Maurice A. Deane School of Law at Hofstra University Maurice A. Deane School of Law at Hofstra University

Scholarly Commons at Hofstra Law Scholarly Commons at Hofstra Law

Hofstra Law Faculty Scholarship

Spring 1978

Lawyer Doesn't Always Know Best - The Client's Wishes Must Not Lawyer Doesn't Always Know Best - The Client's Wishes Must Not

Be Ignored because of the Profession's Love Affair with Its Own Be Ignored because of the Profession's Love Affair with Its Own

Mysteries Mysteries

Monroe H. Freedman Maurice A. Deane School of Law at Hofstra University

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Recommended Citation Recommended Citation Monroe H. Freedman, Lawyer Doesn't Always Know Best - The Client's Wishes Must Not Be Ignored because of the Profession's Love Affair with Its Own Mysteries, 7 Hum. Rts. 28 (1978) Available at: https://scholarlycommons.law.hofstra.edu/faculty_scholarship/467

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The client's wishesmust not be ignoredbecause of the profes-sion's love affair withits own mysteries

by Monroe H. Freedman

It is a singularly good thing, I think,that law students, and even somelawyers and law professors, arequestioning with increasing fre-quency and intensity whether"professionalism" is incompatiblewith human decency-asking, thatis, whether one can be a goodlawyer and a good person at thesame time. I have a special interestin that question because at leastone perceptive critic, ProfessorJohn T. Noonan, Jr., has drawn theinference from my book onlawyers' ethics1 that I do notbelieve that a decent, honest per-son can practice criminal law orteach others to do so. 2

Professor Noonan draws that in-ference, in substantial part, frommy conclusion that a criminaldefense lawyer will sometimes becompelled knowingly to present aclient's perjury to the court, and toargue it in summation to the jury. Ibase that conclusion on such con-siderations as the sixth-amendmentright to counsel, the fifth-amendment privilege against self-incrimination, and the obligationof confidentiality, under which theattorney induces the client toreveal all relevant informationwith assurances that the attorneywill not act upon that informationin a way that might injure theclient. Thus I might ask rhetorical-ly whether Professor Noonanbelieves that a good person can in-duce another to rely uponassurances of confidentiality, andthen betray those confidences. Thedifficulty, of course, is that thelawyer is frequently faced withconflicting moral obligations: here,either to participate knowingly inthe presentation of perjury, or elseto violate the client's trust whichthe lawyer has induced.3

In view of that kind of moraldilemma, a cynic might concludethat one cannot be a good lawyerand a good person at the sametime. I do not believe, however,that one can properly be chargedwith immorality because one is

presented with a moral dilemma. Ifthat were so, the human conditionwould be one of guilt withoutrealistic free will, On the contrary,I believe that in such cir-cumstances, the only immoralitylies in failing to address and toresolve the moral conflict in a con-scientious and responsible manner.

At the same time that I discussthe issue of professionalism andpersonal moral responsibility, I willalso consider an integrally relatedquestion, one that is often ex-pressed in terms of whether it is thelawyer or the client who should ex-ercise "control" in the relationship

between them. As it is frequentlvput: is the lawyer iust a "hedgun," or must the awyer 'obey hisown conscience and not thal of hisclient?'

4

Voicing a viewpoint prevaient inthe profession, lawyers sometimesuse the phrase "client control"(that is, control of the client by thelawyer) in expressing their profes-sional pride in maintaining the pro-per professional relationship. In alaw school commencement ad-dress titled "Professionalism inLawyering," the Chief judge of afederal Court of Appeals, Clement

