The Bad Man's Moral Dilemma

-- By KalliopeKefallinos - 25 Feb 2010

I plan to argue that while the “bad man” approaches the law as distinct from ethics, there are situations in which the lawyer will be compelled to make moral judgments. Specifically, when the existing legal system does not easily facilitate his client’s end, the lawyer must decide whether to continue to pursue the end.

The successful lawyer approaches the law like a "bad man"

According to Holmes, the “bad man” is someone who “cares nothing for an ethical rule” but structures his behavior to “avoid [paying] money” or going to jail. It follows that the “bad man” is not necessarily “bad” but rather someone who acts independently of ethics, viewing the law as its practical consequences. The implication is not that ethics is useless—after all, Holmes admits that “the practice of [ethics], in spite of popular jests, tends to make good citizens and good men.” Rather, Holmes proposes that to be a “master of law,” a future lawyer must look at the law as its material consequences.

A successful lawyer, then, is a “bad man.” And in everyday practice, a successful lawyer views the legal system as a maze, predicting which paths he needs to take to ensure the attainment of his client’s particular end.

Even for a successful lawyer, it is possible that existing legal channels will not easily facilitate the attainment of a client's particular end

Usually, successful lawyers are able to use their predictive powers to know how a client’s case will turn out as soon as they hear the facts. For example, a woman wanting to get a divorce might have a 60 – 90% of success given the surrounding law and legal reality, as long as the lawyer gets together evidence Y and documents Z. The rate of success depends on which path the lawyer takes in the larger legal system—that is, which arguments he makes, which court he files in, which judge he presents in front of, etc.

Of course, being able to predict outcomes is not identical with being able to find a way to win every case. Some clients will have ends which the system does not facilitate easily, due to either some explicit law or some underlying legal reality. The obvious case is the former—for example, the man who wants to take a second wife has a negligible chance of success given laws which prohibit polygamy.

As an example of the latter, I present the case of Joseph Stack. More specifically, in his suicide letter, Stack emphasized how the tax system was unjust, that the tax laws made it exceeding difficult for him and others like him to earn an honest living. Although he realized early on that the root of the injustice lied in the legal reality of the rich controlling the system at the expense of the poor, Stack nonetheless educated himself on tax law and strove to use the existing legal channels to change the legal system for the better. Despite his efforts, the government “universally treated [him] as if [he] was wasting their time.” Stack had reached a dead end—that is, he finally understood that no matter how strictly and faithfully he maneuvered through the existing legal channels, the legal reality of rich over poor was a roadblock he could not overcome.

Of course, it is important to note that part of Stack’s difficulty was the result of his accountant being incompetent/ deceiving him. Nonetheless, given the underlying balance of power, it is unlikely that Stack alone would have been able to evoke change in the tax system. The government would still bail out the rich and leave people like him to “rot.” A “bad man” lawyer representing a client like Stack, then, would be able to predict that the legal system would not easily facilitate Stack’s end. And so, being able to predict such an outcome, the question becomes what options, if any, would be left for the lawyer to pursue.

Upon realization that his client's particular end cannot be easily accommodated by the existing legal system, the "bad man" must ultimately make moral judgments

Because he views the law with an eye towards prediction, the successful lawyer would determine how much a judgment in Stack’s favor would ultimately cost. After all, one implication of living in a legal reality where the rich rule at the expense of the poor is that the poor, too, can get their own ends satisfied—for a price. The lawyer will weigh the variety of paths within the legal system he might take. For example: he can exploit the system’s human efficiencies by paying off officials; he can plan the overthrow of the system by force; or he can thrust all his effort into changing the existing legal channels to accommodate the ends of people like Stack. If in his calculation he finds the end prohibitive given limited resources like money and time, he can either refer Stack’s case to a better-funded lawyer or simply tell Stack his end is practically impossible.

And yet, the lawyer’s decision of whether or not to continue to pursue Stack’s case would not be mere cost prediction free of moral judgment. After all, while a successful lawyer for Holmes must be able to view the legal system as unconnected from ethics, it does not follow that his own behavior within the system is free from moral judgment. Accordingly, the lawyer would need to decide whether the client’s end was morally worthwhile based on his own personal principles (or those of the groups in which he participates or receives support). Stack’s lawyer would therefore find himself balancing the cost of further fighting with the moral significance of furthering justice in the tax system.

If he chooses to turn Stack away, could he live with himself as he watches the consequences of his inaction unfold? After all, even the “baddest” of men would cringe watching Stack crash into the IRS building.

• I think knowing my original idea will help the feedback process, so here's what I was trying to tackle: When a lawyer has something he wants to accomplish, but he sees that this something goes against established norms within the legal system such that it will be very difficult (if not impossible?) in practice to accomplish, what are his options? Should he try to change the system, or are the norms so pervasive he should better focus on overturning it? But that sounds a bit extreme. Should he create new organizations? Where would he get the money? In class, I think Eben gave one answer: become an expert on something such that those who control the current system will need your expertise in the future. This would help secure the funding aspect. The lawyer chips away at the source of the power. -- KalliopeKefallinos - 21 Mar 2010

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, KalliopeKefallinos

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list