The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

Having thus previewed my central concerns about Professor Kleinig’s paper, let me identify in the first part of these comments what I like about his approach, and I find a great deal to like about it. Professor Kleinig advances several notions. One is that loyalty is a "central human virtue" and that some loyalties have "self-defining importance" for the loyal individual. Another is that loyalty to clients, which is the conventional understanding of what professional loyalty entails, lacks the qualities necessary for self-defining importance and falls short of the standards for being a central human virtue. This is true particularly because loyalty to clients "seem(s) to be partisan in ways that will often be disruptive of larger social values." (Kleinig, 78)

The latter point is crucial to discussions of lawyers and loyalty. Lawyers who practice with a client-centered ethos (rather than, for example, a justice-centered ethos) may well function as soldiers for unsavory characters and unsavory causes. The law and legal process permit (or fail to outlaw) myriad forms of mayhem. We are wise to be skeptical of a professional ethos that says to lawyers that they may do (indeed, must do) whatever unprohibited mayhem their clients direct and that they should take professional pride in doing it well, so long as they have served their clients loyally in the process.

That lawyers often serve purely private interests is a loyalty problem in a classic sense. Loyal service to autonomous clients may dictate that lawyers seek private advantages for their clients even though the advantage unfairly harms others or even is contrary to the public good. Moreover, loyalty may dictate that these lawful but unworthy advantages be gained through means that are lawful but also unworthy, such as by confusing or belittling truthful witnesses or putting an innocent adversary to great expense to assert its point of view. Loyalty to clients may justify conduct that would otherwise be wrongful. Loyalty to clients may be a license (or a mandatory injunction) to inflict wrongful harm.

That clients may have the legal right to take advantage of failures in the law and legal process does not mean that lawyers should have an unqualified moral right to assist them in doing so. While this proposition seems sensible enough, it has its problems, the principal of which is the problem of client dignity and autonomy to which Professor Kleinig refers. Summarily stated, one branch of the client autonomy problem is this: in a complex state, legal rights are illusory without the wherewithal to enforce them, and lawyers provide that wherewithal. If lawyers as a group refuse to assist some class of rights-holders in enforcing their legal rights, lawyers act as an oligarchy in redefining the very existence of those rights and depriving clients of the autonomy to pursue "lawful" choices. According to this view, lawyers may undermine the very rule of law they are bound to serve if they, as a group, withhold lawful services from would-be clients who are disfavored by lawyers, for whatever presumably sound reason.

A second branch of the client autonomy problem, the branch more directly addressed by Professor Kleinig, arises within a lawyer-client relationship. The argument here is that lawyers improperly deprive clients of their autonomy if they pre-empt a client’s choice or resist a client’s instructions, for some reason not grounded in the lawfulness of the choice or instruction. (Kleinig, 77) When lawyers pre-empt or defeat a client’s choice or instruction, they have acted disloyally if the client is the proper object of their loyalty. Thus, the sin may be doubly bad: the client’s autonomy has been restricted and the lawyer has acted disloyally.

Professor Kleinig is not concerned in his paper with the first branch of the client autonomy problem, the withholding of services branch. Withholding services could be a loyalty issue under Professor Kleinig’s account of professional loyalty,³ but it is not a loyalty problem from the conventional viewpoint. Decisions not to form a lawyer-client relationship may be very troubling from any number of perspectives, but they do not seem to raise an issue concerning whether there is disloyalty to the individual with whom a relationship is not formed. Indeed, according to the conventional view, lawyers generally may avoid loyalty dilemmas by choosing their clients and causes wisely, so they will not be compelled by a loyalty imperative owed to a client to do that which is otherwise improper.⁴

Professor Kleinig clearly recognizes that his account of professional loyalty would diminish client autonomy within existing lawyer-client relationships. This is because "[l]oyalty to clients is subordinate to that more fundamental loyalty" to the profession’s overarching norms of public service. By shifting the object of a lawyer’s dominant professional loyalty from clients to professional norms, Professor Kleinig seems to be advocating curbs on the extent to which lawyers seek partisan (Professor Kleinig uses the term "tactical") advantages for their clients rather than "just outcomes" (Kleinig, 80).

This, it seems to me, is a worthy objective. We should develop sound theories that reject the conception of the lawyer as amoral hired gun who should be ready, willing, and able to wreak havoc for a client, subject only to clear legal limits. This returns us to an earlier point: That clients may have the legal right to take advantage of failures in the law and legal process does not mean that lawyers should have an unqualified moral right to assist them in doing so. This is true unless lawyers have a moral right to assist their clients by all lawful means and toward any lawful end. The grounding of any such moral right to assist clients likely derives, in important part if not exclusively, from a loyalty obligation.

This appears to be the argument that Professor Kleinig is seeking to debunk. He does not want lawyers and other professionals to engage in wrongful conduct under the wrongly-presumed compulsion of a too-expansive loyalty obligation to a client. At the same time, he wants to uphold a conception of loyalty as a "central human virtue." (Kleinig, 78) So Professor Kleinig faces this difficulty: How does he espouse loyalty as a central human virtue while countenancing lawyers (and other professionals) to act, in limited circumstances, against the interests of their clients?

Professor Kleinig attempts to defuse the explosive danger of (largely) unfettered loyalty to clients. One strategy for doing so, which he clearly rejects, is to argue that professional loyalty isn’t that big a deal, that disloyal acts are often justified. This is part of the strategy employed by George Fletcher to which Professor Kleinig objects. Indeed, Professor Kleinig is attempting to rescue professional loyalty from the margins to which Professor Fletcher and others assign it and locate it "within a larger account of loyalty as a central human virtue." (Kleinig, 78)

His strategy is to assert that professional loyalty, properly understood, has as its object "the shared values, aspirations, and expectations of a community of dedicated service providers." (Kleinig, 81) As so defined, this loyalty to professional norms and standards eclipses in importance loyalty to clients and provides a basis for lawyers to conclude that their services should be employed only in ways that serve the legal process (or as Professor Kleinig characterizes it, "the court") and the public. That is, only in ways that serve "overarching professional norms," as Professor Kleinig has identified them. By this device, professional loyalty can be seen as a virtue that is central to the individual’s identity and which does not countenance the same extremes of harmful conduct that loyalty to clients can entail.

If this vision holds together, it is enormously attractive. When combined with what Professor Kleinig sees as the public-serving features of professions and professional loyalties, he offers a vision of professional loyalty that serves the public well and integrates the private and professional self, at least as to professional task-oriented moral questions. The only cost would seem to be that some clients will not be served in ways they desire but in which they are not morally entitled to be served, which seems like a pretty meager price to pay.

So does this vision hold together?

Maybe it should; but probably it doesn’t. There may have been a time when the legal profession meaningfully could look to "shared values, aspirations and expectations." The profession is in something of a panic about whether this is any longer possible.

Dichotomies are nothing new to the legal profession. The images of the country lawyer and the Philadelphia lawyer coexisted side-by-side somewhat comfortably for many decades. Somewhat less euphemistically, Heinz and Laumann have described lawyers who inhabit the two different "hemispheres" of the legal profession, which they define as lawyers who represent large organizations and those who represent individuals as clients, as quite demographically dissimilar and exhibiting quite different views.⁵ Thus, lawyers have always been a somewhat diverse lot, cast in at least several molds.⁶

But for better and for worse, the diversity within the legal profession has increased very substantially in the past quarter century. Part of the diversification is demographic, as more women and, to a lesser extent, more minorities, have joined the bar.⁷ Part of the diversification involves professional roles, as specialties separate lawyers into ever more refined professional niches.

There are indications that this diversification has an enormous impact on the lawyer ethos. Scholars in the field of legal ethics are divided, sometimes stridently, into at least two fairly well-defined camps. Client-centered legal ethicists, most notably Monroe Freedman (see note 4), are particularly focused on client autonomy and dignity issues and tend to extrapolate their views of the lawyer’s role from the civil liberties afforded accused persons by the Bill of Rights. Justice-centered legal ethicists, most notably David Luban,⁸ who is mentioned quite approvingly by Professor Kleinig, are particularly focused on curbing the excesses of private interest by focusing on the lawyer’s role within the public enterprise. The tendency toward polarization in legal ethics scholarship casts some doubt on lawyers’ ability to be loyal to shared professional norms and standards, particularly when some of the biggest issues are so up for grabs.

It should be emphasized that this lack of a shared vision in legal ethics is hardly unique to the academy. Lawyers in different specialties often differ markedly in their views of how particular issues of legal ethics should be resolved, and these differences have spilled over into the rule-making process on numerous occasions. Ted Schneyer has particularly illuminated these specialty-derived differences in legal ethics in his writing.⁹

What this portends for Professor Kleinig’s approach to professional loyalty, as it applies to lawyers, is quite serious. There may be too little in the way of shared norms and standards to provide meaningful guidance to lawyers, at least when it comes to the tough issues involving client abandonment or "betrayal." This is particularly true given Professor Kleinig’s admonition that the norms and standards he is looking to are not "the constructs of an individual consciousness nor Platonic universals." (Kleinig, 81) Rather, Professor Kleinig appears to be talking about truly shared belief structures defining the lawyer role and lawyer performance. While there may be important areas of consensus within the legal profession, there is no consensus on the extent to which the lawyer ethos is and should be client-centered.

One possible response to my critique is that the proffered object of professional loyalty, the shared norms and standards of the profession, need not be universally accepted for Professor Kleinig’s approach to succeed. There is considerable distance between "the constructs of an individual consciousness" and universal acceptance. Perhaps some mid-point on the extent of professional acceptance will sustain Professor Kleinig’s vision of professional loyalty.