A LAWYER DONTAlired Gescheidt

F. Haynsworth, stressed the impor-tance of professional competencein handling a client's affairs; butChief Judge Haynsworth went onto say that of even "greatermoment" than competence on thepart of a lawyer is the fact that"he serves his clients without beingtheir servant. He serves to furtherthe lawful and proper objective ofthe client, but the lawyer mustnever forget that he is the master.He is not there to do the client'sbidding. It is for the lawyer todecide what is morally and legallyright, and, as a professional, hecannot give in to a client's attempt

to persuade him to take someother stand. . . [T]he lawyer mustserve the client's legal needs as thelawyer sees them, not as the clientsees them. During my years ofpractice. . . I told [my clients]what would be done and and firm-ly rejected suggestions that I dosomething else which I felt im-proper...."5Surely those are striking phrases tochoose to describe the relationshipof lawyer and client-the lawyer is"the master" who is "to decidewhat is morally.. right," and whoserves the client's needs, but only"as the lawyer sees them, not as

LAYSK W BEST

the client sees them." Even morestriking is the phrase once used byCharles Halpern, a sensitive anddedicated public interest lawyer;as between the lawyer and theclient, he observed, it is the lawyerwho holds "the whip hand." 6

Thurman Arnold, who was aprominent practitioner and also afederal appellate court judge, helda philosophy similar to judgeHaynsworth's. As described withapproval by former Supreme CourtJustice Abe Fortas, Arnold did notpermit a client "to dictate or deter-mine the strategy or substance ofthe representation, even if theclient insisted that his prescriptionfor the litigation was necessary toserve the larger cause to which hewas committed."

7

Critics of the legal professionargue not that such attitudes andpractices are elitist and pater-nalistic, but rather that not enoughlawyers abide by them.8 In an arti-cle on "Lawyers as Professionals:Some Moral Issues," ProfessorRichard Wasserstrom recalls JohnDean's list of those involved in theWatergate cover-up. Dean hadplaced an asterisk next to the nameof each of the lawyers on the list,because he had been struck by thefact that so many of those im-plicated were lawyers. ProfessorWasserstrom concludes that the in-volvement of lawyers in Watergatewas "natural, if not unavoidable,"the "likely if not inevitable conse-quence of their legal accultura-tion." Indeed, on the basis ofWasserstrom's analysis, the onlymatter of wonder is why so manyof those on John Dean's list werenot lawyers. What could possiblyhave corrupted the non-lawyers tosuch a degree as to have led theminto the uniquely amoral and im-moral world of the lawyers? "For atbest," Wasserstrom asserts, "thelawyer's world is a simplified moralworld; often it is an amoral one;and more than occasionally, per-haps, an overtly immoral one."9

Professor Wasserstrom holdsthat the core of the problem is pro-fessionalism and its concomitant,role-differentiated behavior. Roledifferentiation refers, in this con-text, to situations in which one'smoral response will vary depend-ing upon whether one is acting in apersonal capacity or in a profes-sional, representative one. AsWasserstrom says, the "nature ofrole-differentiated behavior ...often makes it both appropriateand desirable for the person in a

The lawyer doesn't always know best

"Far too oftenprofessional attitude

serves to strippeople of autonomy

and power"

particular role to put to one sideconsiderations of various sorts-and especially various moral con-siderations-that would otherwisebe relevant if not decisive."1"'

An illustration of the "morallyrelevant considerations" Wasser-strom has in mind is the case of aclient who desires to make a willdisinheriting her children becausethey opposed the war in Vietnam.Professor Wasserstrom suggeststhat the lawyer should considerrefusing to draft the will becausethe client's reason is a "bad" one. 1

But is the lawyer's paternalismtoward the client preferable-morally or otherwise-to theclient's paternalism toward herchildren?

We might all be better served,says Wasserstrom, if lawyers wereto see themselves less as subject torole-differentiated behavior andmore as subject to the demands of"the" moral point of view.12 Is itreally that simple? What, for exam-ple, of the lawyer whose moraljudgment is that disobedient andunpatriotic children should bedisinherited? Should that lawyerrefuse to draft a will leaving be-quests to children who opposedthe war in Vietnam? If the responseis that we would then have a desir-able diversity, would it not be bet-ter to have that diversity as areflection of the clients' view-points, rather than of the lawyers'?

