that is possible), but mutuality of trust
and candor in a lawyer-client partnership can contribute to and
facilitate personal development for both partners. That bestows on
the relationship an intrinsic value and thus should be one of the
lawyer's goals with every client he represents. Unfortunately, it is
one goal that has often been lost among the more utilitarian justifi-
cations for client-centered lawyering.
The client-entered approach recognizes and enhances the im-
portance of the individual qua individual. The client does not per-
ceive himself as, and is not, an instrument to be manipulated by
the lawyer. Rather, the client directs his own destiny, relying on
the lawyer as a helper and as a guide through the legal labyrinths.
Thus, the client-centered approach emphasizes autonomy and in-
dividual growth.'
Finally, a lawyer-client relationship founded on mutual trust
and candor increases the likelihood that the relationship will
render a just and fair result, from both the client's and society's
perspective. There is empirical evidence showing that the "help-
ing" lawyer achieves more favorable settlements for his clients:
presumably because he is more aware of his own needs and be-
7. E.g., C. ROGERS, ON BECOMING A PERSON166-81 (1961) (client-centered

counseling facilitates, and depends on, individual autonomy, self-direction, and
self-fulfillment). See also id. at 26-27 ("persons have a basically positive direc-
tion" when given autonomy); nn. 65-87 & accompanying text, infra.
Oddly enough, one commentator has criticized the client-centered advocates
for imposing conformity and stifling individuality. Simon, Homo Psychologicus,
supra n. 3, at 528-29. Such criticism is b a i n g ; an approach that calls for the
counselor to be empathic and accepting hardly seems to embrace conformity.
8. D. ROSENTHAL, LAWYER AND CLIENT: WHO'SIN CHARGE (1974).
cause he operates with fuller information. Thus the client is more

likely to be satisfied. In addition, if the relationship has acquired
mutual trust and candor, then the lawyer and client will be able to
discuss freely what are the social and moral ramifications of a par-
ticular course of action or settlement. This, too, has not been a
widely recognized goal of the lawyer, but, as will be developed be-
low, the lawyer has a professional and moral responsibility to see
that justice is s o ~ g h tCorrespondingly,
.~ the chances of justice pre-
vailing are enhanced.
These goals-free flow of information, rapport and mutual
trust, a meaningful relationship, and a result that is (if possible)
agreeable to the client and just-and the character of the client-
centered approach-open, candid, trusting-are accomplished
through a variety of techniques and skills. The lawyer, first of all,
must be a good listener; she must hear what the client says and
must note what the client does not say. The listening, too, must be
"active"; that is, the lawyer must communicate back to the client
that she hears him and understands what he has said and feels.
The lawyer essentially acts as a mirror for the client. This reflec-
tion, when accurate, communicates empathy-that the lawyer has
placed herself in the client's shoes and understands the client's
feelings.1°
The lawyer should be accepting, supportive, and nonjudg-
mental (except as qualified below). She should offer an under-
standing that will convince the client he remains a human being
worth caring about regardless of the facts or desires he reveals.
Such an attitude helps the client to be open and to acquire greater
self-awareness.
The lawyer, too, must be conscious of his own needs. A lawyer
is subject to competing drives and pulls within his own personality
that can seriously affect his professional relations and perform-
ance.ll He may have a strong need for power or achievement (both
9. Part 111, infra. See Abramson, supra n. 3.

10. See, e.g., A. BENJAMIN, THEHELPING INTERVIEW 46-50 (2nd ed. 1974); W.
CORMIER, INTERVIEWING STRATEGIES FORHELPERS 61-76 (1979); R. GORDEN, INTER-
VIEWING: STRATEGY, TECHNIQUES, AND TACTICS41-44 (2nd Ed. 1975). See generally
R. CARKHUFF & B. BERENSON, BEYOND COUNSELING AND THERAPY (1967); G. EGAN,
THESKILLED HELPER (1975).
11. R. BASTRESS & J. HARBAUGH, supra n.6, ch. 13. See also A. WATSON, THE
LAWYER IN THE INTERVIEWING AND COUNSELING PROCESS 75-100 (1976); Leete,
Francia & Strawser, A Look at Lawyer's Need Satisfaction, 57 A.B.A.J. 1193
are common among lawyers). He may be materialistically acquisi-

tive or have a strong need to be accepted and liked. He may be
subject to feelings of countertransference.12 Some motivating forces
push every attorney. What those forces may be in a given case is
not critical to the present discussion; the important point is the
lawyer must recognize and deal with them. Introspection, mutual
trust and candor with the client, and discussions with partners and
intimates are the means by which attorneys can gain the needed
self-awareness.
The lawyer helps the client in meaningful ways to choose the
most appropriate course of action in light of the client's priorities.
Naturally, the lawyer must contribute her legal expertise and
counsel, but the client-centered attorney does much more. She
structures agenda and the issues to clarify the clients' choices; she
explains; she identifies the consequences of each alternative. She
reflects back to clients not only what they have verbalized but also
emotions that might lie below the surface of their awareness. The
attorney confronts clients with inconsistencies and self-discloses to
provide support and relevant information. That is, the client-cen-
tered lawyer does not see her counseling role as merely laying the
alternatives on the table for the client to pick one; rather, she feels
the responsibility to use the above skills to help the client deter-
mine and assess his evaluative criteria and then apply them to his
alternatives.lS Obviously, a lawyer with that perception of her re-
sponsibility must do considerable preparation for her interpersonal
sessions with clients. Research must be done and analyzed before
counseling. Counseling sessions that must produce, or at least dis-
cuss, some law office decision must be planned, not to the point of
inflexibility but enough to enable the lawyer to think through al-
ternative solutions and identify tbpics that must be probed.
To repeat, this section merely sketches a model for the lawyer-
counselor. The sketch should, however, serve to describe a percep-
tion of lawyering that allows for maximum satisfaction of client
needs while meeting institutional needs (through effective repre-
sentation of clients). The model looks to the client for decisions
and to the lawyer as an advisor, legal analyst, and helper. The
-- - --
(1971).
12. A. WATSONsupra n. 11, at 41, 44, 75-79; A. WATSON,PSYCHIATRY
FOR
LAWYERS 6, 31 (2nd ed. 1978).
13. R. BASTRESS& J. HARBAUGH, supra n.6, ch. 12.
above description leaves open, however, what the lawyer's moral

responsibility should be in his relations with and representation of
clients. The remainder of this article is directed toward that
subject.
11. TRADITIONAL PERCEPTION OF THE LAWYER'S MORAL

OBLIGATION
Extending back to the English legal system and persisting
through today, the generally prevailing conception of the lawyer's
social and moral roles has left him a moral eunuch. Tradition and
the Code of Professional Responsibility hold that the lawyer must
zealously represent his client, limited only by the bounds of the
law." Whom he represents and what he advocates carries no re-
sponsibility-he is not held accountable for the causes he advoc
The system's truth-finding (or a t least decision-making) process
depends upon the competing sides in a dispute presenting their
cases to a neutral judge or jury. The litigants, to have their posi-
tions adequately and fairly adduced, are entitled to be represented
by skilled, trained advocates, schooled in the procedures and
quirks of the system. Indeed, traditionalists contend that the pro-
cess can only work if each side is technically proficient and
"blindly ~ealous."'~Thus, to assure that each party will receive a
14. ABA CODEOF PROFESSIONAL RESPONSIBILITY Canon 7. See also id. EC 7-

19 quoted in n. 15, infra; text a t n. 50, infra (discussing provisions of CPR and
the proposed MODELRULESOF PROFESSIONAL CONDUCT that relate to the lawyer's
duty to accept, reject, continue on, or resign from cases with which he has moral
or social reservations.)
15. E.g., ABA CODEOF PROFESSIONAL RESPONSIBILITY EC 7-19:
"Our legal system provides for the adjudication of disputes governed
by the rules of substantive, evidentiary, and procedural law. An adver-
sary presentation counters the natural human tendency to judge too
swiftly in terms of the familiar that which is not yet fully known; the
advocate, by his zealous preparation and presentation of facts and
law, enables the tribunal to come to the hearing with an open and
neutral mind and to render impartial judgments. The duty of a lawyer
to his client and his duty to the legal system are the same: to re-
present his client zealously within the bounds of the law."
See also, e.g., M. FREEDMAN, LAWYERS' ETHICSIN AN ADVERSARY SYSTEM (1975);
Fortas, Thurman Arnold and the Theatre of the Law, 79 YALEL.J. 988, 1002
(1970); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-
Client Relation, 85 YALEL.J. 1060 (1976); Landsman, The Decline of the Aduer-
sary System and the Changing role of the Advocate in that System, 18 SANDI-
EGO L. REV.251 (1981).
fair hearing, the lawyer is insulated from accountability for the po-
sition he advocates, even though his client's position is ultimately
found to be unlawful or unjust.
This perception of the lawyer's moral responsibility projects
him as operating in two moral spheres: his personal and his profes-
sional. The dichotomy finds support in the notion, proceeding from
St. Paul through Martin Luther and into the twentieth century,16
that each sphere has special characteristics calling for different
moral treatment. Limitations prevail in the "public" realm that
preclude a morality as rigid as that which should control the per-
sonal realm. At times, the argument goes, one can do no better
than a "relative morality" when confronting means-ends conflicts
in the public sphere. Government leaders, for example, must de-
cide whether preserving peace or rescuing a strategic ally justifies a
timely deceit. In international and political relations, which are de-
pendent upon the good will and cooperation of their participants
with few measures to enforce principles, decision-makers fre-
quently act in a moral vacuum. The political pragmatist manipu-
lates and pressures to achieve positive goals when the rigid moral-
ist might be ineffective. Thus, Lord Cromwell preserved peace in
England when a Thomas More could not have," and Lyndon
Johnson cajoled civil rights and anti-poverty legislation out of
Congress when others might have failed. Montaigne endorsed this
compartmentalized morality when he said, "I have been able to
concern myself with public affairs without moving the length of my
nail from myself. . . . The mayor and Montaigne have always been
two people, clearly separated."18
In their professional lives, lawyers, too, must function in set-
tings that do not always permit them to adhere strictly to their
ideals. "There's no reason why a lawyer . . . should not recognize
the knavery that is part of his vocation," Montaigne insisted. "An
honest man is not responsible for the vices or the stupidity of his
~alling."'~At times, the lawyer must sacrifice his personal feelings
for the good of the system or his client. Thomas Shaffer (though
not endorsing it) has summarized this view:
16. Shaffer, supra n.3.

