Alienation, Violence, and the Law

-- By DanielMargolskee - 28 May 2009

A lawyer is a person who does things using words. But what the lawyers we’ve encountered actually end up doing with those words is frequently violent--violent either to others, or to themselves, or to both.

The seeds of conflict are embedded in the structure of the relationship between lawyer and client: the lawyer is ethically required to treat his client’s interests as largely identical to his own, but the client’s interests often aren’t identical to the lawyer’s. As Wylie says in “Something Split,” a lawyer “has to be capable of deep moral compromise. You have to do things, be a part of things, you don’t want to be a part of” (p. 41).

Is it possible to have a career as a practicing lawyer, without either compromising one’s own integrity or failing to pursue the client’s interests vigorously?

One More Case Study

After 26 years in prison for a murder he hadn’t committed, Alton Logan was exonerated in May 2008. The actual killer, Andrew Wilson, had confessed the crime many years earlier to his two court-appointed attorneys, Dale Coventry and Jamie Kunz. Since the lawyers were bound by attorney-client privilege, they could only come forward after Wilson died last year.

As a matter of professional ethics, it is clear that Coventry and Kunz were prohibited from disclosing what Wilson had told them. But it is equally clear that Coventry and Kunz’s silence would effectively condemn an innocent man to prison until Wilson’s death. Under such circumstances, keeping Wilson’s confidence might be fairly described as doing considerable violence to Logan. Breaching the confidence, however, might inflict a different sort of violence: it could “put Logan’s head in the noose,” and would open Coventry and Kunz up to sanctions and the possibility of disbarment.

Coventry and Kunz were faced with the irreconcilable dilemma of either allowing a serious injustice to happen, or to prevent it by betraying their client, potentially losing their license in the process.

In “Something Split,” Wylie and the unnamed lawyer’s practice “ruin[s] thousands of lives”--but this is only apparent when they take a moment to stop and “think it through” (41), and both were paid handsomely to try to ignore those ruined lives. In contrast, Coventry and Kunz were confronted full in the face with the life that would be ruined by the decision, renewed every day, to preserve their client’s confidentiality.

The decision not to reveal the secret was clearly the professionally ethical decision--and under some balance-of-harms analyses, it is arguably even the moral decision. But it is also clear that Coventry and Kunz desperately wanted to reveal their client’s secret. They begged him to release them from their duty, and prepared an affidavit dated years ago, in case they were later permitted to reveal the information.

In reading Coventry and Kunz’s story, I wonder whether they felt the same “split” that Wylie’s partner felt, at some point in the 26 years they kept this horrible secret; whether they experienced the same “snap” the unnamed partner felt when living the lawyer’s compartmentalized double-life all of the sudden became unbearable (p. 41). If so, I wonder how that snap expressed itself. Was it through violence-against-self--in the form of depression and drinking? Or through violence-against-others--lashing out against friends and loved ones or, as Cerriere and Singleton did, at vulnerable strangers like the mop boy and the shoe salesman?

The Man Who Knows What He Wants

In this semester’s readings, we’ve encountered only one person who was wholly unwilling to compromise himself: Bartleby. (Perhaps tellingly, Bartleby was also not a lawyer.)

Bartleby was unwilling to balance harms or choose lesser evils. Bartleby also refused the attempts by the narrator to frame his choices by imposing an “assumption” on Bartleby (p. 20). Instead, Bartleby knew exactly what it was that he wanted, and once he got it, he refused to relinquish it, or to accept the terms the narrator tried to impose on him. Indeed, his refusal to even pretend to engage with the narrator or to be “reasonable” leads the narrator to feel “disarmed” and “unmanned” (14).

His calm persistence leads the narrator to feel a murderous rage, though the narrator is somewhat queasy about following through (23). Bartleby’s story does end with violence, however, when subsequent occupants of No. -- Wall Street use the brute force of the State to have Bartleby thrown in prison.

But even though the story ends with violence, the violence is not Bartleby’s. Though Bartleby is a tragic figure, he is never forced to compromise with himself or with others.

Lawyering Without Alienation

The most obvious solution, if we want to avoid compromising ourselves in our future careers, is to pick our clients carefully--to only represent those clients who we actually want to win, whose interests actually align with ours. This is a luxury most lawyers don't have. Certainly the corporate and transactional lawyers we read about don't have that luxury, but neither do public defenders like Coventry and Kunz, or other criminal defense attorneys like Robinson.

• I think the idea that all dissociation engenders violence is interesting. My own belief, for what it may be worth is that dissociation results from trauma, and I do not think that violence, either expressed or suppressed, is the only possible response to our traumatic suffering.

• I think it is also important that your ideas depend on the proposition that a dissociative split necessarily occurs over the conflicts between the lawyer's own interests and those of his or her clients. That such a splitting process can occur we have both seen in lawyers' talk about their lives (Wylie is indeed a good example), and experienced ourselves, though we weren't always able to feel and acknowledge it—most people still do not think of themselves as having multiple personalities, after all, and believe that's some crazy thing I made up. But on the other hand, I've never suggested and don't believe that there's anything necessary about dissociative responses to conflicts, whether those conflicts are professional, ethical, material, familial, or intrapsychic.

