The role of a lawyer's morals and religion when counseling clients in bioethics.

AuthorAllegretti, Joseph

The fields of bioethics and law are inextricably entangled. Many of the toughest and most controversial issues in bioethics--abortion, surrogacy, control of frozen embryos, removal of life-support systems, physician-assisted death--end up being resolved, for better or worse, in the courts. The other branches of government are involved as well--legislatures pass laws, administrative agencies issue regulations, and presidents convene commissions and make funding decisions.

Wherever there is law, there are lawyers. When we think of lawyers and bioethics, we usually think of packed courtrooms and contentious litigation, but lawyers are more often involved behind the scenes, counseling clients who are facing life and death medical decisions. Counseling clients who want to execute a will or advanced directive; counseling clients who hope to adopt a baby; counseling clients who are worried about an elderly relative who has grown feeble and irrational; counseling clients whose child was born with Down's Syndrome and needs stomach surgery to survive; counseling a client whose mother is in a persistent vegetative state, and is being kept alive by artificial nutrition and hydration; counseling hospitals, nursing homes, and hospices on individual cases and institutional policies; counseling legislators and administrative agencies on what laws to write, and which regulations to issue. We rarely pause and consider this role of the lawyer.

While legal literature contains thousands of articles on bioethics and law, there are few works that examine the dynamics of the lawyer-client relationship. Scholars studying the intersection of law and medicine often ignore the context in which the two disciplines converge daily in countless offices around the country--with lawyer and client sitting together, talking, wrestling with tough choices, deciding what and what not to do.

This conference represents an important step in remedying that oversight. Yet it seeks to do more than merely examine the interactions between lawyer and client. It adds yet another element to what is already a complex picture--religion. This conference focuses not only on the role of the lawyer in bioethics, but also on the relevance of religion to the lawyer's work. This conference can thus be seen as the natural outgrowth of several other symposia hosted by Fordham Law School that have examined the relationship between religion and lawyering. (1)

Law, Bioethics, and Religion. Three academic disciplines. Three spheres of life. How do they come together in the lawyer-client relationship? How do they overlap, intersect, and interpenetrate? More specifically, what role should a lawyer's religion play in her relationships with clients? Should religion be part of the conversation between a lawyer and her client? What if a lawyer has religious objections to a course of action that appears to be in her client's best interests? Should the lawyer voice her objections, or stay silent?

As we deal with these issues, keep in mind the simple image of a lawyer and client, sitting together, talking, wrestling with tough choices. Let us consider two questions. First, how should we envision the relationship between a lawyer and her client? Second, what role should the lawyer's religion play in that relationship?

  1. THE LAWYER-CLIENT RELATIONSHIP

    1. Hypothetical

    My grandmother died a few years ago. At one point our family discussed the possibility of a feeding tube for my grandmother, but she died before we could make a decision. For the purposes of analysis, assume my grandmother has been comatose, on a ventilator and feeding tube for months, with no reasonable chance of recovery. (2) Assume further that my grandmother has left no living will or other indication of her wishes about life-supports. Under these circumstances, the law of our state allows the next-of-kin to make the decision. I am my grandmother's closest living relative.

    In my discussions with the nursing home, I have raised the possibility of removing the life-supports, but have been told to wait a few more months before making a decision. Not sure of what to do, I decide to see a lawyer to learn more about my options.

    Assume I visit three lawyers. The first listens to me for a minute or two, and then interrupts. She tells me that under the law of our state I can have the life-supports withdrawn. If the nursing home refuses, I can get a court order requiring removal. "Look," she says, "here's what we'll do. I'll call the nursing home immediately and demand they withdraw the life-supports. If they say no, we'll go to court." She pauses for a moment, as if awaiting my approval. "I'm not sure," I say, "It seems OK, but I'm still not sure what to do." The lawyer explains that she's seen a lot of these cases, and that withdrawing the life-supports is the right thing to do. "You're too emotionally involved to make the decision," she tells me. "That's what I'm here for. Leave everything to me." I tell her I'll think about it and get back to her tomorrow.