In another illustration, Wasser-strom suggests that a lawyershould consider refusing to advisea wealthy client of a tax loopholeprovided by the legislature for onlya few wealthy taxpayers.13 If thatcase is to be generalized, it seemsto mean that the legal professioncan properly regard itself as anoligarchy whose duty is to nullifydecisions made by the people'sduly elected representatives.1 4

That is, if the lawyers believe thatparticular clients (wealthy or poor)should not have been given certainrights, the lawyers are morallybound to circumvent the legisla-

Monroe Freedman is senior lit-igating partner at Bartel, Engelmanand Fishman, New York City.

tive process and to forestall thejudicial process by the simpledevice of keeping their clients inignorance.

Nor is that a caricature of Was-serstrom's position. The role-dif-ferentiated amorality of the lawyeris valid, he says, "only if the enor--mous degree of trust and confi-dence in the institutions them-selves [that is, in the legislative andjudicial processes] is itself justi-fied." And we are today, he asserts,"certainly entitled to be quiteskeptical both of the fairness andof the capacity for self-correctionof our larger institutional mech-anisms, including the legal sys-tem."" 5 If that is so, would it not bea non-sequitur to suggest that weare justified in placing that sametrust and confidence in the moral-ity of lawyers, individually or col-lectively?

There is "something quite seduc-tive," adds Wasserstrom, aboutbeing able to turn aside so manyostensibly difficult moral dilem-mas with the reply that my job isnot to judge my client's cause, butto represent his or her interest.1 6

Surely, however, it is at least asseductive to be able to say, "Mymoral judgment-or my profes-sional responsibility- requires thatI be your master. Therefore, youwill conduct yourself as I directyou to."

A more positive view of role-dif-ferentiated behavior was providedin an article in the New York Timesabout the tennis star, ManuelOrantes:

"He has astounded fans by ap-plauding his opponent's good shotsand by purposely missing a pointwhen he felt that a wrong call by alinesman has hurt his opponent.

'I like to win,' he said in an inter-view, 'but I don't feel that I havewon a match if the calls werewrong. I think if you're playingDavis Cup or for your country itmight be different, but if I'm play-ing for myself I want to know Ihave really won."' 17

In other words, one's moral respon-sibilities will properly vary depend-ing, among other things, uponwhether one has undertaken spe-cial obligations to one's team-mates or to one's country.

Monroe H. Freedman

Taking a different illustration,,et us suppose that you are goingabout some pressing matter andyour arm is suddenly seized by anold man with a long gray beard, awild look in his eye, and what ap-pears to be an enormous dead birdhanging around his neck, and heimmediately launches into abizarre tale of an improbableadventure at sea. If he is a strangerand you are alone on a poorlylighted street, you may well call thepolice. If he is a stranger butyou decide that he is harmless, youmay simply go on to your otherresponsibilities. If he is a friend ora member of your family, you mayfeel obligated to spend some timelistening to the ancient mariner, oreven to confer with others as tohow to care for him. If you are apsychiatric social worker, you mayact in yet some other way, and thataction may depend upon whetheryou are on duty at your place ofemployment, or hurrying so thatyou will not be late to a wedding-and in the latter case, your deci-sion may vary depending uponwhether the wedding is someoneelse's or your own.

Surely there can be no moral ob-jection to those radically differentcourses of conduct, or to the factthat they are governed substan-tially by personal, social and pro-fessional context, that is, by role-differentiation. One simply cannotbe expected, in any rational moralsystem, to react to every strangerin the same way in which one maybe obligated to respond to a mem-ber of one's family or to a friend.

In an interesting and thought-provoking article, ProfessorCharles Fried has analogized thelawyer to a friend-a "special-pur-pose" or "limited-purpose" friend"in regard to the legal system." Thelawyer is seen to be "someone whoenters into a personal relation withyou-not an abstract relation asunder the concept of justice." Thatmeans, Fried says, that "like afriend, [the lawyer] acts in your in-terests, not his own; or rather headopts your interests as his own." 18

The moral foundation of Fried'sjustification of that special-pur-pose friendship is the sense of self,

the moral concepts of "personal-ity, identity and liberty." He notesthat social institutions are so com-plex that without the assistance ofan expert adviser, an ordinary layperson cannot exercise the per-sonal autonomy to which he or sheis morally and legally entitledwithin the system. "Without suchan adviser, the law would imposeconstraints on the lay citizen (un-equally at that) which it is not en-titled to impose explicitly." Thelimited purpose of the lawyer'sfriendship, therefore, is "topreserve and foster the client'sautonomy within the law."'

