Sacrifice, atonement, and legal ethics.

• Author: Sweet, David

There is no moral authority like that of sacrifice.

--Nadine Gordimer (1)

INTRODUCTION

Lawyers surely understand sacrifice. The business of representation requires a willingness to subjugate, at least temporarily, one's own priorities, beliefs, and comforts to those of another. Today, that willingness is tested and demanded with unprecedented force. Corporate litigators toil around the clock to perfect their clients' cases. Public defenders stagger under the heaviest caseloads their mandate and conviction will permit. In nearly every legal market, heightened competition has tipped the balance of power toward clients and caused practitioners to surrender more of their autonomy and time.

Examined more closely, however, the increasingly routine actions of attorneys are only sacrifices in a certain sense of the word--they are the exchange of one thing for something else. Corporate lawyers are richly compensated. The public defender's reward is in a different but no less valuable currency. In either case, the aggregate benefits that accrue to the lawyer roughly compensate her for her costs. This is a truism of the rational-actor school of economics, (2) and there is no reason to suppose it does not generally prevail.

There is another brand of sacrifice, less common but equally familiar, perfected by American litigators of the last century: the representation of a worthy but unpopular cause or group. John Quincy Adams was an early exemplar; (3) Clarence Darrow, (4) Charles Houston, (5) and others belong in the same category. But note that each of these names is well-known to us. Many of them were famous before their landmark efforts, but in no case--and this seems generally true of lawyers who take similar stands--were their careers damaged or derailed by their "sacrifice." The notoriety of an unpopular case, successfully defended, redounds to the defender at least in magnitude. Then, as popular opinion catches up to the moral or legal vanguard, the pioneers are vindicated, lionized, and ultimately rewarded.

None of this is meant to demean the actions, accomplishments, or intentions of either everyday or exemplary lawyers. Those who do good, be it good work or good works, should be rewarded. (6) Besides, the willingness to act on another's behalf, whatever the expected reward, requires at least a modicum of humility. Most poignantly, the civil society in which we now live testifies to the worthy sacrifices that lawyers as a class of professionals have made.

But these sacrifices, although critical to our understanding of what a lawyer is and should be, are not the type that I propose to discuss here. The incentives to work harder for a client, or to take on a worthy cause, are well established and well understood. Such sacrifices are rational and, above all, they are human--the kind of sacrifice in which I am interested is arguably not. My subject is vicarious sacrifice, the relinquishment by one person of a right or good for the sole benefit of someone else. Within that category, I focus on substitutionary sacrifice--the imposition of oneself in the place of another. More specifically still, this Note examines the voluntary assumption by one person of the cost or penalty attributable to the other.

With this last qualification, I touch on another concept generically familiar to lawyers--atonement. In its most colloquial sense, atonement simply means repayment, and as such, the law customarily demands atonement for its breach--through compensatory damage awards, for example. (7) There is, however, a deeper and more technical understanding of the word. Theologians and religious ethicists have defined atonement as a complex process encompassing some or all of repentance, apology, reparation, penance, and forgiveness. (8) The goal toward which this progression aims is not merely the repayment of an outstanding debt, but the complete restoration of the preexisting relationship. Accordingly, atonement demands a willingness from the injured and the injurer to recognize both the harm that has been caused and the sufficiency of the remedy. It ultimately seeks to blot out the existence--and all recollection of the existence--of the injury. (9)

Several legal commentators have examined the theological doctrine of atonement and applied it to various legal fields, most frequently and naturally in the area of criminal justice and the study of alternative modes of punishment. (10) In each case, the version of atonement the scholar adopts requires that the wrongdoer initiate and participate in the atonement process. Indeed, this is the prevailing approach of the law. Justice and economics suggest we should extract the repayment from the one who has perpetrated the harm. (11)

I do not intend to challenge that approach as a general matter. It is not, however, the model 1 propose to investigate here. The atonement that interests me is the payment by one person of a debt or penalty attributable to another. Stated more precisely, it is the vicarious and substitutional sacrifice by one person of her rights or goods to atone for the harm caused or debt owed by another. This description is sufficiently technical; it is not necessary for the purposes of this Note to describe fully a detailed and dogmatic version of either sacrifice or atonement. Unlike the commentators referred to above, I am not interested in systematically applying a specific doctrine to a particular field of law.