17. Id. at 8-11.
18. Quoted in Postema, Moral Responsibility in Professional Ethics, 55
N.Y.U.L. REV.63, 64, (1980).
L. REV.3, 20
19. Id. at 63. See also Curtis, The Ethics of Advocacy, 4 STAN.
(1951).
The best you can hope for in exercising power in the world, as
a judge does and as lawyers do, is "the relative good"; you can't
follow the law of love in public and professional life; you do the
best you can and that is always to some extent evil. If the mo-
rality of public and professional life is not exactly a separate
morality, it is inevitably a compromised morality.20
In a related-yet ironically different-argument, Charles Fried
has defended the lawyer's dual morality by analogizing the lawyer-
client relationship between friends and between close r e l a t i ~ e s . ~ ~
For example, our society might endorse some level of distributive
justice yet still approve of a person's decision to provide his family
with housing, food, and education to the exclusion of aiding the
starving masses in Northern Africa.2a Fried also sees the lawyer's
total discretion in deciding to
represent a client as a function of basic liberty and justice:
Just as the principle of liberty leaves one morally free to
choose a profession according to inclination, so within the
profession it leaves one free to organize his life according to
inclination. The lawyer's liberty-moral liberty-to take up
what
kind of practice he chooses and to take up or decline what
clients he will represent is an aspect of the moral liberty of
itself to enter into personal relations freely.2s
.........
If the lawyer is really to be impressed to serve. . . social needs,
then his independence and discretion disappear, and he does
indeed become a public resource cut up and disposed of by the
public's needs. There would be no justice to such a
con~eption.~'
Such apologies have been used to justify auction of lawyers to
the highest bidder and permitted those hires to advocate with im-
p ~ n i t y . ~The
" lawyer's response to critics, and to himself, can inva-
riably rest on the assertion that he is simply a professional doing
his job, lending an essential element to our legal system.This con-
20. Id. at 13.

21. Fried, supra n. 15.
22. Id. at 1065-76.
23. Id. at 1078.
24. Id. at 1079.
25. See J. AUERBACH, UNEQUAL JUSTICE 153-54. Schudson, supra, n. 3; Simon,
The Ideology of Advocacy, supra note 3, at 36.
ception of the lawyer's role has a venerable history. The classic

description was made by Lord Brougham in 1820:
An advocate, by the sacred duty which he owes his client,
knows, in the discharge of that office, but one person in the
world, THAT CLIENT AND NONE OTHER. To save that
client by all expedient means, to protect that client a t all
hazards and costs to all others, and among others to himself, is
the highest and most unquestioned of his duties: and he must
not regard the alarm, the suffering, the torment, the destruc-
tion which he may bring on any other. Nay, separating even
the duties of a patriot from those of an advocate, and casting
them, if need be, to the wind, he must go on reckless of the
consequences, if his fate it should unhappily be to involve his
country in confusion for his client's sake.2e
Later in that century, this view was acted out in America by

David Dudley Field in a series of notorious actions taken on behalf
of a pair of shyster railroad magnatesz7Field, the tireless reformer
of procedural codes, used loopholes in New York's civil procedure
laws (which he drafted) to secure questionable injunctions to facili-
tate the speculative and greedy undertakings of his clients. He
then represented them as they executed a series of clearly immoral,
probably illegal, and possibly homicidal maneuvers. Field defended
his role in the litigation through a highly publicized correspon-
dence with the noted editor of the Springfield Republican, Samuel
Bowles. Field's participation in these events and in the exchange of
letters, says one commentator, reflected "a kind of 'amoral moral-
ity' "-a belief that lawyers "served justice best by refusing, them-
selves, to judge their clients" or their clients' causes.z8The story of
David Dudley Field is just one example from a century that saw
the adversarial model increasingly proffered as the appropriate one
for
26. Quoted in Schudson, supra n. 3, at 205-06. See also Goldberger, The

"Right to Counsel" in Political Cases: The Bar's Failure, 43 L. & C.P. 321, 324
(1979), which notes that "the obligation of the English barrister to undertake any
case tendered to him was acknowledged in Scotland as early as the sixteenth cen-
tury." Goldberger, though, is concerned with protecting lawyers who represent
unpopular clients. As noted in the text accompanying nn. 54-55 & 110-11, infra,
the unpopularity of a lawyer's advocacy should not be confused with its morality.
27. Schudson, supra n. 3.
28. Id. at 192.
29. See 0.W. HOLMES, THECOMMON LAW(1881); Schudson, supra n. 3, at
By the turn of the century, the adversarial approach was the

clearly prevailing view. Elihu Root, a prominent lawyer and a pres-
ident of the American Bar Association, commented in 1906 that
the "pure lawyer seldom concerns himself about the broad aspects
of public One of that era's most respected and successful
American attorneys, John W. Davis, spent a professional lifetime
working under this belief and on behalf of moneyed, voracious in-
terests. According to his biographer, Davis's philosophy held that
t h e lawyer's duty was to represent his client's interests t o t h e
limit of the law, not t o moralize on t h e social a n d economic
implications of t h e client's lawful action^.^'
Early in Davis' career, for example, Davis represented rail-

roads and coal companies in West Virginia, a state whose laws
were then highly protective of those industries. He rationalized the
inequities occasioned by the laws' harshness: "It was my duty," he
said, "to find out what the law was, and tell my client what rule of
life to follow. That was my job. If the rule changes, well and
good."32 SO he represented a railroad as it built a railroad line
through the farm of one of Davis's old friends and six feet from the
farmhouse door. A short while later, a coal company client insisted
that Davis force the sale of a widow's property under the terms of
an earlier, unfavorable contract. Davis reflected, "The lawyer must
steel himself like the surgeon to think only of the subject before
him and not of the pain his knife can cause. . . . He spends his life
making enemies in other people's quarrels."33
192-93; Shaffer, The Moral Theology of Atticus Finch, 42 U . PI^. L. REV.181,

214 n.79 (1981). According to Schudson, the influential Holmes book
"argued that the law made progress by focusing on technical-and
hence resolvable-issues, rather than on moral-and hence indetermi-
nate-considerations. Lawyers in their day-to-day practice could
make the corresponding claim that their expertise had nothing di-
rectly to do with morals but was simply a technical instrument appli-
cable to any situation. Justice inhered in the legal system not in its
constituent acts just as, in the market the optimal distributing of
wealth was expected to be the systemic outcome of a multitude of
self-interested choices." Id. (emphasis in original).
30. W. HARBAUGH, LAWYER'S LAWYER: THELIFEOF JOHN W. DAVIS22 (1973).
See also J . AUERBACH, supra n. 25, at 130-57 (1976).
31. W. HARBAUGH, supra n. 30, at 264.
32. Id. at 46.
33. Id. See also id. at 23, 45, 264, 267.
The traditional view prevails today. Chief Justice Burger, for

example, has written that "in the highest tradition of the law, . . .
the advocate is not to be invidiously identified with his ~lient."~'
Similarly, Justice Abe Fortas expressed his view in a eulogy of his
former law partner and friend, Thurman Arnold:
Lawyers are agents, not principals; and they should neither
criticize nor tolerate criticism based upon the character of the
client whom they represent or the cause they prosecute or de-
fend. They cannot and should not accept responsibility for the
client's practices. Rapists, murderers, child-abusers, General
Motors, Dow Chemical-and even cigarette manufacturers and
stream-polluters-are entitled t o a lawyer; and any lawyer who
undertakes their representation must be immune from criti-
cism for doing
The practicing bar generally endorses that view.36 The bar's

principle self-image is that lawyers are professionals who, like doc-
tors or dentists, work and do their best for clients regardless of the
clients' identities or causes.37 For example, one of the country's
successful trial lawyers, Roy Cohn, has said in an interview, "[Mly
personal ethics are to win. Total devotion to employment and to
win, to go for the jugular, to fight as rough and as tough as I can
within the bounds of legality."38 Later in the same interview, Cohn
elaborated, "It is not the lawyer's responsibility to believe or not to
34. Gertz v. Welch, 418 U.S. 323, 355 (1874) (dissenting opinion). It should
be noted, though, that the Chief Justice was writing in the context of a lawyer's
representation of unpopular-not immoral-clients. See n. 26, supra, & text ac-
companying nn. 54-55, 110-11, infra. Thus, if is not clear that the Chief Justice
would necessarily apply his statement to all contexts.
35. Fortas, Thurman Arnold and the Theatre of the Law, 79 YALEL.J. 988,
1002 (1970).
36. See nn. 14-15 & accompanying text, supra, and nn. 45-50 & accompany-
ing text, infra.
37. See Maute, supra n. 2, which divides lawyers into two camps: "instru-
mentalists," who view themselves as technicians doing their clients' bidding
within the bounds of the law, and "paternalists," who preempt client decision-
making. While the present article has much in common with the Maute piece, and
conceding the instrumentalist-paternalist distinction has substance, in practice
many lawyers cross lines between camps. Those lawyers interfere in client deci-
sion-making and then justify their ensuing conduct by characterizing themselves
as mere technicians executing a client's desires.
38. Reflections on a Life of Controversy: Roy Cohn . . . on Roy Cohn, THE
NATIONAL LAWJOURNAL 13, 46 (Dec. 1, 1980).
believe-the lawyer is a mere techni~ian."~~ And, "every person

has a right to a lawyer of his own choice. . . . Now, there is never
a need for a lawyer to apologize for whom he represent^."'^ The
academic literature also continues to yield support for the insula-
tion of lawyers' advocacy from moral scrutiny."
The entrenchment and pervasiveness of the adversarial model
in legal education and the profession has provoked Richard Was-
serstrom (among others) to speculate it is responsible for the nefa-
rious deeds committed by Watergate law ye^-s.'~ The Nixon admin-
istration lawyers perceived the President as their client, and could
thus rationalize their shenanigans-"lying to the public; dis-
sembling; stonewalling; tape-recording conversations; playing dirty
trick~"~~-executedon his behalf. While not all those activities
were illegal, they certainly evidenced an amorality and a confusion
of means and ends. These young lawyers were unable to shed their
professional training, which had taught them to blindly advance
the client's interest without serious consideration of means and
consequences. According to Professor Wasserstrom,
39. Id. See also Noonan, Other People's Morals: The Lawyer's Conscience,
48 TENN. L. REV.227, 228-30 (1981), which recounts the involvement of Hoyt
Moore, "a highly respectable New York lawyer, a rather righteous Yankee from
Maine," in an attempt to financially influence a federal judge on behalf of Bethle-
hem Steel. Moore's conduct was clearly improper, of course, but the point of the
story lay in his firm's rationalization that he did it for his client. Moore's partner
later wrote-without mentioning the bribe attempt-that "[nlo lawyer ever unre-
servedly gave more of himself to a client than Hoyt Moore has given to Bethle-
hem." R. SWAINE, 2 THECRAVATH FIRMAND ITS PREDECESSORS 144 (1948).
40. Id. at 47. Cohn did, however, equivocate and he tempered the statements
quoted in the text. He also said, "I take advantage of my special practice to be
personally selective, meaning I won't take a case unless I believe in it." Id. He
stated further:
I have to have a motivating factor in order to represent somebody.
That is my personal ethic. I have to believe that person is being selec-
tively prosecuted, picked on, legally wronged, or if not legally
wronged, morally wronged, otherwise I am not comfortable with the
case. Id.
Thus, if there is a consistency in Mr. Cohn's position, it is apparently that while
he personally follows the moral principles advocated in this article, he would not
apply them to lawyers generally.
41. E.g., M. FREEDMAN, supra n. 13; Fried, supra n. 13; Landsman, supra n.
15. See nn. 15-24 & accompanying text, supra.
42. Wasserstrom, supra n. 3.
43. Id. 5 HUMAN RIGHTSat 11.
[Tlhe behavior of the lawyers involved in Watergate was sim-

