Counseling the client: an administrator's view.

• Author: Degnan, Daniel A.
• Position: Natural law approach to legal counseling

INTRODUCTION

It is unusual to talk or write of a natural law approach to counseling the client. There is a good reason for this. Natural law, according to Thomas Aquinas, is of primary importance, not to lawyers, but to legislators. According to Aquinas, the legislator draws on natural law when making positive law. For the citizens governed by law and the lawyers who advise them, however, the role of natural law is not so clear. Before we talk about a natural law approach for lawyers, therefore, we need to look at what natural law is, and why it concerns the legislator more than the practicing lawyer.

1. Natural Law in Thomas Aquinas's Theory

   Aquinas's basic model of natural law has two essential premises. First, every human being naturally knows a few general principles of natural law. Some examples include the principle that one should not offend those with whom one ought to live in harmony; that no harm should be done to another; and that justice ought to be observed among humans. (1) Second, every human naturally knows a few specific precepts of natural law. For example, one should not murder, commit adultery, or steal. These precepts are so "close" to the natural law principles that they follow naturally from the principles. The specific precepts, however, are not known as immediately or universally as the general principles. (2)

2. Human Positive Law and Natural Law in Aquinas's Theory

   Aquinas holds that all human law is "derived" from the natural law. Human law is derived in two ways. In the first way, the criminal law adopts laws against murder, theft, assault, and fraud--laws similar to the natural law precepts. Most other laws, however, are not directly related to natural law precepts. The second way human law flows from natural law is through "determination" (or specification) of the general principles of natural law, especially the principle of justice. Aquinas uses the metaphor of an architect planning a house. (3) An architect starts with the general idea of a house in mind. Through art and skill, the architect then determines the particular house to be built. Similarly, the natural law principles and precepts express the general form of justice, but the lawmaker decides what positive laws will achieve justice in human institutions and relationships. (4)

   In his theory of natural law and positive law, Aquinas intends the legislator enacting human laws to build on principles of natural law. Much of Aquinas's study of law, moreover, is about effecting the common good, what he sees as the goal of law. In Aquinas's definition, the first work in achieving the common good belongs to the lawmaker.

   What then does counseling clients have to do with the natural law? I offer my answer in two parts. In Part I, I consider cases from my experience as an administrator that required good legal help and reveal the qualities of a good lawyer. In Part II, I discuss how the counselors in those cases made use of a natural law approach.

   1. CASES WHERE GOOD LEGAL ADVICE WAS NEEDED AND THE QUALITIES OF THE COUNSELING

1. Experience as a Law School Dean

   1. Case A: Practicing Law from the Law School

      (i) A United States District Court made an informal complaint about a fee-generating lawsuit conducted by the law school's clinical faculty. I confirmed the situation and sought the opinions of several other law school deans, who advised that the case in question was not pro bono litigation that may be conducted from a law school. I requested and ordered that the litigation not be conducted. An extended, damaging dispute followed. At one point, the university's president and its legal counsel suggested legal action against the faculty members involved; this suggestion was rejected. Ultimately, the dispute dissipated; the faculty members and I pulled back from the edge.

      (ii) Qualities: This was a failure to seek legal counsel. Good legal advice, at the beginning, would have strengthened my hand and helped in avoiding unnecessary confrontations. The consulted deans identified the academic problem, but offered no guidance in how to deal with it.

   2. Case B: Faculty Union

      (i) The law school had an independent faculty union. Twice during my term as dean, the faculty union secured a contract through collective bargaining with the university. I perceived that my role as dean was to try and keep the bargaining confined to salary and benefits (avoiding academic policy and practices); and to quietly support a considerable but feasible upgrade in faculty pay. I fulfilled my role in both instances, but not without some blood on the floor. In the first negotiation, for example, the union threatened...