To test this possibility, it seems to me that we must recognize that a substantial number of lawyers consider their profession to be dominantly client-centered in the sense that loyalty and service to clients trumps virtually every other professional concern, except adherence to the law. Is there an important difference, with respect to these lawyers, if their loyalty is to professional norms and standards that dictate loyalty to clients rather than some less-circuitous form of loyalty to clients? The question is not intended to be rhetorical. Perhaps something important is gained in the less individualized, less humanized sense of professional loyalty advanced by Professor Kleinig.

It may be that strong loyalties must be idealized, de-humanized. Humans, whether in the role of clients or family members or some other loyalty-object, are too variable and fallible to support a consistently strong loyalty obligation. Clients, as loyalty-objects of lawyers, certainly suffer from such infirmities. It is unlikely that a consistently strong loyalty obligation can be founded on such loyalty-objects. Indeed, much of the rhetoric in defense of a strong duty of confidentiality, which is essentially a loyalty concern, is focused not solely on the issues of trust and betrayal involving the affected client, but also on a concern that other clients, future clients, will be adversely affected by a diminished duty of confidentiality, because they will not prospectively trust their lawyers with their secrets. The arguments sometimes seem to admit that perhaps my client is a bum and deserves betrayal, but my next client may not be bum and will need to tell me her secrets to be properly served.

And thus, as Professor Kleinig suggests, the strong form of loyalty may be the depersonalized form, abstracted away from the frailties of the individual. But where does this leave us in terms of the problem of excessive lawyer zeal on behalf of the over-reaching client? It seems to leave us with a medicine that is worse than the disease. It seems to provide a justification for loyalty to the unworthy client that could not be achieved on the basis of that lawyer-client relationship alone.

Loyalty often exhibits itself as a highly admirable trait. The problem is that it often exhibits itself in an opposite light as well. The professional loyalty of lawyers is particularly troubling to loyalty theory because, to the extent that it is a loyalty to clients individually, it exhibits itself neutrally. Whether the loyalty is a positive or negative force appears to have little to do with the loyalty itself but rather depends substantially on the client’s objectives and means.

One approach to this problem, the one rejected by Professor Kleinig, is to marginalize professional loyalty and regard it as less virtuous, if virtuous at all. This approach entails a serious threat to the standing of the legal profession, at least if loyalty to clients is a fundamental professional value, as suggested by the statements of Professors Hazard and Wolfram quoted by Professor Kleinig. If the pillars supporting the profession lack moral standing, can the profession itself fare better?

Professor Kleinig seeks to reinforce the moral standing of the loyalty pillar by redefining the primary object of the lawyer’s loyalty. It is ultimately better, it seems to me, to consider carefully the scope of the loyalty owed to clients and not solely the weight of that loyalty. This is because loyalty to clients is centrally important to the norms and standards of the profession, rather than a matter of subordinate importance. (Contrast Kleinig, 80.) By considering the scope of a lawyer’s loyalty obligation to clients, we may find that professional loyalties are surely a positive moral force. We may find that a lawyer’s loyalty obligations do not reduce the lawyer’s opportunity and responsibility to show moral integrity in performing professional tasks. We may find that client autonomy and lawyer autonomy are not a zero sum game. We may find that principles of partnership rather than principles of agency better define the lawyer-client relationship as well as other loyalty-infused relationships.

The concept of loyalty has tremendous explanatory power in defining relationships and professional roles. We should be grateful to Professor Kleinig for advancing the ball in the study of this important subject.

1. John Kleinig, "Professional Loyalties," 81.

2. Ibid., 77, quoting Charles Wolfram, Modern Legal Ethics (St. Paul, MN: West Publishing Co., 1986), 146.

3. If one of the shared values of the profession is that access to legal services should be provided to all persons seeking to assert a viable legal claim or defense, then it could be a breach of loyalty under Professor Kleinig’s account to refuse to provide such service, at least for a self-interested reason such as greed.

4. See Monroe H. Freedman, Understanding Lawyers’ Ethics (NY: Matthew Bender, 1990), 50: "Once the lawyer has chosen to accept responsibility to represent a client, however, the zealousness of that representation cannot be tempered by the lawyer’s moral judgments of the client or of the client’s cause. That point is of importance in itself, and is worth stressing also because it is one of the considerations that a lawyer should take into account in making the initial decision whether to enter into a particular lawyer-client relationship."

5. John H. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (New York: Russell Sage Foundation, 1982).

6. For a discussion of the influence of the lawyer’s cultural background on his or her ethical viewpoint, see Thomas L. Shaffer, American Legal Ethics: Text, Reading, and Discussion Topics, (NY: Matthew Bender, 1985), Chap. 12: "The Immigrants," 583-645.

7. For an account of sex-based differences in ethical outlook, see Carol G. Gilligan, In a Different Voice (Cambridge, MA: Harvard University Press, 1982). Race-based differences are explored in Patricia J. Williams, The Alchemy of Race and Rights (Cambridge, MA: Harvard University Press, 1991).

8. See David Luban, Lawyers and Justice: an Ethical Study (Princeton, NJ: Princeton University Press, 1988).