ply another less happy illustration of lawyers playing their ac-
customed institutional role. If we are to approve on institu-
tional grounds of the lawyer's zealous defense of the apparently
guilty client and the lawyer's effective assistance of the im-
moral cheat; does it not follow that we must also approve of
the Watergate's zealous defense of the interests of Richard
Ni~on?'~
As previously noted, the Bar's professional codes have for-
mally institutionalized the adversarial, amoral model. "A law-
yer should assist the legal profession in fulfilling its duty to
make legal counsel available," directs Canon 2. Although that
does not require the lawyer to represent "every person who
wishes to become his client," Ethical Consideration 2-26 ad-
monishes that "a lawyer should not lightly decline proffered
employment. The fulfillment of [Canon 2'91 objective requires
acceptance by a lawyer of his share of tendered employment
which may be unattractive both to him and the bar generally."
Rejection of employment is warranted only if "the intensity of
his personal feeling, as distinguished from a community atti-
tude, may impair his effective representation of a prospective
~lient."'~Canon 5 holds, "A lawyer should exercise indepen-
dent professional judgment on behalf of a client." The Canon
presumes "the lawyer acts on behalf of or for rather than to or
with the ~lient."'~Ethical Consideration 5-21 makes clear that
the Canon 5 obligation requires the lawyer to act "solely on
behalf of his client" and to "disregard the desires of others
that might impair his free judgment." According to Robert
Redmount, "Canon 5 locks the lawyer into an advocacy and
adversarial role. His judgment of the situation, reiardless of
what it is, is distorted by his obligation to his client, directly
contradicting the idea that he is able to exercise independent
judgment.""
Canon 7 provides the creed for the lawyer in our adver-
sarial system: "A lawyer should represent a client zealously
within the bounds of the law." Ethical Consideration 7-3 am-
plifies the Canon's general edict by directing the lawyer to "re-
solve in favor of his client doubts as to the bounds of the law."
44. EC 2-30.
45. Redmount, Client Counseling and the Regulation of Professional Con-
duct, 26 ST. LOUIS U.L.J.829, 842 (1982) (emphasis in original).
46. Id. a t 843.
47. See Maute, supra n. 2; Redmount, supra n. 45.
Additional provisions of the Code reinforce the perception of

the lawyer as a professional detached from moral and societal
responsibilities beyond those owed to clients and prevailing
law. Ethical Consideration 7-8 suggests "it is often desirable"
to indicate moral concerns to the client, but resolution of the
issues must ultimately rest with the client. The lawyer may
withdraw from representation in nonadjudicatory matters if
the client persists in conduct that is contrary to the lawyer's
judgment and advice." Nowhere, however, does the Code com-
pel-or even suggest-withdrawal if the lawyer objects to the
client's goals on moral, social, or political grounds, so long as
the goals are legal. Finally, EC 7-17 informs lawyers their obli-
gation of loyalty to a client applies only to their discharge of
professional duties and does not extend to personal viewpoints
or positions on public issues.40
The final draft of the American Bar Association's Model
Rules of Professional Conduct does project a more enlightened
perception of the lawyer in counseling and nonadversarial
roles," but is, a t best, ambivalent on moral independence for
lawyers. The rules are more liberal in permitting assertion of
moral principles by lawyers, but do not endorse or impose it.
On one hand, the comment to Rule 1.15 states, "A lawyer has a
qualified freedom of association and ordinarily is not obliged to
assist a client whose character or cause the lawyer regards as
repugnant." In addition, Rule 1.16(b)(2) permits an attorney to
withdraw (assuming he is not ordered by a court to continue)
whenever "the client persists in a course of conduct that is ille-
gal or unjust." On the other hand, Rule 1.15(a) holds "A law-
yer's representation of a client, . . . does not constitute an en-
dorsement of the client's political, economic, social, or moral
views or activities." The comment to that Rule adds, "A poten-
tial client need persuade a lawyer only that the client's cause
has legal merit and not that it also is compatible with the law-
yer's political, social, or moral views." Obviously, the Rules'
drafters are concerned about representation of unpopular cli-
ents. But, as pointed out below, representing unpopular causes
is not equivalent to advocating immoral causes.
The examples provided earlier in this section of lawyers in
action expose the amorality of the adversarial model.61 As is
48. EC 7-8.
49. See also EC 7-19, quoted in n. 15, supra.
50. Maute, supra n. 2; Redmount, supra n. 45, at 854.
51. See nn. 27-40 and accompanying text, supra. See also Part V-A, infra.
implicit in those cases, the model carries real costs to society

and to lawyers (individually and collectively). Watergate was
just one glaring manifestation of the costs. Other costs, though,
run deeper and are more persistent.
By permitting, even requiring, lawyers to leave their mo-
rality outside their adversarial role, we deprive society of an
important means for efficient yet sensitive disposition of legal
problems. By relieving lawyers of any moral responsibility for
results, the adversarial model reduces the chances for achieving
just results. Because wealthy and established interests have a
corner on the lawyer market, the model tends to produce law-
yers satisfied with the status quo and having little incentive to
seek just changes in the law. Finally, the model forces the law-
yer to wear a professional mask, to be dishonest with himself,
thus causing serious damage to the lawyer's personality and
building an impediment to his own self-fulfillment.
These costs of the adversarial model will be further devel-
oped in the following sections offering an alternative model
and developing its advantages.
111. A PROPOSAL-A D U T Y FOR LAWYERS TO EXERCISE

INDEPENDENT MORAL JUDGMENT
The amoral adversarial model should be replaced by one that
requires a lawyer to exercise independent judgment. This section
proposes such an alternative model and explains its basic features,
difficulties, and advantages.
A. Overview
The alternative model calls for the lawyer to gain an under-
standing of the client's facts, following the approach advanced in
Part I, above. That is, the lawyer should be open and accepting,
and gathering the "facts" should include an awareness of the cli-
ent's feelings and motives. The lawyer should then independently
assess the case to determine if she has any moral or social objec-
tions, both in terms of the consequences to the immediate parties
and of the effects on broader policy implications. If so, then she
should carefully prepare for a most sensitive counseling session
and proceed to fully discuss the issue with the client. The client
may satisfy the lawyer's reservations and the representation can
then continue. If, however, the client cannot meet the lawyer's ob-
jections, then the lawyer should explore possible alternatives with
the client. If that fails, then the lawyer should again exercise her
independent judgment and, if the concern persists and is serious,

should refuse to proceed with the case. The judgment should be
based on the lawyer's personal sense of right and justice and not,
as presently exists under the adversarial standard, focused on the
client's interest in being adequately represented.
If the lawyer does decide to represent a client-either after
putting aside his concerns or after deciding that there is nothing
objectionable-then he must be held accountable for his adver-
sarial position. This accountability is a key feature to this model; it
represents symbolically and in practice the demolition of the pro-
tective wall of adversarial amorality. "Accountability" here does
not mean subjection to civil liability or disciplinary action. Rather,
it means the lawyer must be placed in an identity with his client's
cause. Thus the lawyer can be taken to task for the position he
advances and scrutinized by both peers and by the public. He can-
not be allowed the luxury of a professional veil to hide behind.
Furthermore, the lawyer should judge (against moral and so-
cial standards) not only the position he advocates, but also the
means he adopts in representing the client. Thus "zealous repre-
sentation" should be circumscribed not only by the bounds of the
law but also by the lawyer's judgment of the propriety and fairness
of his actions. To reach that judgment, the lawyer should consider,
inter alia, the impact that the questioned action will have on the
truth-finding process and on affected individuals, the availability
of alternative means, the client's input, the action's perceived un-
fairness, and the effects on client c~nfidentiality.~~
Scrutiny of the lawyer's moral judgments should focus on what
he advocates and how, not on whom he represents. The distinction
has practical significance for the lawyer; it means the lawyer
should not judge the client's morality in matters unrelated to the
position advocated. Thus, for example, an attorney may find adul-
tery immoral, but can nevertheless non-judgmentally and unequiv-
ocally counsel an adulterer-divorce client. The lawyer has no busi-
ness morally judging clients on personal or other matters when
they are not essential to the result sought; in the divorce case, the
attorney need assert only that the marriage is irretrievably broken
and need not argue that adultery should be condoned.
This distinction is further illustrated, if unintentionally, by
Monroe Freedman in his major defense of the adversarial system.
52. See Part V, infra.