    I go to a second lawyer, who listens intently to what I say. She nods understandingly. When I am finished, she says, "We have several options open to us. It all depends on what you want. We could wait awhile, we could schedule a meeting with the nursing home, or we could go to court. It's really your choice." I try to explain that I'm not sure what to do. "A part of me thinks it's right to remove my grandmother from life-support, but another part of me thinks it's wrong, almost like murder." The lawyer tells me to think some more about what I want to do, make a decision, and then get back to her. "Whatever you want to do, we can do," she tells me as I leave.

    I go to a third and final lawyer, and tell my story again. This lawyer does not tell me what to do. She does not promise to do whatever I tell her to do. She listens to me, asks questions, and identifies options. We are drawn into a discussion of the moral issues surrounding the use and removal of life-supports. As I become more comfortable with her, I reveal that I have religious concerns about removing the life-supports. The lawyer suggests I meet with my parish priest to talk about the religious issues. She says she will arrange a meeting with my grandmother's physician and the administrator of the nursing home. Perhaps then, we will find out what we need to know to make an informed and wise decision. I leave, still not knowing what to do, but feeling surprisingly better.

    These crude portraits are unreal, of course, and simplify both the dynamics of the lawyer-client relationship, as well as the procedures involved. These hypothetical scenarios are meant to highlight several typical models of legal counseling currently prevalent in the profession. Each of my hypothetical lawyers represents a distinctive orientation or perspective on the lawyer-client relationship. They are roughly based on models developed by law professors Robert Cochran, John DiPippa, and Martha Peters in their important work, The Counselor-at-Law: A Collaborative Approach to Client Interviewing and Counseling. (3) The authors identify three models of lawyer-client relationships: authoritarian, client-centered, and collaborative. (4) Each model will be examined in turn.

    1. The Authoritarian Model

      The authoritarian model, exemplified by the first lawyer in our hypothetical, presumes that the lawyer is in charge of the relationship. (5) Clients are expected to be docile and passive. They should trust their lawyers to act in their best interests. They should not ask too many questions or take too active a role on their own behalf. In contrast, lawyers are expected to be aggressive, decisive, and commanding. In his famous study of lawyers and clients, David Rosenthal calls this the "traditional approach." (6) Rosenthal concludes, "The traditional idea is that both parties are best served by the professional's assuming broad control over solutions to the problems brought by the client." (7)

      The reasons for such a model are not difficult to understand. (8) As I have written elsewhere, "Clients are often vulnerable, troubled persons. They frequently lack an understanding of the language or the nuances of the law. They are strangers in the strange land of the courts. They have little choice but to trust in the competence of their lawyer." (9) Add to this that lawyers have undergone a socialization process that leads many to see themselves as "members of an elite ... different from and somewhat better" than the clients they are hired to serve. (10)

      When these factors are present, it becomes easy for a lawyer to act paternalistically towards a client and deal with her not as an adult, but as a child, or perhaps, as a broken object needing to be fixed. (11) The lawyer is tempted to treat her client "as though the client were an individual who needed to be looked after and controlled, and to have decisions made for him or her by the lawyer, with as little interference from the client as possible." (12)

      Cochran identifies four problems with the authoritarian approach. (13) First, it disregards the client's dignity. (14) The client should be in charge of the important decisions about her life, not the lawyer. Second, it is likely to be less satisfying for clients "because clients, in general, are likely to be the best judges of their own interests." (15) Only the client knows her own values, goals, and willingness to take risks. Third, client control is likely to achieve better monetary results than the authoritarian model. Cochran notes that Rosenthal's study found that "plaintiffs who are actively involved in their cases obtain higher settlements and higher verdicts than plaintiffs who allow their lawyers to control the representation." (16) Fourth, the authoritarian model is contrary to the thrust of the Model Rules of Professional Conduct, which give the client the ultimate authority to decide the objectives of the representation. (17)

      ...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT