Wasserstrom and Lawyers as ‘Amoral Technicians’

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What does it mean to be an honest lawyer? To unravel this, is to come a step closer to understanding the role lawyers’ play. Most people possess some degree of personal ethics by which they live, some others refer to a moral compass but laws and rules guide both groups. They can be easy to conflate so the ability to differentiate between them is important, because they can and often times, conflict with one another. As Wasserstrom phrased it: “For most lawyers, most of the time, pursuing the interests of one’s clients is an attractive and satisfying way to live in part just because the moral world of the lawyer is a simpler, less complicated, and less ambiguous world than the moral world of ordinary life’.

The 1974 Wasserstrom solicitor – client commentary is approached from two perspectives in the following critical discussion. The first is a brief assessment of the Wasserstrom article in which his ‘amoral technician’ claim is advanced. It is suggested that the United States’ post-Watergate era exerts an intriguing influence over how Wasserstrom perceives legal professional ethics.

The second perspective specifically compares the concepts Wasserstrom associates with ethical lawyer conduct, with the current England and Wales (EW) Solicitor Regulation Authority (SRA) Code of Conduct (‘Code’). Particular attention is directed at the Code principles. The various discussion points developed in this respect confirm that Wasserstrom’s solicitor – client relationship characterisation is largely, if not perfectly aligned with the SRA Code ethics framework. Given the US and EW comparisons discussed here, the terms ‘solicitor’ and ‘lawyer’ are used interchangeably.

Wasserstrom – US legal ethics circa 1974

In examining how Wasserstrom explains the nature and scope of a lawyer’s professional duty owed to every client, it is instructive to consider the context in which Wasserstrom is writing. He makes numerous references to the then-recent Watergate scandal, in which US President Richard Nixon was forced to resign. At its essence, Watergate involved a criminal conspiracy to ‘cover up’ illegal activity Nixon’s Republican party directed in the 1972 presidential election campaign.

The Watergate scandal prompted significant legal profession and broader public criticism of lawyers, and the apparent legal ethics violations that had occurred. Ariens (and numerous American legal scholars), emphasises that a broad consensus opinion exists amongst American lawyers that ‘ideals of legal professionalism’ largely dissolved during the 1970s, spearheaded by the Watergate events.

Wasserstrom makes an astute observation regarding the many lawyers implicated as Watergate co-conspirators: their professional training made it easier for them to potentially justify the dubious ethics associated with their actions as ones furthering their client’s interests. The fact that lawyers were such prominent players in the Watergate events gives legal ethics, and Wasserstrom’s ‘amoral technician’ definition particular resonance.

Wasserstrom takes this law-morality relationship to its arguably ultimate conclusion later in his 1974 commentary. He notes that no legal ethics violation is committed when lawyers choose to represent clients ‘whose aims and purposes are quite immoral’ (such as the client that will manufacture and sell a harmful, but not illegal product such as cigarettes). Once the lawyer has agreed to act, they must provide the client with ‘the best possible assistance, without regard to his or her disapproval of the objective that is sought’. As the following SRA Code discussion points confirm, Wasserstrom accurately captured the essence of a lawyer’s professional obligations, and how lawyers must comply with their overarching duty to advance their client’s best interests.

SRA Code

The Code and its 10 Principles advance the overarching legal professional conduct objectives defined by the Legal Services Act 2007. The Principles remain the fundamental core that every solicitor should work to every day and should have at the forefront of their mind. The Act promotes ‘outcomes focused’ England and Wales (EW) solicitors’ regulation (OFR, authorisation, supervision, and enforcement), where primary importance is attached to promoting ‘high-level outcomes governing practice and quality of outcomes for clients’. This OFR orientation reflects the SRA efforts to transform its role, by moving away from the previous ‘tick box’ regulatory regime, to the current model whereby solicitors’ accountability is based ‘on achieving specified outcomes, and also on having demonstrably effective processes to prove that you have done so’. The SRA had concluded that the former ‘tick box’ approach did not appropriately encourage a culture of accountability and responsibility amongst its members.

The underlying philosophy the Act and Code collectively reflect an ethos whereby client and the general public interests are highlighted. It is suggested that from a traditional legal ethics perspective, the 10 Code principles are not controversial. For generations, the legal profession has accepted that at all times, its members must act with integrity, not permit their independence to be compromised, and act in the best interests of each client. It is suggested that these traditional ethical obligations are so engrained in the ethical frameworks; they also shape the public expectation that lawyers are professionals devoted to their client’s interests.

‘Zealous’, is the adjective often employed to describe the high level of commitment to the clients’ interests that every lawyer must demonstrate. Wasserstrom described the disgraced Watergate lawyers in identical terms: professionals that regarded themselves as having ‘zealously’ represented Nixon and his presidency. From a literal meaning perspective, ‘zealous’ conveys an impression that a lawyer can say or do almost anything short of committing a crime, and remain within the defined legal ethical boundaries. In other words, zealous advocacy might heighten the risk that brash, perhaps ill-considered client representation remains ethical.