Freedman assailed an Anthony Lewis column that criticized James

St. Clair for "dangerous arrogance" and arguments that were
"surely wrong" in his defense of Richard Nixon." To Freedman,
St. Clair was just zealously representing his client-within legal
bounds-and was therefore insulated from attack for his participa-
tion in the case. Indeed, St. Clair should not be criticized simply
because he represented Richard Nixon; Nixon was entitled to a
lawyer and St. Clair was entitled to represent him. St. Clair, how-
ever, should be held responsible for positions he advocated that
would have seriously disrupted the sensitive checks and balances
among our governmental branches. (That was the thrust of Mr.
Lewis's criticism.) Mr. Lewis was participating in a public dia-
logue, a moral discourse, that properly forced his readers and Mr.
St. Clair to focus on the substance of the attorney's advocacy and
its societal implications. When St. Clair went to court, he should
have been prepared to defend his position not only to the justices,
but also to himself and to the public. As a citizen and as a promi-
nent commentator, Lewis thus acted responsibly by questioning
the consequences and the propriety of St. Clair's arguments and
professional conduct.
The "moral" or other standards that will ultimately be ap-
plied, however, must necesarily be the lawyer's own. The relevant
"morality" is a personal, subjective one, not objective or externally
imposed. Were it otherwise, bar associations could develop censor-
ship powers, casting a conformity of thought, politics, and culture
on their subjects. Politically or socially dissenting attorneys could
be too easily targeted and lawyers would be even more reluctant
than at present to represent unpopular, nonconforming client^.^
The developments of the fifties and their lingering effects are proof
enough of the real threat posed by overzealous bar committee^.^^
Moreover, few moral issues are reducible to simple black and white
answers.
The subjective standard, then, means the Bar will not play a
traditional role in "enforcing" this professional duty. Practically
speaking, an organization cannot force an individual to follow his
53. M. FREEDMAN, supra n. 15, at 10-11. The Lewis column appeared in the
New York Times, March 18, 1974, at 29, col. 1.
54. See Goldberger, supra n. 26.
55. See, e.g., Konigsberg v. Board of Bar Examiners, 366 U.S. 36 (1961);
Schware v. Board of Bar Examiners, 353 U.S. 232 (1957); Pushinsky v. Board of
Law Examiners, 244 S.E.2d 666 (W. Va. 1980).
own conscience. The Bar can, however, take several steps to mean-
ingfully implement the duty. Section V-B, infra, describes those
steps, as well as other means for developing a model of moral inde-
pendence for lawyers.
The model has limitations. For one, moralindependence with
a subjective standard may simply cause lawyers to change ratio-
nales. Instead of explaining that the advocate's role imposes no
moral obligation, the lawyer could convince himself that the posi-
tion he advocates is morally and socially proper. The only appar-
ent change, then, would be the different rationalization.
That change, however, is a meaningful one. Hopefully, not all
attorneys would be so effective in their self-argument that they
would become moral chameleons changing colors to suit their sur-
roundings. Attorneys would, a t least, be more likely to follow their
conscience, and they would not be able to deflect criticism and dis-
cussion of important issues by raising their advocacy shield. Atten-
tion could thus focus on the relevant moral and societal considera-
tions. (That alone would be a major improvement.).
The criminal process requires a special reference. Most crimi-
nal defense work can be completed without threatening the law-
yer's moral independence. A lawyer representing a criminal de-
fendant normally advocates only that his client is not guilty of the
charges. Certainly in defending a murderer, counsel does not advo-
cate, nor should he be perceived as advocating, murder. When he
believes his clients should not be convicted, when his tactics are
proper, and when his advocacy does not include policy questions
counter to his beliefs, the lawyer will not face a moral issue in jus-
tifying the goal of acquittal.56 This point applies as well in the civil
56. Criminal lawyers, of course, may also view their advocacy in terms of de-
fending a client's constitutional rights, especially under the fifth and sixth amend-
ments. Some lawyer must represent every criminal defendant. Argersinger v.
Hamlin, 407 U.S. 25 (1972); Gideon v. Wainwright, 372 U.S. 335 (1963). There is,
moreover, a difference in what is at stake-a man's liberty and the stigma of a
criminal conviction is balanced against the entire weight of the state's machinery
geared toward obtaining a conviction. That is a considerably different circum-
stance than in a civil dispute where the judicial system does not perceive one side
or the other as rating special protection. See, e.g., Rosenbloom v. Metromedia,
403 U.S. 29, 58 (1971); In re Winship, 397 U.S. 358, 371 (1970). The different
burdens of proof (reasonable doubt vs. preponderance) provide one instance in
which our system compensates the criminal defendant for the high risk he con-
fronts and the imbalance of the process. See also Wasserstrom, supra n. 3, at 12:
Because a deprivation of liberty is so serious, because the
process. For example, a lawyer may believe in strict enforcement of

environmental laws, yet still sincerely represent a company civilly
sued for pollution-if he believes that the company has not vio-
lated pollution standards and that relieving it of liability will not
set an undesirable precedent.
Finally, there are problems generated by certain realities of
law practice. A lawyer's insistence on asserting his independent
moral judgment may result in severed relationships with paying
clients. For some lawyers, money is the driving force in the prac-
tice of law6' and turning away income is not easy for them. Other
lawyers may be operating on a slim profit margin and feel they
cannot afford to turn away any client who holds forth the pros-
pects of a fee. For the attorney in the former class, our profession
should have no compassion, although we can appreciate the di-
lemma faced by the latter. Another, much larger, class of lawyers
could also face difficulties abiding by an indepenent moral code.
Junior partners and associates working in firms and in corporate
counsel offices will not likely feel they have the discretion or the
position to raise moral and social questions with a client and then
follow a course of action based on his own (the lawyer's) percep-
tions of those issues. Too often in a law firm, important moral and
social issues get lost in the firm's hierarchy. An attorney in the
lower eschelons of that hierarchy will understandably be reluctant
to antagonize any of the firm's regular and well-paying clients. He
will be equally reluctant to jeopardize his position and advance-
ment in the firm by appeals to senior partner.
Such problems, while real, do not preclude adoption of a duty
by lawyers to adhere to their own, independent moral standards.
The problems are not unsolvable; Part V, for example, suggests
several means for handling them. Even if those suggestions do not
entirely resolve the problems, advantages to the new standard
would still outweigh any drawback^.^^
prosecutorial resources of the state are so vast, and because, perhaps,

of a serious skepticism about the rightness of punishment even where
wrong-doing has occurred, it is easy to accept the view that it makes
sense to charge the defense counsel with the job of making the best
possible case for the accused-without regard, so to speak, for the
merits.
57. See D. ROSENTHAL, supra n. 7.
58. As David Hoffman put it, "What is wrong is not the less so for being
common." H. DRINKER, LEGALETHICSAPPENDIX E at 346 (1953). quoting Hoff-
B. Advantages
The advantages of moral independence and accountability for
each lawyer are manifold and weighty. The benefits will further
the needs of the legal system, of society generally, of the organized
bar, and of individual lawyers as well.
One of the approach's major benefits should be a fairer and
more just legal system. After all, lawyers and their clients are con-
tinuously making "legal" decisions in law offices and board
rooms.69 Imposing a duty on lawyers to assert themselves morally
would help assure full consideration of societal implications. Thus,
when a cereal company decides whether to fight a federal ruling on
sugar-coated cereals, when a steel company (or steelworkers'
union) looks for loopholes in fair employment laws, when a solvent
debtor seeks to invoke a statute of limitations to avoid repayment
of a loan,60or when a bank fires an employee for insisting on com-
pliance with credit reporting statute^,^' the lawyers representing
these clients should confront them about the moral and socio-eco-
nomic consequences of their conduct. Such confrontations should
occur as soon as the lawyer has the facts. (Ideally, that would be
before the conduct is initiated, but unfortunately clients do not al-
ways consult their attorney before acting.) In any event, this fuller,
more balanced process will produce better decisions.
The legal system should also be fairer in the sense that its
truth-finding process should function more accurately. For exam-
ple, an attorney should consider whether his withholding of certain
evidence or his impeachment of an admittedly honest witness is
compatible with the search for a just solution. With lawyers thus
man's Fifty Resolutions in Regard to Professional Department, Resolution XXX-

111. (Drinker quotes the entire text of Hoffman's Resolutions.)
In 1835, Hoffman authored the first attempt in this country to codify rules on
lawyers' ethics. Although Hoffman was definitely not client centered, his percep-
tion of the lawyer's moral responsibility was consistent with that advocated in
this article. Maute, supra n. 2, at 1053-54. Hoffman's view was attacked in 1854
when the jurist and law professor, George Sharswood, argued that the lawyer was
not morally responsible for his client' causes. Sharsword's position eventually pre-
vailed as states began to adopt formal Codes of Ethics. Id.
59. See T. SHAPFER, LEGALINTERVIEWING AND COUNSELING 1-2 (1976); Sacks,
supra n. 2, at 316-19.
60. See Zabella v. Pakel, 242 F.2d 452 (7th Cir. 1957); nn. 104-06 & accompa-
nying text, infra.
61. See Harless v. First Nat'l Bank in Fairmont, - W. Va. , 246 S.E.2d
270 (1978).
scrutinizing the effects of their tactics and of their conduct of

cases, the system should be more e f f e c t i ~ e . ~ ~
The system's efficiency will be improved by the lawyer's more
searching review of his clients' cases. A client must be able to con-
vince his lawyer that his claim is worth while, not simply that he
will be able to pay a fee. Client awareness of that will deter even
the effort to file frivolous or harrassing civil actions. Elimination of
silly and bad faith cases would relieve court dockets for more de-
serving litigation. Although we presently have rules of professional
responsibility that supposedly regulate the filing of harassing and
frivolous law the rationalizations provided by the advocacy
model render them largely ineffective.
The organized legal profession will also gain by imposing on
its members a duty to assert independent judgment. The Bar
would acquire a much-improved image in the public eye. The pro-
fession has long been lampooned for its amoral pose.sq Although
public perception may a t first glance seem a superficial advantage,
a new image could produce real gains. Lay respect for the fairness
of the legal system can have a positive effect on society's willing-
ness to properly use and to abide by the system. If the public lacks
that respect, then law is perceived as a sham and its effectiveness
is diminished. Greater respect also makes the lawyer's job easier in
individual cases.
Finally, and perhaps most significantly, this model of the mor-
ally independent lawyer makes for happier, healthier, more pro-
ductive lawyers and lawyer-client relationships. Attorneys who be-
lieve in their advocacy and in their clients enjoy their work, while
those who toil in conflict with their beliefs can experience inner
turmoil, self-doubt, and constant struggles with rationalization. A
person who works against his beliefs, or who delegates to others
(such as clients) his moral choices, is unable to achieve self-actuali-
zation. That is, he cannot develop his full potential as a person,
and he flounders in frustration. The lawyer's contradiction of val-
ues and work also damages relationships with those clients whose
62. Abramson, supra n. 3. But see Fried, supra n. 15.

63. ABA CODEOF PROFESSIONAL RESPONSIBILITY EC 7-4 & DR 7-102.
64. E.g., Sandburg, The Lawyers Know Too Much, in C. SANDBURG, SMOKE
AND STEEL 85 (1920); Gawalt, Sources of Anti-Lawyer Sentiment in Mas-
sachusettts, 1740-1840, 14 AM.J. LEGALHIST.283 (1970); Peters, The Screwing of
the Average Man-How Your Lawyer Does It, WASH.MONTHLY 33 (Feb. 1974);
Waltz, The Unpopularity of Lawyers in America, 25 CLEV.ST. L. REV.143 (1976).
cases occasion the conflict. The lawyer's deception of self and

others inhibits communication and deprives the relationship of the
genuineness it needs to be fully effective. In contrast, a lawyer who
acts consistently with his values and uses the model of the the law-
yer-counselor sketched in Part I, above, clears the way to fully de-
velop both himself and his relationships with clients. That theme
pervades the following two sections as they explain the seeming
paradox of how an accepting, client-centered lawyer not only can
be morally independent in his work, but must be.
IV. RELATIONSHIP OF MORAL ACCOUNTABILITY FOR