• You see in Bartleby what I hoped would be seen: he is neither an emblem of illness nor of wellness, but of stoutness, of the simple human ability to endure with integrity that when well-nourished is the precursor to greatness. It is not only that Bartleby's tragedy is humanity's tragedy: of that even such a man as the narrator, who lives to substantiate the faux-Buddhist insight that every expectation is a resentment under construction, can be conscious. It is also that Bartleby's triumph would have been, had it ever been, made of the same stuff that made the triumph of Abraham Lincoln, of Meriwether Lewis and George Rogers Clark, or of John Chapman. Bartleby needn't be a lawyer to have something positive to teach about seeking justice.

• The practice in which I engage with the young lawyers who work with me is designed around a movement, as yours might be if you wanted to minimize conflicts with your clients' aims at the level of social goals and motivations. But in all practices, including ours, there are conflicts of all sorts—with and between the interests of clients, with and between the interests of the lawyers and others who share our practice. We don't think those conflicts require us to dissociate from one another or within ourselves: we believe they require us to communicate internally and externally so as to be aware of our conflicts and to manage them as transparently and consciously as possible.

• Of course, we are not in criminal practice. In fact, we have chosen our clients for their honesty, in the sense that we represent a segment of society that even its adversaries consider honorable. What Robinson faces we do not face; Coventry and Kunz are outliers even further divorced from the world of ethical engagement as it is usually met.

• This essay is an unmistakable and important improvement over the earlier work, because it has acquired some capacity to take real intellectual risks. Feed that part of yourself, if you can, further, despite law school's tendency to push risk-averse control-freakness to ever-higher levels of insecurity and self-doubt.

Alienation, Violence and Law School

• Eben: Thank you for your comments on my papers.

• I read your comments on this paper after reading EvaluationPolicy, as well as your discussion of meat grades. I thought it might be useful to clarify what I was getting at in this paper, in light of those two essays. (This is a draft response, which I hope to sharpen over the next few days.)

• I certainly take your point that, in law practice as in life, "there are conflicts of all sorts," and that these conflicts do not require that one break off communication--I don't think that's what I was suggesting, exactly. I think you're right to note that communication can help to mitigate the harm that arises from conflicts: Coventry and Kunz, for example, were finally able to persuade their client to agree to release confidentiality upon his death, with the result that Logan was imprisoned for 26 years instead of the rest of his life. I think this is a valuable observation that I wish I had put in my original essay---that even if we have clients whose interests are not aligned with ours, communication and transparency can help mitigate the resulting violence. Communication can also help us make conscious choices about the harms we inflict, to help us avoid the sort of unthinking, reactive lashing-out of Cerriere, Singleton, and Wylie's partner.

• Even if conflicts don't require us to "dissociate" by breaking off communication, however, they do end up forcing us to balance harms and compromise. The quantum of the resulting violence can be mitigated through communication, when that communication is aimed at trying to bring interests as nearly as possible into alignment; and the resulting good may also be worth the price, under some sort of cost-benefit analysis. But the harms are there nevertheless.

• I do think that, in some sense, that's embedded in the structure of the relationship between client and attorney, as principal and agent. Perhaps it's also embedded in any collaborative effort. We can learn stoutness from Bartleby, but he has nothing to teach us about how to be someone's agent, or how to collaborate with others successfully. Bartleby does not mitigate the harms of conflicting interests by talking it out; he refuses to be complicit in the injustices of the world, which is the source of his greatness, but also the source of his own peculiar dissociation from the world, and a cause of his eventual death.

• So, what does this have to do with your two essays on law school grades? I think what I'm terming the "alienation" and "violence" resulting from conflicts, you've described in EvaluationPolicy as "injustice" and "complicity" with "occupying forces." The interests of teachers are, of course, never identical with the interests of their students. But the grading structure, which is one channel mediating the relationship between law teacher and law student, also helps to constitute that relationship in ways that are pedagogically unsound, and which do violence to students as well as teachers. If we want to be teachers and students in a world where the relationship between teachers and students are mediated and constituted thusly, then there is no avoiding some measure of complicity with the harm this structure causes, some measure of alienation and violence.

• What does one do about this? Bartleby would have nothing of it; there is no way he would submit himself to the indignity of being graded as a student, and he would refuse to be complicit by handing in grades as a teacher. Which is why he wouldn't last long as either a student or a teacher under the current regime, just as his own occupation of No. -- Wall Street did not last long in the face of the overwhelming violence of the state. If we're interested in actual change, and if we want a more just world, we have to balance the harms of our complicity in ways that Bartleby refused to do, while consciously confronting and managing the fact of that complicity in ways that Cerriere, Singleton, and Wylie's partner were unwilling to do.