This observation aside, there is no doubt that the most important ethical limitation placed on how a lawyer may permissibly advance their client’s interests is SRA Code Principle 1: ‘uphold the rule of law and the proper administration of justice’. Belhoff rephrases this Principle in the following attractive terms, in his assessment of a barrister’s duty owed to the Court. Belhoff asserts that no matter how zealously a barrister may advocate on their client’s behalf, all counsel owe their ‘paramount allegiance’ truth and justice, a ‘higher cause’ than any other lawyer – client obligation.

When reduced to language consistent with SRA Code objectives, Principle 1 is a mandatory, non-derogable duty. No legal professional can mislead the Court, its administrative branches, or an opposing party by intentionally acting (or falling to act) in ways that undermine proper justice administration.

In many respects, the EW cases that have considered SRA Code violations are entirely predictable. For example, in Vay Sui v SRA the Divisional Court upheld a Solicitors’ Disciplinary Tribunal decision to strike off a solicitor who deliberately engaged in conduct that compromised Upper Tribunal immigration proceedings.

The solicitor had discovered a ‘loop hole’ in the relevant Upper Tribunal procedures, where he would file emergency injunction applications to prevent his client’s pending deportation. The Court had little difficulty in finding a patent Code Principle 1 violation (along with other ethical breaches, such as failing to act in ways that promote public trust). The Court found that the solicitor’s ‘spurious or merely hopeless’ Upper Tribunal applications added to the justice system administration burdens, and increased the costs of government. As importantly, the Court noted that the solicitor had actually compromised his clients’ costs, combined with ‘engendering prolonged and unjustified expectations’ of success in avoiding deportation.

Commentary

Vay Sui v SRA is the quintessential ‘easy case’. It is the more nuanced, circumstance-driven interpretation and application of these Principles that presents greater solicitor regulation challenges. Wasserstrom’s ‘amoral technician’, and his related commentary commands even greater importance in this respect. ‘Moral worth’, as Wasserstrom employs this expression, is a particularly effective way to explain why solicitors must compartmentalise commitment to their Code obligations, and the diligence with which they must discharge these obligations, from any personal feelings they may have regarding their client, or the client’s cause.

One can readily imagine the problems that would result for individual clients, the legal profession, and the broader public interest if the following rules applied to EW solicitors. If solicitors were obliged to reject any opportunity where they would be representing, or advising clients who were involved in morally dubious activities or enterprises, solicitors would become the de facto legal system gatekeepers. A solicitor’s subjective moral views would be determinative of whether a private citizen could obtain professional legal advice. There is no doubt that as an ethical proposition, a solicitor can decline to act in circumstances where the solicitor determines that in good conscience, the solicitor will not be able to best advance their client’s best interests because the solicitor questions their client’s morality. This decision accords with Wasserman’s ‘amoral technician’, and Code requirements regarding client service standards.

In essence, such a circumstance would mean lawyers would only accept retainers where they liked the client, or their cause. By ensuring that lawyers can proceed without any professional qualms regarding ethical compliance, where the client or their cause is unpopular or controversial, public faith in the law and its institutions is correspondingly enhanced. The public will understand that by encouraging lawyers to represent their clients’ interests as vigorously and fearlessly as the law permits, the SRA ethical framework actually protects lawyers and the public. No one will be denied the opportunity to seek or obtain legal advice because the SRA ethical rules do not permit solicitors to arbitrarily decide whether a prospective client will be assisted.

Conclusions

The discussion points developed above support the following conclusions. Wasserstrom provided a masterful analysis of legal ethics, and the implications for lawyers and the public alike, in his 1974 commentary.

As the various comparisons made between Wasserstrom’s ‘amoral technician’ lawyer conception, and the SRA Code ethical requirements imposed on all EW solicitors clearly confirm, the current SRA approach advances the public interest. Solicitors are expected to separate their personal feelings regarding a particular client, or the client’s cause, to ensure that the client is properly advised and represented to the fullest possible extent allowed by law. Absent these crucial SRA Code ethics standards, and their implicit ‘amoral technician’ endorsement, the public might be denied vital legal services.

Bibliography

Vay Sui IP v Solicitors Regulation Authority [2018] EWHC 957 (Admin).
Legal Services Act 2007.
Ariens, M ‘The Agony of Modern Legal Ethics, 1970-1985’ (2014) 5 St. Mary’s J. Legal Mal. & Ethics 134.
Belhoff, M ‘’A view from the bar’: The tenth Sir David Williams lecture (TFV), Law Faculty, Cambridge University on 21st May 2010’ (2011) Denning L.J. 1.
Clark, K ‘The Legacy of Watergate for Legal Ethics Instruction’ (2000) 51(673) Hastings LJ 678.
Wasserstrom, R ‘Lawyers as professionals: Some moral issues’ (1975) 5(1) Human Rights 1.
West, R ‘The Zealous Advocacy of Justice in a Less Than Ideal Legal World’ (1999) 51 Stan. L. Rev. 973.
Law Society, ‘Outcomes-focused regulation’ (2017) [Online] Available: [16 May 2018].
MacMillan, B ‘Outcomes Focused Regulation: A Guide for In-house Lawyers’ (2016) LexisNexis [Online] Available: [16 May 2018].
Solicitor Regulation Authority (SRA) Code of Conduct 2011 (revised 1 November 2015) [Online] Available: [16 May 2018].

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Wasserstrom and Lawyers as ‘Amoral Technicians’

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