LAWYERS TO CLIENT-CENTERED COUNSELING
How can a lawyer/counselor be open and accepting with cli-
ents while still insisting on his own moral code? The response is
that a counselor cannot be open and accepting unless he is honest
with himself and with his client. A counseling relationship based
on falsehoods is doomed to failure. An "open and accepting" ap-
proach requires respect for the client and a willingness to listen; it
does not mean that the counselor surrenders all his social, political,
and moral commitments to each client. The relationship can best
be described as a partnership between equals who share both com-
mon goals and responsibility. Thus, as this section explains, client-
centered and morally independent counseling are interdependent
and both demand "honest" counselors.
The concept of the lawyer as a morally independent counselor
follows naturally from the philosophical, psychological, and psy-
chotherapeutic premises of client-centered lawyering. These prem-
ises can be traced to humanist, existential, Taoist, and Judeo-
Christian thinkers, such as Abraham Maslow, Soren Kierkegaard,
Martin Buber, and Carl Rogers.66
Humanistic psychology as formulated by Abraham Maslow
supplies client-centered helping with many of its essential notions
about human nature and personality. Maslow described personal-
ity development in terms of a "hierarchy of needs," in which the
individual is preoccupied with satisfaction of a progression of basic
65. E.g., authorities cited in nn. 1-2, supra and nn. 66, 73-74, infra; J. SAR-
TRE. THEEMOTIONS: OUTLINE OF A THEORY (B. Frechtman, trans.) (1948). See gen-
erally, e.g., R. CORSINI,CURRENT PSYCHOLTHERAPIES 189-94 (2d ed. 1979); A. VAN
KAAM, EXISTENTIAL FOUNDATIONS OF PSYCHOLOGY (1966).
needs.BBHe strives to sate-in order-his physiological, safety and

love needs. Once those are largely filled, then he can move on to
deal with a new discontent and restlessness-the need to do the
best at what he is suited for. Maslow termed this the need for self-
actualization. "This tendency might be phrased as the desire to be-
come more and more what one is, to become everything that one is
capable of bec~ming."~'The aspirations can find expression in any
field-music, art, athletics, teaching, carpentry, and so on. Those
who experience a high need for self-actualization, which means
that their lower needs are largely satisfied, are the most psycholog-
ically healthy people. They are growth-motivated, not deficiency-
motivated, as are those dominated by the lower needs of physiol-
ogy, safety, and love. Unfortunately, only a small percentage of
people presently experience the self-actualizing need to a substan-
tial degree.
Self-actualized persons are accepting of themselves, of others,
and of nature. They accept their own frailties and their discrepan-
cies from the ideal without disruptive concern.B8That is not to say
they are self-sat.isfied; rather, they acknowledge the inevitability of
weakness and human frailty without undue fret or psychological
disturbance. They accept the imperfections of nature and humans.
The psychologically healthy lack defensiveness and labor posturing
and artificiality.
Self-actualizing persons focus more on external problems than
on themselves. That is, they perceive "some mission in life, some
task to fulfill, some problem outside themselves which enlists much
of their energie~."~" They are typically concerned about the basic
and persistnet issues of philosophy and ethics. They rarely get so
close to the trees that they fail to see the forest. They lack petti-
ness and generally look past the trivial. Yet, while maintaining an
external focus, the self-actualizing also make use of solitude and
privacy to a much greater degree than the average person. Such
comfort with solitude follows, perhaps, from their contemplative
nature, their knowledge and acceptance of self, and their
independence.
66. E.g., A. MASLOW,MOTIVATION AND PERSONALITY(1954). See also A. MAS-

LOW, THEFARTHER REACHES OF HUMAN NATURE(1971); A. MASLOW, supra n. 1.
67. A. MASLOW, MOTIVATION AND PERSONALITY 92 (1954).
68. A. MASLOW, THEFARTHER REACHES OF HUMAN NATURE 112-13 (1971).
69. A. MASLOW, supra n. 67, at 211.
That independence or autonomy crosscuts through much of

the self-actualized's make-up. "Since they are propelled by growth
motivation rather than by deficiency motivation, self-actualizing
people are not dependent for their main satisfactions on the real
world, or other people or culture or means to ends or, in general,
on extrinsic satisfactions. Rather, they are dependent for their own
development and continued growth on their own potentialities and
latent resource^."^^
At the same time-and this is crucial to client-centered help-
ing-the interpersonal relations of the self-actualizing are marked
by deep feelings of identification, sympathy, empathy, and affec-
tion for fellow human beings. Self-actualizing persons accept and
respect the autonomy of others, although they can also be impa-
tient with, and disgusted by, stupidity. They generally maintain
deeper and more profound interpersonal relations than do other
adults. The interpersonal relations of the self-actualizing also re-
veal a true democratic character; they are open-minded, egalita-
rian, and free of stereotypical thinking. Thus, in the most
profound implication of this attribute, the growth-motivated "give
a certain quantum of respect to any human being just because he
is a human indi~idual."~~ Self-actualizing individuals also value
and effect honesty and genuineness in their relations with others.
Finally, self-actualizing individuals are distinctly aware of the
value dimension in their life. They have an acute awareness of
what values they, in fact, hold; "these individuals are strongly ethi-
cal, they have definite moral standards, . . . ."72 They indepen-
dently arrive at their views of right and wrong, which follows natu-
rally from their autonomy and independence of thought. Thus, the
self-actualizing do not accept without scrutiny the moral edicts of
religion, law, or other individuals.
Maslow's progression to self-actualization corresponds to the
theories of Lawrence Kohlberg on developmental moral psychol-
ogy. Building on the theories of Jean Piaget,73Kohlberg has identi-
fied three levels of moral development that individuals experience
in six stages from childhood into ad~lthood.~' The levels comprise
70. Id. at 213-14.

71. Id. at 220 (emphasis in original).
72. Id. at 221.
73. E.g., J. PIAGET,
THEMORAL JUDGMENT OF THE CHILD (1932); J. PIAGET,
SIXPSYCHOLOGICAL STUDIES(1968); J. PIAGET,
STRUCTURALISM (1970).
74. See generally L. KOHLBERG, THE PHILOSOPHY OF MORAL DEVELOPMENT
the premoral (or preconventional), conventional role conformity

(conventional), and self-accepted moral principles (postconven-
tional). Each of the levels has two stages.
The premoral level is that of the child and premised on conse-
quences rather than intent. "I can fudge, or even cheat, on my in-
come taxes because the chances of the I.R.S. discovering me are
very small." Thus, good and bad depend on the probability of pun-
ishment, and "moral" decisions are reached without considering
others.
The second level reveals a quantum leap forward in moral de-
velopment as morality shifts away from egocentrism to societal ex-
pectation. Right and wrong are defined by peer group or external
authority. Loyalty, duty, and obedience surface as the key vir-
t u e ~ This
. ~ ~conventional morality is exemplified by strict adher-
ence to law (i.e., legalism), religious dogma (e.g., the Bible or the
Koran), or politico-social doctrine (e.g., Das Kapital, the Sayings of
Chairman Mao). Most lawyers function a t this level, an unsurpris-
ing consequence of legal education's methods and substance76and
the adversarial system's ethics. Lawyers measure their "ethics" by
adherence to the Code of Professional Responsibility, even though
that Code is as much concerned with business regulation as moral-
ity and even though the code encourages the lawyer to assign most
of his moral decisions to his clients.77 Clients and their views, then,
supplement the Code and, in practical effect, constitute lawyers'
most common "external authority." This system of "vicarious re-
p- - -- - --
(1981). The structure described in the text reflects the Piaget-Kohlberg principle
that moral development should be assessed in terms of the reasons given by indi-
viduals at various ages for distinguishing right and wrong and acting on those
distinctions. See Richards, Moral Theory, The Developmental Psychology of
Ethical Autonomy and Professionalism, 31 J. LEG.ED. 359 (1981).
75. E. STEVENS, BUSINESS ETHICS 16 (1979).
76. See generally Richards, supra n. 74; Wasserstrom, supra n. 3. See also
nn. 112-17, infra. The "team play" ethics prevalent among the Nixon administra-
tions's lawyers enmeshed in Watergate starkly illustrates a level I1 morality. See
Wasserstrom, supra. For example, former Attorney General John Mitchell re-
sponded, when asked if he thought he had done anything wrong, "I put my trust
in the role of the President." Hall, Values: Education and Consciousness: The
State of the Art, Challenge in Our Times, in M . SMITH, VALUES CLARIFICATION 193
(19-), What was "right" for Mitchell and the other Watergate lawyers was what
the President, or the "TeamH-the external authority-said was right.
77. See nn. 14-15, 44-47 & accompanying text, supra.
~ponsibility"~~ in moral decision-making is particularly trouble-

some because clients-unlike most other external authorities-do
not prescribe moral choices according to some world view that
takes into account competing values. The problem is compounded
when lawyers do not at least confront clients with moral and social
considerations relevant to client's alternatives.
In the third level of Kohlberg's structure, representing another
quantum leap in moral development, the person's own conscience
emerges as the moral arbiter:
The moral focus shifts again, this time away from group expec-
tations and back to the self. But this is not return to the self-
ishness of level one. Not egotism but autonomy is the rule-the
self as autonomous. I'm less concerned about how others see
me, and more concerned about how I see myself. Ethical deci-
sion-making at this level submits even laws and moral convic-
tions to the test of universal moral principle to which the au-
tonomous self is committed. Ethical principles appeal to
comprehensiveness and logical consisten~y.'~
Thus, Level I11 individuals may look to an external authority for
moral guidance, but they will adhere to the authority only if, after
evaluation and thought, it satisfies the individual's perception of
right.@OUnfortunately, most persons never reach this third level.
78. Noonan, supra n. 3.

79. Stevens, supra n. 75, at 17.
80. David A. J. Richards has snythesized Kohlberg's six stages in the follow-
ing outline:
Level I. Premoral:
Stage 1. Punishment and obedience orientation.
Stage 2. Naive instrumental hedonism.
Level 11. Morality of conventional role conformity.
Stage 3. Good-boy morality of maintaining good relations, approval
by others.
Stage 4. Authority maintaining morality (legalism).
level 111. Morality of self-accepted moral principles.
Stage 5. Morality of contract of individual rights and of democrati-
cally accepted law.
Stage 6. Morality of individual principles of conscience.
Each of these six general stages of moral development is marked
by the different kinds of moral reasons offered for certain courses of
conduct. For example, when asked why to obey rules, the answers di-
vide as follows:
Stage 1. Obey rules to avoid punishment.
Stage 2. Conform to obtain rewards, have favors returned, etc.
The descriptions here of Maslow and Kohlberg should reveal a

great deal of similarity between the characteristics of Maslow's
self-actualizing people and Kohlberg's sixth stage persons. While
Maslow was primarily concerned with personality growth, moral
development plays an integral role in his theories about psycholog-
ical health. Indeed, Maslow referred to his need hierarchy as en-
compassing a value order."' And Kohlberg, although concentrating
on moral development, nevertheless recognized the interrelation-
ship of values and personality. The Maslow and Kohlberg theories
thus share certain basic assumptions and the characteristics ren-
dered by the advanced categories of both Maslow and Kohlberg
overlap in many critical ways. Those shared assumptions and char-
acteristics create a distinct model for the functioning and growth
of lawyer-counselor.
Maslow and Kohlberg constructed their theories on the key-
stone of individual autonomy. That autonomy embraces both the
individual's own independence-in thought, self-determination,
and responsibility-and his sincere and abiding respect for the in-
dependence of others. For Kohlberg's sixth stage, respect for the
Stage 3. Conform to avoid disapproval, dislike by others.

