The pain of moral lawyering.

• Author: Matasar, Richard A.

There is something odd when a lapsed lawyer writes about the practice of law, but I've got something to get off my chest. I didn't like some of the things I did as a lawyer. I took positions I didn't believe in. I made arguments that I thought bordered on untrue. I postured. I bluffed. I pursued advantages provided more by clients' resources than the value of their claims. And, I found out that doing the things that lawyers do--ethical things!--can be painful. The problem is, I didn't learn this lesson until I became a lawyer.

As a lawyer, I barely recognized why practice was so emotionally testing; I'm still not sure I fully understand. But, by sharing some thoughts on the subject I thought I might ease my guilty conscience from sending out new shock troops year after year to make the same discovery I made. Good lawyering is not merely nuts and bolts. It is the exquisite balancing of your agenda, your client's, your boss', and the legal system's--a balance that is virtually certain to make you hurt.

In this essay I highlight the conflicting demands placed on the good lawyer: as advisor, facilitator, and advocate; as zealous representative and manipulator; as self and alter ego of the client. I ask what it means to be a moral lawyer in a system that often sets practice norms at odds with one's moral vision. I explore lawyers' partial and inadequate coping strategies and conclude that they have no simple cure for their conflicts and must learn to live with the pain of moral lawyering. Yet, I don't intend to play a dirge to the practice of law. Rather, I celebrate the profession's potential for moral growth, and society's need for lawyers to feel pain to ensure that growth.

Lawyers do many things. As advisors they counsel clients to help them resolve problems, many of which are not "legal." Through lawyering they do for clients what clients themselves could do--negotiate with others, speak formally about various subjects, and undertake public service. But much of what law schools teach about lawyering, and, not surprisingly, much of what lawyers actually do, involves advocacy. In court, before an agency, in front of a legislative body, lawyers attempt to persuade. The art of persuasion and its demands on lawyers as persons are the core of the conflict many lawyers feel.

Lawyers are zealous advocates for their clients. They had better be, as there is no clearer command in our ethical code. Being a zealous advocate is intellectually rigorous business. Lawyers become masters of manipulation, reconstructing the words of rules and fitting them to clients' goals. They cajole and coax cases into precedential value. They create distinctions, creatively. They revel in ambiguity, a desirable tool utilized to serve the client. Skillful practitioners operate instrumentally, understanding that pliability of legal principles is essential to the craft. The lawyer who represents the plaintiff today, defends the defendant tomorrow. `1b make it work, the law provides wiggle room for both sides.

The lawyer went to law school, however, and law schools play it a little straighter. They demand a different posture--noninstrumental, evaluative. They force students to articulate a "right" answer. Students continually provide one, only to have it undermined and replaced by another. Yet, the quest remains: find the "true" answer.

You can't take the law student out of the lawyer. Every master manipulator of the law also has another voice, an evaluative voice that forms views on the correctness of the client's position. It is the rare lawyer who cannot say with great certainty that he or she has often believed a client's position to be wrong, though arguably acceptable. It is the lawyer's odd lot to argue simultaneously the correctness of matters he or she subjectively believes to be incorrect. Doing so for oneself conjures up images of split personalities and fundamental contradictions. But lawyers suffer no outright schizophrenia, because they argue not for themselves, but as representatives. Though they believe an argument to be incorrect, they make it for their client. Though they may hope the law will not move in a particular direction, for their client's sake they argue, persuasively, to move the law that very way.

Lawyers separate themselves from their clients. It is fundamental to the enterprise. A lawyer who rejects arguments that favor a client's position because the lawyer believes them unsound or wrong is acting as a judge, not as a lawyer. That is not to say that the lawyer does not make judgments about potential arguments for a client, for not every argument that can be made should be made. Some arguments will not fly, or will put the client in a bad light, or will undermine more...