Instead, this Note seeks simply to introduce to the scholarship on legal ethics a previously foreign idea: vicarious sacrificial atonement, (12) a theological concept I apply here to mean the satisfaction by lawyers personally of the penalties imposed as a result of their clients' violation of procedural rules during the course of litigation. (13) I suggest that an ethic of vicarious sacrificial atonement is both a viable and a valuable aspirational norm toward which legal ethics should point. Viable because the core values served by vicarious sacrificial atonement correspond closely to those privileged by our secular legal system. Valuable because such acts of atonement, even if only isolated--even if only contemplated--could benefit the legal profession in at least three plausible and practical ways: by increasing the social and professional respect accorded to lawyers; by restoring client counseling as the focus of the attorney-client relationship; and by chilling client misbehavior, thereby strengthening the justice system for all players.

Rather than venture further into already deep water, I take a step back in Part I to examine briefly the origins and underlying values of vicarious sacrificial atonement. In Part II, I analyze a familiar ethical dilemma to determine the extent to which these concepts and values are currently embodied in the codes and norms of legal ethics. Finally, in Part III, I present in more detail some of the values, goals, and criticisms of the aspirational model alluded to above.

A caveat at the outset is in order. A full treatment of this subject is well beyond the scope of this Note and my ability. The concepts herein are drawn from philosophy, psychology, civics, religion, and many other fields (including the practice of law) in which I have no expertise. I want only to introduce the idea of vicarious sacrificial atonement in order to start a conversation among scholars with credentials better suited than mine to develop the rudimentary thoughts presented here.

1. VICARIOUS SACRIFICIAL ATONEMENT

   Although the idea of vicarious sacrificial atonement is generally familiar, its application to the professional realm is unusual and perhaps uncomfortable. Like many religious concepts, it seems ill at ease in the secular world; more than others, it suggests an ancient, bloody, and ignorant history that is easily dismissed. But the religious roots of vicarious sacrificial atonement do not invalidate its application to secular ethical analysis. This is particularly true in the field of American legal ethics, which emerged in the early nineteenth century out of a broader religious revival. (14) That movement sought to infuse civic duties with the sort of religious sanctimony appropriate to a country believed to be God's new promised land. At the same time, the newly independent nation was growing increasingly proud of its legal system, which became a vehicle for the ethical ambitions of religious and political reformers alike. The professional rules that eventually emerged from this environment formed the basis for twentieth-century codes, through which they still exercise influence today.

   We live in an era in which the Hebraic roots of legal ethics are largely obscured, and it is inappropriate to evaluate the governing rules on religious terms they may no longer recognize. The impact and implementation of those rules, however, continues to be colored by the religious beliefs (whether present or absent) of the individual practitioners on whom they operate. (15) Where the codes leave room for discretion, in rush whole worldviews. This influence is not only inescapable, but also desirable, for in many cases ethical requirements necessarily devolve to appeals to conscience. In such cases, we hope that individual consciences have been exposed to a breadth of influences from among which they can formulate thoughtful and satisfying conclusions and decisions. (16)

   The influence of religion also operates more broadly than within the individual conscience. As William Simon writes, "[m]any private moral perspectives, religious and not, converge with public ones. The private perspective may inspire and motivate people to participate in the public realm. And it may offer insights that can be translated and incorporated into public discourse." (17) Professor Simon expresses the hope of this Note--that an intensely private perspective may offer applicable insights to those who may not share its deepest ideological foundations. Those...