Stage 4. Conform to avoid censure by legitimate authorities and re-
sultant guilt.
Stage 5. Conform to maintain the respect of the impartial spectator
judging in terms of community welfare.
Stage 6. Conform to avoid self-condemnation.
Or, when asked to explain the value of human life:
Stage 1. The value of human life is confused with the value of phys-
ical objects and is based on the social status of physical at-
tributes of its possessor.
Stage 2. The value of a human life is seen as instrumental to the
satisfaction of the needs of its possessor or of other persons.
Stage 3. The value of a human life is based on the empathy and
affection of family members and others toward its
possessor.
Stage 4. Life is conceived as sacred in terms of its place in a cate-
gorical moral or religious order of rights and duties.
Stage 5. Life is valued both in its relation to community welfare and
as a universal human right.
Stage 6. Life is valued as sacred and as representing a universal
human value of respect for the individual.
Richards, supra n. 74, at 367-68.
81. See A. MASLOW, NEWKNOWLEDGE IN HUMAN VALUES (1959);Smith, supra
n. 76, at 234.
individual is the universal value, and Maslow's self-actualizing per-

sons reserve that "certain quantum of respect [for] any human be-
ing just because he is a human i n d i ~ i d u a l . "The
~ ~ respect extends
to a genuine regard and acceptance of others. Through that regard
and acceptance, relations with others achieve their highest level of
honesty and clarity, and therefore, mutual benefit. That regard for
others also forms the moral foundation for the mature person. Be-
cause the morality of decisions is based on their impact on others,
the advanced individual therefore has the capacity to understand
the needs of others, to put himself in their shoes, to empathize.
That true understanding of others, though, can be achieved only if
the individual first knows himself. Accurate self-knowledge pro-
vides him with a ready source of information for understanding
human nature (after all, the mature individual is himself a human)
and permits him to more easily empathize. Self-awareness also en-
ables the individual to separate out his own needs and ego involve-
ment from his moral decisions and his relations with others.
The client-centered psychotherapeutic theories of Carl Rogers
also emphasize self-awareness; knowledge of self and a correspond-
ing honesty with clients combine to provide a cornerstone for effec-
tive c o u n ~ e l i n g . ~The
~ self-undertanding allows the coun-
selor-including the lawyer-counselor-to experience personal
growth while his frankness fosters healthier relations with his cli-
ents and facilitates resolution of moral issues that arise during the
relationship. The results reflect what the philosopher Martin
Buber called "I-Thou" relationships; they are based on felt exper-
iences between persons who bring their whole, genuine selves into
the relti~nship.~'(These contrast with "I-It" relationships, which
would portray the lawyer as a distant professional dealing with the
client in a depersonalized manner.)
Rogers sees self-awareness, self-acceptance, and genuineness
82. A. MASLOW, supra n. 67, at 220 (emphasis in original).

83. C. ROGERS, ON BECOMING A PERSON 61 (1961). See generally authorities
cited in nn. 1, 2, & 10, supra. See also Elkins, The Legal Persona: An Essay on
the Professional Mask, 64 VA.L. REV.735, 754-61 (1978).
84. M. BUBER, BETWEEN MANAND MAN(1947); M. BUBER, 1 ANDTHOU(1923).
Buber, like Maslow and Kohlberg, emphasizes respect for each individual as a
person. A lawyer's approach using Buber's "I-Thou" structure would "reflect
openness, candor, and clarity with the client, fostering mutual understanding and
feeling. In the process of counseling, the lawyer will encourage the client to recip-
rocate with openness and sharing." Redmount, supra n. 45, at 834.
as the ingredients of "congruence." The congruent counselor oper-

ates "without front or facade, openly being the feelings and attrib-
utes which a t that moment are flowing in him."8b He is "able to
live these feelings, be them, and able to communicate them if ap-
p r ~ p r i a t e . " For
~ ~ Rogers, genuineness in the counseling relation-
ship is crucial:
I have found that the more that I can be genuine in the rela-
tionship, the more helpful it will be. This means that I need to
be aware of my own feelings in so far as possible, rather than
presenting an outward facade of one attitude, while actually
holding another attitude a t a deeper or unconscious level. Be-
ing genuine also involves the willingness to be and to express,
in my words, and my behavior, the various feelings and atti-
tudes which exist in me. It is only in this way that the relation-
ship can have reality, and reality seems deeply important as a
first condition. It is only by providing the genuine reality which
is in me, that the other person can successfully seek for the
reality in him.87
These varied client-centered sources reveal recurring themes
of large importance to the lawyer-counselor. They first recognize
an individual cannot reach his full potential unless he is honest
with himself and acts consistently with his values. A failure to look
inward and follow conscience prevents psychological healthiness
and stunts personal development. Second, the mature, actualized
person reaches his own moral conclusions base upon a set of self-
developed and thoughtful values. Third, a relationship between
two (or more) persons cannot reach its potential unless those per-
sons consider each other as equals and are honest with each other.
So in counseling, the individual respect a counselor must maintain
for the client demands the counselor be forthright.
Lawyers have no claim to an exception from these fundamen-
tal precepts. The lawyer must communicate to, and discuss with,
his clients the moral issues. He must resolve for himself the moral
conflicts by applying and following his own moral standards. The
lawyer's personal and professional developemnt and the effective-
ness of his relationships with clients depend on adherence to that
code of conduct. Thus, by being honest with himself and with his
85. C. ROGERS, supra n. 7.

86. Id.
87. Id. at 33.
client, the lawyer experiences personal maturity and solidifies his

relationship with his client. If he merely cedes the moral decisions
to his clients, then his relationships with clients are deprived of
mutuality; the lawyer is no longer an equal and his very identity is
threatened.
The technical and adversarial nature of the legal process, how-
ever, can easily interfere with lawyers' candor in client relations.
The process tempts lawyers to don a "professional mask"B8to con-
ceal (from their clients and themselves) their feelings, insecurities,
and reservations. That is, lawyers will often use the law and its
jargon to maintain a distance from their clients and to erect secur-
ity barriers between themselves and their clients. Further, the
traditional adversarial model provides lawyers with an easy excuse
for role-playing and for suppressing their convictions; they hide
behind their adversarial mask to legitimate stifling their own feel-
ings and mores. When a lawyer submits to these temptations, the
lawyer's psyche becomes confused; he loses touch with his moral
standards; he increasingly loses his ability to remove his "mask"
when leaving the adversarial ~etting.~@The professional mask chills
the lawyer-client relationship. The lawyer acts out a role and cor-
dons himself off from his and the client's feelings.
Self-awareness and self-honesty help the lawyer to overcome
these difficulties. He does not deceive himself or his client. When
he achieves congruence, the lawyer is more a t ease with himself
and with.others; he loses his need for the professional mask. He
avoids the inner-conflict that results from the clash between his
professional model and his feelings as a human being.
For example, recall the previously describedB0representation
by John W. Davis of railroads and coal companies as they callously
dealt with old Davis friends and old widows. Davis, at least early in
his career, suffered great anguish from such cases, but, according
to his biographer, his work for the railroads and coal companies so
favored by West Virginia courts and law "slowly forced him to in-
88. Id. at 108-11; Elkins, supra n. 83.

89. This is especially difficult for trial lawyers, who in litigation are literally
actors creating impressions and emotions in juries and judges. A litigator will
often find it increasingly difficult to turn off his self-imposed intensity and leave
his advocate's cloak in the courtroom. See id. at 742-44; cf. Himmelstein, Reas-
sessing Law Schooling: An Inquiry into the Application of Humanistic Educa-
tional Psychology to the Teaching of Law, 53 N.Y.U.L. REV.514, 531-33 (1978).
90. Notes 31-33 & accompanying text, supra.
ure himself to the injustices wrought against individual^."^' If,

however, Davis had asserted his moral independence, he could
have avoided the anguish of his early professional years and the
desensitizing of his feelings. Both Davis and society would have
benefited.
The gains from self-awareness and candor carry over to the
lawyer's relationship with his clients. When he expresses himself
honestly with acceptance and respect for the client, he fosters simi-
lar responses from the client. Mutual respect and candor result.
The lawyer thus disserves himself and his clients when he sub-
merges matters he finds morally or socially significant.
Thus, while the lawyer should express to his clients his sup-
port and positive regard for them, he must also be open enough to
discuss with them the moral and social implications of their cases.
The discussion should be full, frank, and nonconfronting. A client
may or may not satisfy the attorney's concerns. Only through frank
discussion, however, can the lawyer reconcile his roles as counselor
and as an independent citizen, and only in that way can the advo-
cate maintain touch with his own identity and keep his cases in
perspective.
If the lawyer becomes convinced that serious moral or social
problems are raised, and the client fails to resolve the doubts, then
the honesty and integrity of the lawyer require him to sever the
relationship (or a t least his work on that case). The lawyer should
not advocate that which he believes to be morally or socially
wrong. If he does, he loses his identity and self-respect.
When the lawyer assumes an adversarial role, he is espousing
his client's cause; he is not a counselor attempting to help a client
mature and reach contentment. Though some might conclude that,
therefore, the client-centered model breaks down at this point, the
discussion in this section show that the model requires the lawyer
to be honest and independent at all times-for independent
thought is a key to self-actualization. The counselor who advocates
a cause contrary to his values serves neither his client nor himself.
91. W. HARBAUGH, supra n. 30, at 46. See also the statement by Davis quoted
in the text at n. 33.
Client Centered Counseling
V. IMPLEMENTATION
A. Illustrations
This subsection illustrates the practical operation of moral in-
dependence for lawyers by sketching several examples of lawyers
facing conflicts of conscience. (A following subsection, V-B, will of-
fer more generic standards and suggestions.) The selections range
from the celebrated to the mundane, from John W. Davis and this
century's most famous judicial decision to a simple tort action.
Prior discussionsa has described John W. Davis's schizophre-
nia; during Davis's formative years as a lawyer in West Virginia his
conscience often sided with friends and widows who were mis-
treated by his client, the railroads and coal companies, but he still
felt dutybound to defend the latter to the legal limits. Davis's most
notorious representation, though, was his defense of South Caro-
lina's segregated schools policy in two of the cases decided under
Brown u. Board of Ed~cation."~ In that instance, however, Davis
believed in what he argued; he was convinced South Carolina was
right."' Indeed, he even refused to accept a retainer for his work on
the case.""
Thus, Davis passed the first prong of moral independence-he
believed in the cause he advocated.
Nevertheless, Davis flunked the second prong, at least in my
view. Neither his thoughtful consideration of the moral issues nor
his committment to the cause were enough. I would take him to
task for the substance of his advocacy. Segregation is immoral.
"[Olfficial humiliation of innocent, law-abiding citizens is psycho-
logically injurious and morally evil."* The elder Justice Harlan
recognized that fact in Plessy u. FergusonB7and so have "many
other Americans with responsive consciences" before, during, and
after the rise of "separate but equal."B8Davis, having advocated an
immoral and socially reprehensible position, should have been
92. Notes 31-33 & 90-91 & accompanying text, supra.