Similarly, Professor Sylvia A.Law has written, "A lawyer has aspecial skill and power to enableindividuals to know the optionsavailable to them in dealing with aparticular problem, and to assistindividuals in wending their waythrough bureaucratic, legislativeor judicial channels to seek vindi-cation for individual claims and in-terests. Hence lawyers have a spe-cial ability to enhance humanautonomy and self-control." Sheadds, however, that "far too often,professional attitude, rather thanserving to enhance individual auto-nomy and self-control, serves tostrip people of autonomy andpower. Rather than encouragingclients and citizens to know andcontrol their own options and lives,the legal profession discouragesclient participation and control oftheir own legal claims. "2(

The essence of Professor Fried'sargument does not require themetaphor of friendship, other thanas an analogy in justifying thelawyer's role-differentiation. It wasinevitable, however, that Fried'scritics would give the metaphor offriendship the same emphasis thatFried himself does. Perhaps inad-vertently, therefore, they miss theessential point he makes, thathuman autonomy is a fundamentalmoral concept that must deter-mine, in substantial part, theanswers that we give to some ofthe most difficult issues regardingthe lawyer's ethical role.

Thus, in a response to Fried, Pro-fessors Edward A. Dauer and Ar-

thur Allen Leff make some percep-tive and devastating commentsabout the limited-purpose logic ofFried's metaphor of friendship. Atthe same time, however, Dauer andLeff express their own views of thelawyer's role and character, viewswhich I find to be both cynical andsuperficial. They describe an "in-variant element" of the lawyer-client relationship in the followingterms:

"The client comes to a lawyer tobe aided when he feels he is beingtreated, or wishes to treat someoneelse, not as a whole other person,but (at least in part) as a threat orhindrance to the client's satisfac-tion in life. The client has fallen, orwishes to thrust someone else, intothe impersonal hands of a just andangry bureaucracy. When onedesires help in those processeswhereby and wherein people aretreated as means and not as ends,then one comes to lawyers, to us.Thus, if you feel the need for atrope to express what a lawyerlargely is, perhaps this will do: alawyer is a person who on behalf ofsome people treats other peoplethe way bureaucracies treat allpeople-as nonpeople. Mostlawyers are free-lancebureaucrats...."

21

Despite that caricature, Dauerand Leff manage to conclude that"a good lawyer can be a good per-son." They do so, however, bydefining "a good person" in limitedterms: "In our view the lawyerachieves his 'goodness' by being-professionally-no rottener thanthe generality of people acting, soto speak, as amateurs." 22 The bestthat can be said for that proposi-tion, I believe, is that it is not likelyto stop students with any moralsensitivity from continuing to askwhether it is indeed possible for agood lawyer to be a good person.

The most serious flaw in Pro-fessor Fried's friendship metaphoris that it is misleading when themoral focus is on the point atwhich the lawyer-client relation-ship begins. Friendship, like love,seems simply to happen, or togrow, often in stages of which wemay not be immediately con-

The lawyer doesn't always know best

The choice of clientis an aspect of

the lawyer's free will.It can be subjected

to moral scrutinyand criticism

scious. Both in fact and in law,however, the relationship of lawyerand client is a contract, which is asignificantly different relationship,formed in a significantly differentway.

2 3

Unlike friendship, a contract in-volves a deliberate choice by bothparties at a particular time. Thus,when Professor Fried says that thelawyer's moral liberty "to take upwhat kind of practice he choosesand to take up or decline whatclients he will is an aspect of themoral liberty of self to enter intopersonal relations freely," 24 theissue of the morality of the deci-sion to enter the relationship isblurred by the amorphous mannerin which friendships are formed.Since entering a lawyer-client con-tract is a more deliberate, con-scious decision, that decision canjustifiably be subjected to a moresearching moral scrutiny.

In short, a lawyer should indeedhave the freedom to choose clientson any standard he or she deemsappropriate. As Professor Friedpoints out, the choice of client isan aspect of the lawyer's free will,to be exercised within the realm ofthe lawyer's moral autonomy. Thatchoice, therefore, cannot properlybe coerced.

Contrary to Fried's view, how-ever, it can properly be subjected tothe moral scrutiny and criticism ofothers, particularly those who feelmorally compelled to persuade thelawyer to use his or her professionaltraining and skills in ways that thecritics consider to be more consis-tent with personal social or profes-sional ethics. 25

As I have stressed elsewhere,however, once the lawyer hasassumed responsibility to repre-sent a client, the zealousness ofthat representation cannot betempered by the lawyer's moraljudgments of the client or of theclient's cause.26 That point is of im-portance in itself, and is worthstressing also because it is one ofthe considerations that a lawyershould take into account in makingthe initial decision whether toenter into a particular lawyer-client relationship.27

In disagreeing with ProfessorWasserstrom's criticism of role-dif-ferentiation, I did not mean to sug-gest that role-differentiation hasnot produced a degree of amoral-itv, and even immorality, in thepractice of many lawyers. Theproblem, as I see it, is expressed inthe news item I quoted earlier re-garding Manuel Orantes. Playingfor himself, Mr Orantes has earnedan enviable reputation, not onlyfor his athletic prowess, but alsofor his good sportsmanship -if youwill, for his morality in his relationswith his adversaries. Yet when heplays with teammates and for hiscountry, he adopts different stan-dards of conduct

I think that Mr. Orantes is wrong,in a way that many lawyers fre-quently are wrong. I do not meanthat in Davis Cup play he is notbound by special, voluntarily-assumed obligations to others. Onthe contrary, he is bound by hisrole as teammate and countrymanto accept the decision of his team-mates, which may well be thateach player should play to win,without relinquishing any advan-tage that the rules of the game andthe calls of the judges allow.Where Orantes is wrong, however,is in preempting that decision, inassuming that their decision is thatwinning is all. Perhaps if he actual-ly put the choice to them, Orantes'teammates would decide that theywould prefer to achieve, for them-selves and for their country, thekind of character and reputationfor decency and fairness thatOrantes has earned for himself.Perhaps they would not decidethat way. The choice, however, istheirs, and it is a denial of theirhumanity to assume the less noblechoice and to act on that assump-tion without consultation.

In day-to-day law practice, themost common instances of amoralor immoral conduct by lawyers arethose occasions on which wepreempt our clients' moral judg-ments. That occurs in two ways:most commonly we assume thatour function is to maximize theclient's material or tactical posi-tion in every way that is legally per-missible. Since our function is not

Monroe H. Freedman

to judge the client's cause, but torepresent the client's interests, wetend to assume the worst regardingthe client's desires. Much less fre-quently, I believe, we will decidethat a particular course of conductis morally preferable, even thoughnot required legally, and willfollow that course on the client'sbehalf. In either event, we fail inour responsibility to maximize theclient's autonomy by providing theclient with the fullest advice andcounsel, legal and moral, so thatthe client can make the most in-formed choice possible.2 8

Let me give a commonplace il-lustration. Two experienced andconscientious lawyers, A and B,once asked me to help them toresolve an ethical problem. Theyrepresented a party for whom theywere negotiating a complex con-tract involving voluminous legaldocuments, The attorneys on theother side were insistent uponeliminating a particular guaranteeprovision, and A and B had beenauthorized by their client to foregothe guarantee if the other side wasadamant. The other lawyers hadoverlooked, however, that thesame guarantee appeared else-where in the documents. where itwas more broadly and unambi-guously stated. Having agreed toeliminate the guarantee provision,with specific reference to a par-ticular clause on a particular page,were A and B obligated to call theattention of opposing counsel tothe similar clause on a differentpage? Or, on the contrary, werethey obligated, as A put it, "torepresent our client's interest,rather than to educate the lawyerson the other side?"

