The ideology of domination: barriers to client autonomy in legal ethics scholarship.

AuthorGear, Camille A.

It might be said that anyone whose conscience is so tender that he

cannot fulfill the prescribed obligations of a[n attorney]... should

not undertake those obligations. He should not allow his moral

scruples to operate as a trap for those who are told by the law that

they may expect something more.

--Charles Fried(1)

Ethics scholars know that when attorneys use their moral concerns to guide the representation of clients, attorneys can seriously undermine clients' autonomy. Scholars' concerns, however, are mitigated by their belief that lawyers must prevent clients from pursuing immoral goals. As a result, ethics scholarship contains two contrary directives. Lawyers are told that they must work to facilitate client autonomy(2) and that they must use their power to prevent clients from pursuing immoral goals(3) These contrary assumptions create tension in the ethics literature: Lawyers are unsure where their power ends and where client autonomy begins. Ethics treatises resolve this tension by instructing the attorney to limit a client's autonomy when the client's morality is alien to the attorney's chosen moral code. This general rule creates predictable consequences. The three prevailing ethics models--the lawyer-as-statesman,(4) the lawyer-as-friend,(5) and the lawyer-as-hired-gun(6)--encourage attorneys to subordinate their clients' interests and allow attorneys to use their moral frameworks in their representation of clients.(7)

I first noted the inconsistency in the traditional ethics models' underlying premises when I used the models to inform my representation of Arna Scott, a client in the Advocacy for Parents and Children Clinic at the Yale Law School.(8) Ms. Scott is a thirty-five-year-old black woman who is HIV-positive, homeless, a substance abuser, and a domestic violence survivor. According to her file, Ms. Scott needed legal assistance in getting custody of her son Hayden, a three-year-old HIV-positive child. The State of Connecticut had taken custody of Hayden because Ms. Scott had failed to comply with her Department of Children and Families (DCF) treatment plan.(9) Specifically, Ms. Scott had missed several of Hayden's medical appointments, had not found stable housing, and had not finished a substance abuse treatment program.

After my first meeting with Ms. Scott, my moral sensibilities rumbled, a cacophony of incoherent concerns.(10) Ms. Scott seemed to be in violation of her treatment plan. She appeared to be very ill and physically exhausted. She also acted erratically, behavior that I knew in the past had triggered her DCF worker to suspect that she was using drugs.(11) Ms. Scott's words confirmed my worries. She explained that she had not contacted the clinic for six months because she had been in and out of the hospital recovering from various illnesses and from Hayden's father's assaults.(12) Ms. Scott had not found permanent housing and had no permanent address or phone number. I informed Ms. Scott that Hayden's foster mother, a nurse who cared for HIV-positive children, wanted to adopt him. Ms. Scott immediately rejected this idea; she passionately wanted to be reunited with her son. Ms. Scott seemed surprised when I mentioned that, according to DCF records, she had not visited Hayden in the past three months.(13)

After our meeting, I asked myself whether an ethical attorney would help Ms. Scott pursue her wishes.(14) My instincts suggested that I should focus on facilitating Ms. Scott's autonomy. I had joined the clinic because I was committed to helping poor people use the law to talk about the injustices in their lives. I knew that there were substantial obstacles to achieving my goal. The lawyer's superior knowledge of the law and her facility with legal language allow her to flout a client's wishes surreptitiously when she dislikes a client's goals. I also knew trust would be a problem. My perception of my client would be filtered through my own preconceptions and biases; sensing this, the client might not be truthful about her interests.(15) I recognized that my knowledge of the client would always be partial and limited. Still, I believed there must be a way to free the client to articulate and act on her desires.