93. 347 U.S. 483 (1954). Davis represented the segregated school systems in
Briggs v. Elliott (South Carolina) and Davis v. County School Board of Prince
Edward County (Virginia).
94. W. HARBAUGH, supra n. 30, at 4%.
95. Id. at 483.
96. Id. at 499, quoting Edmund Cahn.
97. 163 U.S. 537, 554-64 (1896) (dissenting opinion).
98. W. HARBAUGH, supra n. 30, at 499.
"held accountable" for the turpitude of his clients cause.99

Other notables offer more positive illustrations. Despite mis-
givings, Clarence Darrow accepted the job as counsel for the Chi-
cago and North Western Railway.'OO His sympathies and princi-
ples, though, lay with the individual, and not with big
corporations. He conducted his business for the railroad accord-
ingly; he diligently attempted to reach fair settlements for injured
workmen and passengers. He justified the additional dollars spent
in those cases by pointing to the good will earned by the company
and the money saved in avoiding litigation.l0' He thus reconciled
his personal beliefs with his employer's concern for profits. When
the railroad's position during the Pullan Strike of 1894 became ab-
horrent to him, he quit.loa Thus Darrow, at least in those circum-
stances, conducted his advocacy according to his principle.
Similarly, Louis Brandeis had a thriving corporate practice in
Boston before ascending to his position on the Supreme Court. De-
spite his representation of large corporate interests, Brandeis be-
lieved in and publicly advocated fair and effective antitrust and
securities laws. Much to the dismay of the Bar, Brandeis refused to
represent positions that were inconsistent with his beliefs about
needed law reform and socio-economic policy. He had his princi-
ples and he adhered to them.logA wealthy clientele did not require
compromise.
Two other, more mundane, examples further illustrate the
need for independent moral scrutiny by lawyers. In Zabella v.
99. Of course, in 1954 Davis would have had considerable public support on
the moral correctness of segregation. That should not, however, diminish the need
for a public dialogue on the morality of his--or any other lawyer's-advocacy.
Indeed, the now generally perceived moral bankruptcy of segregation should rein-
force the principle of accountability. Had lawyers accepted responsibility for the
positions they advocated on behalf of the southern school boards, we may have
been able to avoid much of the protracted resistance to Brown's decree for deseg-
regation "with all deliberate speed."
100. I. STONE,CLARENCE DARROW FOR THE DEFENSE 2 (1941).
101. Id. at 2-3.
102. Id. at 3-5.
103. See J. AUERBACH, supra n. 25, at 65-66-71-72;L. BRANDEIS, The Oppor-
tunity in the Law in BUSINESS-A PROFESSION 329 (1933);M. UROFSKY, A MINDOF
ONEPIECE:BRANDEIS AND AMERICAN REFORM 37-38(1971);Frank, The Legal Eth-
ics of Louis D. Brandeis, 17 STAN.L. REV.683 (1965);Schudson, supra n. 3 at 210-
11; Simon, Homo Psychologicus, supra n. 3, at 496-97.
Pakel,lo4a carpenter sought to recover a debt for a loan he had

made to his former employer. At the time of the loan, the employer
was a financially troubled contractor. Subsequently, he left the
construction business, regained solvency, and prospered. He even-
tually rose to the presidency of a Chicago savings and loan com-
pany. When the carpenter finally pressed his claim, however, the
statute of limitations had run. Although there was no question the
defendant had not repaid the borrowed money, h i still asserted
and prevailed on the statutory bar.
Zabella is not an easy case for defense counsel. He certainly
could not ignore the statute of limitations defense. If he did, he
would be be liable for malpractice and he would end up paying the
debt. Thus, under duties imposed by the Code of Professional Re-
sponsibility and tort law, the lawyer would have to indicate the
availability of the limitations defense. The morally independent
lawyer, however, also has a duty to discuss with his client the ineq-
uity of asserting that defense. If liability is clear and the client has
not suffered from the delay (indeed, Pakel likely profited from it),
why shouldn't he repay the debt? At least that question should
form the basis for discussion. If the client persists, then the lawyer
should refuse to continue on the case if the result would offend his
sense of justice.lO"
One criticism of this approach holds that the lawyer who is
reluctant to assert the statute of limitations defense contradicts a
legislative judgment and contributes to the creation of an "oligar-
chy of lawyers."106The client, of course, decides the matter in the
final analysis, not the lawyer. The lawyer's only decision is whether
asserting the defense would offend his morals and require his with-
drawal from the case. Even aside from that point, however, the
criticism still lacks merit. The legislature has determined that cer-
tain actions should be brought within a fixed time and legitimate
104. 242 F.2d 452 (7th Cir. 1957).

105. David Hoffman's seminal Resolutions (see n. 58, supra), curiously
enough, maintained that the ethical lawyer does not raise a statute of limitations
defense to a valid claim. Resolution XI1 stated:
I will never plead the Statute of Limitations when based on the mere
efflux of time; for if my client is conscious he owes the debt, and has
no other defense than the legal bar, he shall never make me a partner
in his knowery.
Quoted in Maute, supra n. 2, at 1053, n. 9.
106. Seewasserstrom, supra n. 3, at 10-11.
policies lay behind that determination. That is all quite true, but it
is not dispositive. Lawyers are constantly qualifying legislative and
judicial decisions through law office functions. Lawyers interpret
law in their research (often with varying conclusions); they negoti-
ate out-of-court settlements; they advise clients. Each of these
functions can easily produce a result different from that which a
given court might produce. Moreover, legislatures make laws for
application in'the typical fact situations; it is up to lawyer (as well
as courts) to achieve justice under atypical facts.
The final example concerns a tort action filed as a counter-
claim by a lumber company against the Sierra Club and several
environmentalists. The company alleged the environmentalists had
tortiously interfered with its business relationships by communi-
cating with federal agencies, asserting administrative appeals, and
filing a law suit. Each of those efforts by the environmentalists
sought to accomplish a particular application of federal statutes
and regulations. The federal district court dismissed the lumber
company's counterclaim because the environmentalists' activities
were protected by the first amendment's right to petition.lo7 Al-
though the court's opinion does not develop the factual back-
ground, the case at least raises the question whether the company's
real and enduring purpose in pursuing the conterclaim was to chill
the efforts of the plaintiffs (and others) from registering com-
plaints with federal regulatory agencies and from securing enforce-
ment of the relevant statutes.
Given those circumstances, the company's lawyers had a moral
duty to discuss with their client the substance and motivation be-
hind the counterclaim. That discussion should have occurred as
soon as the issue surfaced. If the company's attorneys were aware
of an intent to chill the environmentalists' activities and yet per-
sisted in the counterclaim, or if they ignored the repercussions of a
groundles assult on environmentalists' statutory and constitutional
rights, then those attorneys should be roundly condemned. The
perpetration of such a counterclaim is immoral if it uses the judi-
cial process solely to prevent individuals from fully exercising cer-
tain rights.lo8We should not concede to that company's attorneys
107. Sierra Club v. Butz, 349 F. Supp. 934 (N.D.Calif. 1972).

108. The moral issues in Sierra Club are much the same as those faced by
the lawyers who represented Alabama state officials who filed multiple and sizea-
ble libel claims against the New York Times for its references to the civil rights
the traditional rationalization that they were simply following the

client's orders. They must exercise independent moral judgment.
B. Means for Achieving Moral Accountability

Once the desirability of moral independence for lawyers is rec-
ognized, the difficult task still remains of determining the means
for imposing accountability. Certainly, reliance on traditional disci-
plinary actions, such as suspensions and disbarment, is unrealis-
tic.loS Those procedures would require bar associations to become
roving censor-boards, reviewing the morality of lawyers' represen-
tation in thousands of cases. That is both unworkable and undesir-
able; it could lead to bar associations chilling lawyers' willingness
to represent unpopular client or causes. "Unpopularity" should not
be deemed synonymous with injustice or immorality.l1° Moreover,
as noted above,ll1 the final moral and policy decisions must be
made by the lawyer according to his (or her) own principle. There-
fore, there must be nontraditional, less formal means for giving ef-
fect to moral accountability for lawyers.
Implementation of this new ethic can be achieved through sev-
eral methods. First, the duty to morally assess each case must be
taught at the beginning of each attorney's professional career. That
is, law schools have an obligation to instruct students on moral ac-
countability and teach them how to adhere to it. Second, the Bar
must take formal actions, including (among other things) inserting
into the Code of Professional Responsibility an explicit statement
of the lawyer's moral obligation and standards to guide its applica-
tion. Third, the bar should make every effort to educate the public
campaigns in that state during the late fifties and early sixties. New York Times
v. Sullivan, 376 U.S. 254, 278 n. 18 (1964) (5 libel suits were filed against the
Times in Alabama seeking a total of $3,000,000 in damages). The Supreme Court,
of course, thwarted the officials' efforts in Sulliuan when it established the "actual
malice" defense to libel actions brought by public office-holders, Sulliuan and its
analogs were stark examples of an attempt to use the judicial process-where the
lawyers could feel immunized by their adversarial role-to choke the exercise by
others of their constitutional rights.
109. There is, however, some use to be made of the traditional enforcement
measures in reviewing lawyers' tactics, or means, in the representation of clients.
See, e.g., Thurman, Limits to the Adversary System: Interests that Outweigh
Confidentality, 5 J . OF THE LEG.PROF.5 (1980) (dealing with ABA Discussion
Draft of Model Rules of Professional Conduct).
110. See Goldberger, supra n. 26.
111. Part 111-A.
The Journal of the Legal Profession
about this new perception of the lawyer's role and invite public
dialogue on positions advocated by lawyers.
Legal education bears much of the responsibility for lawyers'
attitudes.l12 Professional school is, after all, a formative stage in
any career. In fact, several commentators have attributed the
amorality of lawyers to the methods and messages of law school.113
Generally, students are not taught to consider the moral or social
consequences of undertaking a case. Law is, for the most part,
learned as an academic exercise without examination of human el-
ement~,~'" and lawyers are seen as fungible advocates for parties on
either side of an issue."" ,
There has, however, been some effort to address these
problems. Law school clinics have put law in a realistic setting,
have forced students to analyze what they are about, and have
given them the means for self-analysi~.~'~ In addition, several law
professors have recognized the moral issues raised here, thus evi-
dencing that some academicians have exposed students to the
problems.'17
More is needed, though. Law school textbooks must build in
moral and social issues. Professors should develop those issues in
substantive courses, not just in skills training and professional re-
sponsibility study. Courses in interpersonal skills must instruct
112. E.g., Elkins, Moral Discourse and Legalism in Legal Education, 32 J.