Each of the lawyers was satisfiedthat, if he were negotiating forhimself, he would unquestionablypoint out the second guaranteeclause to the other party. More-over, each of them was more atten-tive to, and concerned about, ques-tions of professional responsibilitythan most lawyers probably are-each of them, that is, was highlysensitive to the question of per-sonal responsibility in a profes-sional system. Yet it had occurredto neither of them that their profes-

sional responsibility was not toresolve the issue between them-selves, but rather to present theissue to the client for resolution. 29

Our discussion thus far hasrelated to decisions that are clear-ly in the moral or ethical realm.What of tactical decisions? Arethose significantly different andtherefore within the lawyer'sultimate control?

At one time I had the notion,based on fantasy, that Alger Hisshad no involvement with Whit-taker Chambers' nefarious ac-tivities, but that Hiss' wife did.Assuming such a case, imagine Mr.Hiss' lawyer advising him that theonly way to defend himself wouldbe to tell the truth about his wife'sinvolvement, and Hiss replyingthat, in no way, directly or indirect-ly, was his wife to be brought intothe case, even if it meant an er-roneous conviction for himself Inthose circumstances, I find it hardto believe that even ClementHaynsworth or Thurman Arnoldwould insist upon conducting thecase in such a way as to implicatethe client's wife.30

Arguably, however, that caserepresents a moral decision ratherthan a tactical one. On the orithand, there is the client's love forand loyalty to his wife. On theother, there is the possibility of awrongful conviction, and thelikelihood that the client will givemisleading, or even false,testimony in the effort to avoid im-plicating his wife.

A recent case in New Jersey,State v. Pratts,31 would seem tocome as close as possible to requir-ing a tactical decision unen-cumbered by moral considera-tions. In that case, the lawyerrepresenting a criminal defendanthad interviewed a witness who hadgiven the lawyer a statementhelpful to the defense. The lawyerlearned, however, that shortlythereafter the witness had giventhe prosecutor a different state-ment, damaging to the defendant.The lawyer's decision, therefore,was that the witness should not becalled. For similar reasons, of

(Please turn to page 51)

Since our functionis not to judgethe client's cause,but to representthe client's interests,we tend to assumethe worst regardingthe client's desires

involved-to get at the relevantsociological information, made hisdecision without information andperspectives that would have beenavailable to anyone taking anundergraduate course in the field.Whether Judge Roth's decision wasthe correct one is not at issue here;rather the point is that the decisionwas appallingly uninformed bysocial science despite the judge'sstrong efforts to incorporate socialscience into the proceedings andthe decision.

And, incidentally, about that partof his decision which was over-ruled,14 it does not take socialscience to realize that the flight tothe suburbs is the most powerfulsegregationist tool in our society.The lines which purport to be cityboundaries are far greater restric-tions than "separate but equal."Judges may sit secure in theirbailiwicks in Flossmoor andNewton and manipulate otherpeople's children in other people'sneighborhoods in the name ofenlightened social science. Butwhen they do so, they indeedviolate both social science and itstheory, as well as the most obviouscommon sense experience of driv--ing across the street beyond the cityboundary. Again, however, I wouldassert that the contribution ofsocial science to a metropolitan ap-proach to policy-and to policy-related judicial decisions-ought

to be auxiliary, supplementary anda minor footnote, rather than an oc-casion for a disgraceful over-simplification of a very modest in-tellectual discipline in theideological crucible-which someof our adversary proceedings havebecome.

A word also ought to be saidabout the weakness of most socialscience indicators. We do our bestwith our instruments, and, if I maysay so, some of our instruments arepretty good and getting better; butthey are not microscopes or radiotelescopes or any of the other fan-tastically elaborate and precise in-struments of some other disci-plines. No one should begin to thinkthat they are.