Since my own concerns generated only doubt, I turned to the three prevailing ethics models(16) to determine whether and how I should represent Ms. Scott. The models provided answers, but they all cast Ms. Scott in the role of moral suspect. The lawyer-as-statesman model required me to assess whether Ms. Scott's case represented the cause of justice, as proscribed by the law.(17) If not, I could deny Ms. Scott representation. The lawyer-as-friend model directed me to determine whether Ms. Scott's moral views were consonant with my own; if not, I could decline to represent her. The classical lawyer-as-hired-gun model directed me to refrain from morally judging Ms. Scott. To ensure that I did not, I could never engage in moral dialogue with her. If Ms. Scott proved to be so morally abhorrent that I ended up judging her, my moral concerns would control and I could drop her case.(18)

Although the various ethics models offered me clear direction, I was troubled that they all forced me into a conflict with my client.(19) The models required that I identify what the bounds of morality were and that I use my conclusions to determine whether my client should be allowed to act autonomously. In the end, if my client could not articulate a moral vision with which I was familiar, the ethics models allowed me to deny her representation. I longed for an ethics paradigm that would allow me to help the client explain and expand her own independently constituted moral perspective.(20) This approach seemed more consistent with the philosophical account of autonomy with which I was familiar: True autonomy means giving a person the opportunity to engage in independent moral judgment.(21)

This Note attacks the assumption in the ethics literature that the attorney-client relationship must be a battle of moral visions. It challenges the idea that the attorney has a right to act as the moral decisionmaker in a client's case. Part I defines the key concepts of autonomy, ideology, and hegemony. Part I then identifies the "ideology of domination"--four constructs in the ethics literature that frame the attorney's perception so that she is predisposed to see conflict between her and her client's goals and predisposed to prevent the client from acting on the client's perceived alien morality. Part I argues that the ideology of domination has conditioned both traditional and oppositional scholars to devalue client autonomy(22) Part U of the Note surveys the traditional ethics models to illustrate how the ideology-of-domination constructs focus attorneys' attention on attorney-client conflict and encourage attorneys to limit client autonomy. Part III shows how the ideology of domination has limited oppositional scholars' ability to create new ethics models that allow clients to act autonomously.(23) Part IV outlines ways in which scholars can transcend the ideology-of-domination constructs, describing what I call the ethical mirror model. Part IV demonstrates that once we shift our ideological approach, we can reconfigure the attorney-client relationship in a way that facilitates clients' autonomous moral judgment.

  1. DEFINITIONS: AUTONOMY, IDEOLOGY, AND HEGEMONY

    1. Autonomy

      Ethics scholars have numerous grounds for privileging client autonomy in the attorney-client relationship. Some argue that the lawyer was originally constituted to be an agent who allowed the client to function as an autonomous legal actor.(24) Others insist that the Constitution requires attorneys to facilitate client autonomy. They argue that, logically, the constitutional provisions that secure a person rights would have little meaning if the person did not have a professional's assistance in exercising her rights.(25) Additionally, ethics scholars argue that the adversary system was constituted to be an arena where competing interests clash. The system cannot function effectively, they argue, when clients are forced to rely on professionals who refuse to create legal claims that give unadulterated expression to clients' views? Lastly, ethics scholars note that the Model Code of Professional Responsibility directs lawyers to engage in zealous advocacy,(27) suggesting that lawyers aggressively assist their clients in pursuing their clients' independently selected goals.(28)

      Despite the numerous reasons for valuing client autonomy, most ethics scholars have begun to argue that client autonomy can be subordinated in favor of other issues, such as social justice,(29) lawyers' responsibilities to third parties,(30) and lawyers' interests in their own autonomy(31) Additionally, scholars argue that because the prevailing ethics models do not successfully facilitate client autonomy, we must consider whether client autonomy is an unrealistic value(32) Scholars who have increased their focus on values that undermine client autonomy fail to resolve two important issues. First, since we have constitutional, historical, and philosophical bases for affirming client autonomy, we should be slow to abandon the ideal, even if it is hard to achieve. Second, these new species of anti-autonomy concerns allow lawyers to mask their aggressive desires to control clients who make them uncomfortable, by arguing that their conduct is justified by competing social or philosophical concerns. Indeed, a lawyer invokes these competing concerns only when she cannot identify with the client's desires. The growing number and variety of justifications for limiting client autonomy suggest that ethics scholars see the attorney-client relationship as a battle of wills and that scholars know that a lawyer's decision to circumscribe the client's right to engage in autonomous moral judgment is suspect and must be explained.

      I will try to direct scholars...

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