LEG.ED. 11 (1982); Himmelstein, supra n. 89.
113. E.g., J. AUERBACH, supra, n. 25, at 74-101; Elkins, supra n. 112; Wasser-
strom, supra n. 3.
114. Elkins, A Humanistic Perspective in Legal Education, 62 NEB.L. REV.
494 1983); Himmelstein, supra n. 89, at 533-39.
115. For example, law school moot court programs routinely have students
switch sides in their oral arguments, and teachers using Socratic dialogue often
have students articulate one side of the case and then the other. While there may
be pedagogical utility to these techniques-good lawyers do need to understand
opposing arguments-legal education rarely, if ever, stops to examine whether the
student has personal or moral objections to the position he or she is forced to
advocate. Indeed, these techniques are commonly defended with explicit rational- .
izations that the lawyer does not choose his clients, but takes them as they come.
At any rate, the resulting message perceived by students after three years of expo-
sure to such techniques is clear: lawyers do not have a moral responsibility for the
causes they advocate on behalf of clients.
116. E.g., Goodpaster, supra] n. 2; Meltsner & Schrag, Scenes From a Clinic,
127 U. PA.L. REV.1 (1978).
117. See, e.g., the articles by Professors Abramson, Flynn, Noonan, ShafTer,
& Wasserstrom, supra n. 3.
students in how to counsel clients on matters that present dilem-

mas of conscience for the lawyer.
Bar associations must also shoulder the burden for developing
morally independent lawyers. The Bar should, as an institution,
commit its members to exercise greater self-scrutiny in their repre-
sentation of clients. This commitment should be met both for-
mally, by adopting rules of professional responsibility, and infor-
mally, by educating the public on the lawyer's obligations.
On the formal level, the Bar should develop ethical canons
that explicitly obligate lawyers to independently assess the conse-
quences of each of their undertakings. The canons should incorpo-
rate standards to help lawyers make that assessment. Those stan-
dards should address both the means and ends of client
representation. For example, in deciding whether to adopt a partic-
ular litigation or negotiation tactic, the lawyer should consider:
-the extent to which the tactic will disguise the truth or pre-
vent the fact-finder from determining the truth;
-the fairness to opposing parties of using the tactic;
-the existence of alternative means that may accomplish the
lawyer's purpose in a manner less disruptive of the truth-find-
ing process.l18
And in determining to advocate a particular result sought by a cli-
ent, the lawyer should weigh:
-the extent to which the result will cause an injustice to the
opposing party;
-the potential that the result will set a precedent that will be
morally, socially, or economically unjust;
-the extent to which pursuit of the result will chill other indi-
viduals from exercising important rights;
-the extent to which any possible injustices are offset by the
client's own particular needs or circumstances;
-the availability of alternatives that would satisfy the client's
118. The ABA's Model Rules of Professional Conduct incorporte these con-
cerns to a much greater degree than the current CPR. Most notably, the MRPC
have adjusted the traditional adversarial role by requiring disclosure of a client
confidence "to prevent death or serious bodily harm to another person" (Rule
1.7(b)); by requiring candor of the lawyer in his representations to a court (Rule
3.1); by stating that the lawyer shall not "make a knowing misrepresentation of
fact" (Rule 3.l(a)(2)); and by requiring lawyers in both civil and criminal cases to
reveal a client's perjury, even when the revelation would disclose a lawyer-client
communication (Rules 3.l(a)(3) & 3.l(b)). See generally Thurman, supra n. 109.
concerns without risking undesirable precedents, chilling ef-

fects, o r other injustice^.^'^
The Bar can enhance the effectiveness of these standards by sanc-

tioning law firms that retaliate against a partner or associate who
has acted on his (her) cons~ience.'~~ In addition, legislation should
protect lawyers who work for corporations or other entities outside
the Bar's regulatory control.
The Bar should also act on an informal level to implement ac-
countability for lawyers. Primarily, such action should focus on ed-
ucation. Obviously, the Bar should inform its members of their
professional responsibilities. Through its own CLE programs and
law journals, the Bar has the means available to teach moral ac-
countability for lawyers. In addition, the Bar should fully inform
the public of this new perception of professional ethics.
Educating the public is important for several reasons. Public
awareness acts as a check on lawyers; the public will expect moral
self-scrutiny and lawyers, to maintain their practice, must respond.
That expectancy also makes it easier for lawyers to assert their
principles. Clients will understand that their lawyers will have lim-
itations on their capacity to accept and to conduct cases. Clients'
greater understanding of that will allow lawyers to more easily
raise and discuss their personal reservations. Moreover, the public
perception of a morally committed bar will enhance the bar's
standing in the community and that, in turn, aids lawyers in their
ability to perform efficiently and serve the public. Finally, public
awareness would encourage a constructive dialogue from the pub-
lic. Editorials and letters to the editor, for example, can provide a
119. Notes 14-15, 44-50 & accompanying text, supra, discuss the current
ABA rules. See also Mauts, supra n. 2; Redmount, supra n. 45.
120. Recent common law developments qualifying the at-will employment
doctrine may a t lest arguably, already provide associates with such protection.
Several states now hold that employers may not discharge employees for reasons
that violate public policy. E.g., Novosel v. Nationwide Ins. Co., 721 F.2d 894 (3rd
Cir. 1983) (applying Pa. law); Harless v. First Nat'l Bank in Fairmont, - W. Va.
-, 246 S.E.2d 270 (1978); Brockmeryer v. Dun & Bradstreet, 113 Wis. 2d 561,
335 N.W.2d 561 (1983). See generally, e.g., Pierce, Mann, & Roberts, Employee
Termination a t Will: A Principled Approach, 28 VILL.L. REV.1 1982); Note, De-
fining Public Policy Torts in At-Will Dismissals, 34 STAN.L. REV. 153 (1981).
Certainly, if the Bar did have as an ethical rule that lawyers must assert their
moral independence, then a lawyer discharged for asserting his values would have
a very strong claim that an identifiable "public policy" has been violated.
forum for airing views about the propriety of litigation activities.

Commentators will be encouraged to raise issues about the social
and moral consequences of legal actions. Such exchanges should be
helpful to attorneys in asserting their own and their colleagues'
actions.
CONCLUSION
The traditional role of lawyers as amoral advocates with no
responsibility for the positions they assume on behalf of clients
must now be rejected. The role damages the effectiveness of the
judicial process. It demeans and psychologically harms lawyers by
prompting them to undertake causes inconsistent with their per-
sonal values. Thus, society and lawyers will both benefit from the
imposition of a duty upon lawyers to independently assess the
moral and social implications of their undertakings. When a law-
yer's assessment concludes that the case is inconsistent with his
values or beliefs, then he has a further duty to discontinue his
representation.
While lawyers should assert their principles, they should also
follow a "client-centered" approach to their professional relations.
That requires lawyers to accept and respect clients, to empathize
with them, and to help them reach resolutions identified by the
client's own priorities.
Although these two perceptions of the lawyer's role are seem-
ingly in conflict, they are actually interdependent. Effective coun-
seling requires the lawyer to be honest with both himself and with
the client. Thus, he must constantly analyze his own motives and
perceptions. If his self-analysis indicates that he has serious moral
or social reservation about the client's goals, then the lawyer must
discuss those concerns with the client. If the attorney does not
raise and discuss his reservations with the client, then the lawyer
will be forced to either stifle his convictions or subtlely manipulate
the client. Either way, the lawyer is not being honest, the mutual
respect will inevitably evaporate, and the strength of the profes-
sional relationship will be broken. If the lawyer suppresses his true
feelings, he may come to resent the client and may develop self-
contempt for his own moral duplicity. If the lawyer tries to manip-
ulate the client, then the client will house resentment. Thus hon-
esty is the solution.
The Bar and legal education must take steps to implement a
professional ethic that requires lawyers to independently assess the
moral and social implications of their professional undertaking.

Law Schools need to incorporate instruction on the issue in both
substantive courses and in the teaching of professional responsibil-
ity. Skills training must equip students with the means of self-
analysis and the tools to counsel with the client on such sensitive
matters as moral issues.
Bar associations need to formally articulate the lawyer's duty
to assert his principles and accept "responsibility" for what he ad-
vocates. Standards need to be developed to guide the lawyer in as-
sessing his case. The Bar must also adopt measures to protect from
employer retaliation those law firm-lawyers who do assert their
principles. Finally, the Bar should educate its members and the
public about the lawyer's moral and societal duties.
These measures would facilitate better lawyer-client relations
and would permit lawyers to maintain their principles and their
self-respect. Lawyers would thereby find a corresponding enhance-
ment of their professional status and society would gain a more
effective legal system.

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Client Centered Counseling and Moral

Accountability for Lawyers

* Associate Professor of Law, West Virginia University.

puts the attorney in the role of an open, accepting helper and

monplace, to illustrate how the proposed duty can operate in prac-

I. A MODEL FOR THE LAWYER-CLIENT RELATIONSHIP

5. Note 2, supra, lists a sampling of such authorities.

respects him as a person, the client will be more inclined to trust

7. E.g., C. ROGERS, ON BECOMING A PERSON166-81 (1961) (client-centered

cause he operates with fuller information. Thus the client is more

9. Part 111, infra. See Abramson, supra n. 3.

are common among lawyers). He may be materialistically acquisi-

above description leaves open, however, what the lawyer's moral

11. TRADITIONAL PERCEPTION OF THE LAWYER'S MORAL

14. ABA CODEOF PROFESSIONAL RESPONSIBILITY Canon 7. See also id. EC 7-

16. Shaffer, supra n.3.

20. Id. at 13.

ception of the lawyer's role has a venerable history. The classic

Later in that century, this view was acted out in America by

26. Quoted in Schudson, supra n. 3, at 205-06. See also Goldberger, The

By the turn of the century, the adversarial approach was the

Early in Davis' career, for example, Davis represented rail-

192-93; Shaffer, The Moral Theology of Atticus Finch, 42 U . PI^. L. REV.181,

The traditional view prevails today. Chief Justice Burger, for

The practicing bar generally endorses that view.36 The bar's

believe-the lawyer is a mere techni~ian."~~ And, "every person

[Tlhe behavior of the lawyers involved in Watergate was sim-

Additional provisions of the Code reinforce the perception of

implicit in those cases, the model carries real costs to society

111. A PROPOSAL-A D U T Y FOR LAWYERS TO EXERCISE

independent judgment and, if the concern persists and is serious,

52. See Part V, infra.

Freedman assailed an Anthony Lewis column that criticized James

process. For example, a lawyer may believe in strict enforcement of

prosecutorial resources of the state are so vast, and because, perhaps,

man's Fifty Resolutions in Regard to Professional Department, Resolution XXX-

scrutinizing the effects of their tactics and of their conduct of

62. Abramson, supra n. 3. But see Fried, supra n. 15.

cases occasion the conflict. The lawyer's deception of self and

IV. RELATIONSHIP OF MORAL ACCOUNTABILITY FOR

needs.BBHe strives to sate-in order-his physiological, safety and

66. E.g., A. MASLOW,MOTIVATION AND PERSONALITY(1954). See also A. MAS-

That independence or autonomy crosscuts through much of

70. Id. at 213-14.

the premoral (or preconventional), conventional role conformity

~ponsibility"~~ in moral decision-making is particularly trouble-

78. Noonan, supra n. 3.

The descriptions here of Maslow and Kohlberg should reveal a

Stage 3. Conform to avoid disapproval, dislike by others.

individual is the universal value, and Maslow's self-actualizing per-

82. A. MASLOW, supra n. 67, at 220 (emphasis in original).

as the ingredients of "congruence." The congruent counselor oper-

85. C. ROGERS, supra n. 7.

client, the lawyer experiences personal maturity and solidifies his

88. Id. at 108-11; Elkins, supra n. 83.

ure himself to the injustices wrought against individual^."^' If,

92. Notes 31-33 & 90-91 & accompanying text, supra.

"held accountable" for the turpitude of his clients cause.99

Pakel,lo4a carpenter sought to recover a debt for a loan he had