I am endlessly amazed by theconflict over IQ tests. How couldanyone take such an unreliable andindeed substantively undefined in-dicator all that seriously? As ageneral and vague measure of cer-tain kinds of undefined intellectualabilities that are not all that impor-tant save in very gross ways, maybeIQ has some utility. But when Iheard that the Irish were a standarddeviation beneath the English in IQscores in the British Isles, I said tohell with IQ. The point is, of course,that if judges and lawyers permitthemselves to be turther seducedinto taking sociological evidencewith terrible seriousness in the

courtroom, they are going to haveto open up the whole can of wormsof social science instrumentation.

Should sociology fold up then?Well, probably no great harm wouldbe done if it did, save to the familiesand dependents of sociologists. Butone could respond with the adhom.,nem but always effective argu-ment of "you're another!" Shouldlaw fold up because it is oftenwrong and because its history ismade up mostly of reversals? In-deed, if only the successful profes-sions are allowed to stay in busi-ness, I fear the mathematicians willpossess the earth- and then onlybecause no one else can understandtheir failures.

As a rule of thumb, the moremodest and restrained the sociolo-gist, the more low-key his findings,the more gray his world, the morecautious and hesitant his policy sug-gestions (something like, "Well,metropolitan, voluntary, sub-sidized integration might help a lit-tle, I think."), the more likely he is tobe a good witness in a court of law.Whatyou will getfrom him, and youshould value it, is a well-educatedopinion and a sophisticated per-spective. Do not expect anythingelse of him, for his discipline wasnever really designed to producemiraculous cures of social ills; andthe good Lord knows that it has notsurprised us by coming up with anysuch cures. hr

knowing best (Continued from page 339

course, the prosecutor also re-frained from calling the witness.

The defendant disagreed withhis lawyer. Fully aware of the risksof calling the witness, the defen-dant decided that that witness waspart of the case he wantedpresented on his behalf, Apprisedof the situation, the trial judge ac-cepted the decision of the defenseattorney, and the witness was notcalled. The defendant was con-victed.

On appeal, the Superior Court ofNew Jersey affirmed. The courtstated the issue to be not "whetherthere was an abuse of discretion"by the trial judge, but "who was

responsible for the conduct of thedefense." The court held that"when a defendant acceptsrepresentation by counsel, thatcounsel has the authority to makethe necessary decisions as to themanagement of the case."' ' 2Quoting a federal appeals deci-sion, the court added that thedefendant "has a right to be cau-tioned, advised, and served by[court-appointed] counsel so thathe will not be a victim of his pover-ty. But he has no right... to dictatethe procedural course of hisrepresentation. "3

I think the court was wrong. Atissue is not the lawyer's day in

court, but the defendant's-thedefendant's right to trial, right todue process of law, and right tocounsel 34 As the Supreme Courthas noted, under the Sixth Amend-ment, "the right to defend is givendirectly to the accused, for it is hewho suffers the consequences ifthe defense fails." 35

Indeed, I would put the Prattscase, too, in the realm of morality.In a society such as ours, an essen-tial purpose of a criminal trial is tomanifest respect for the dignity ofthe individual. 3 Further, as wehave already noted, a central ele-ment of human dignity is personalautonomy, particularly in matters

that affect our own lives assubstantially as those in whichlawyers are needed for assistance.Moreover, the "assistance" ofcounsel that is guaranteed by theSixth Amendment is just that. Inthe words of the Supreme Court,"lAin assistant, however expert, isstill an assistant. The language andspirit of the Sixth Amendment con-template that counsel, like theother defense tools guaranteed bythe Amendment, shall be an aid toa willing defendant... Other-wise, "counsel is not an assistant,but a master," with the result thatthe right to make a defense is"stripped of the personal characterupon which the Amendment in-sists. "

3 7

As against those weighty con-siderations of human dignity andautonomy, which find expressionin the Constitution, what reasonsare there for the attorney to con-trol such a decision? In Pratts,there would have been some sav-ing of time at the trial. On theother hand, in a case in which thedefendant prefers not to call a par-ticular witness whom the lawyerwants to call, the client's decisionwould conserve time. In eitherevent, the time element would notappear to constitute a compellingreason to deprive the client of theopportunity to make the decisionin a matter of such importance tohim. I suspect, in fact, that the realreason lawyers prefer to make thefinal decision, and judges are in-clined to give it to them, is pro-

fessional pride, in the sense thatthe lawyer does not want the judgeor any colleagues present to thinkthat he or she is so unskilled as tohave called a witness who is sovulnerable to cross-examination.Insofar as the lawyer's responsewould be that the lawyer's realconcern is with the client's welfare,I think it is another instance ofmisplaced paternalism.

One of a just society's essentialvalues is respect for the dignity ofeach member of that society. Es-sential to each individual's dignityis the maximization of his or herautonomy or, as Pope John XXIIIexpressed it, "the right to act freelyand responsibly ... chiefly on hisown responsibility and initiative[and] ... on his own decision. ' 38 Inorder to exercise that responsibili-ty and initiative, each person is en-titled to know his or her rightsagainst society and against otherindividuals, and to decide whetherto seek fulfillment of those rightsthrough the processes of law. Thelawyer, by virtue of his or her train-ing and skills, has a legal monopolyon access to the legal system, anda practical monopoly onknowledge about the law. Legaladvice and assistance are often in-dispensable, therefore, to the ef-fective exercise of individualautonomy.

Accordingly, it is both profes-sional and moral for the attorneyto assist clients to maximize theirautonomy by counselling themcandidly and fully regarding their

legal rights and moral respon-sibilities as the lawyer perceivesthem, and by assisting them in car-rying out their lawful decisions.But it is both unprofessional andimmoral to deprive clients of theirautonomy by denying them infor-mation regarding their legal rights,by otherwise preempting theirmoral choices, or by deprivingthem of the ability to carry outtheir lawful decisions.

Until the lawyer-client relation-ship is entered into, however-un-til, that is, the lawyer inducesanother to rely upon his or her pro-fessional knowledge and skills-the lawyer ordinarily acts entirelywithin the scope of his or her ownautonomy. Barring extraordinarycircumstances, 'i therefore, the at-torney is free to exercise his or herpersonal judgment as to whetherto represent a particular client.Since a moral choice is implicatedin such a decision, however, othersare entitled to judge and tocriticize it on moral grounds.

Finally, those of us who teachlaw have a primary professionalobligation to explicate the moralaspects of the law in general and oflawyers' ethics in particular.

If we-teachers and lawyers-conscientiously carry out thosepersonal and professional responsibilities, then I do believe that pro-fessionalism is consistent withdecency, and I therefore concludethat one can indeed be a goodlawyer and a moral person at thesame time. ir

FOOTNOTES

FROM NO RIGHTS

1. 430 U.S. 703 (1977).2. 532 F 2d 880 (3d Cir 1976).3. 400 F, Supp. 326, 340 (E.D. Pa. 1975).4. Minor v Happersett, 88 U.S. (21 Wall,) 162 (1874).5. Hoyt v. Florida, 368 U.S. 57 (1961).6. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872).7 Goesaert v. Cleary, 335 U.S. 464 (1948).8. The Court's landmark ruings in the 1973 abortion cases con-

trasted with the gingerly approach generally taken by the Courtin sex-equality litigation. In Roe v. Wade, 410 U S. 113, rehearingdenied, 410 U.S. 959 (1973), and Doe v. Bolton, 410 U.S. 179,

rehearing denied, 410 U.S 959 (1973) the Court struck down un-warranted state intrusion into the decision of a woman and herdoctor to terminate a pregnancy.

Significantly, these opinions barely mentioned "women'srights." Rather, the pro-choice abortion rulings were anchored toa theory of personal autonomy derived from the due processguarantee.

Until June 20, 1977 it appeared that in this area, the BurgerCourt had embarked unswervingly on a bold course. The Court'sreproductive-freedom decisions up to 1977 have been describedas aberrational-highly active decisions from an otherwisepassive bench. But in three stunning decisions announced June20, 1977, Beal v. Doe, 97 S.Ct. 2366, Maher v. Roe, 97 S.Ct. 2376,