What I do plan to salvage with this "re-write," however, is the larger idea that I was trying to penetrate—that is, the question of what tools the creative practitioner can use in order to be successful in the face of adversity. Over the course of the semester, I picked up on two such tools: (1) foreseeing future legal trends and becoming an expert on their subject matter, and (2) mastering oneself and one’s interpersonal relations by understanding that humans have “multiple personalities.” Because I feel as though (1) was discussed more in-depth than (2) in class and on the wiki, I plan to investigate (2) more fully here.

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.”

This does not at all follow. In the first place, Holmes said that "if you want to learn the law, and nothing else you must look at it" as a bad man. I pointed out at the time that these qualifications are extremely important, and for some reason law student writing insists on generalizing them both away, as you do here. Holmes said nothing about practicing like a bad man, he said the opposite, as you notice. In the second place, you blow straight through another limitation here, by stating not even that a practitioner "looks at" law as a bad man does, but that the practitioner is a bad man. For this conclusion, there is no logical support whatever.

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.

So?

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.

No. Every successful lawyer predicts "maybe" on the basis of the facts. The lawyer's stock (and correct) answer to every question is "it depends."

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.

A poorly chosen example. In 49 out of the 50 states, New York being the exception, we have "no fault" divorce, and any woman who wants a divorce (or any man, for that matter) gets one. You would have been well advised to check.

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.

It depends. You must give precise meaning to "take a second wife" in order to know. Almost all the phenomena of marriage can be duplicated in the context of polyamory, through one legal device or another, even if the "first wife" is indeed to remain continuously married to "her" husband throughout the process. (One of the richest men in America openly lived in such an arrangement for years, until the death of his first wife simplified his arangements.) So I would say that the man who wants to take a second wife has a certain chance of success unless he defines his objectives in an unusually intractable fashion.

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.

No, that's a quite impossible interpretation of events. He found instead that those who insist upon turning themselves into personal churches to evade income tax won't get away with it, no matter how much Kool-Aid was mixed with the snake oil they bought from the evasion inducer, and no matter how much they believe the crazy literalist interpretation of the tax code he taught them.

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.

What a good lawyer could have done was to give Stack an accurate opinion on tax law and make him believe it. Any lawyer with decent basic skills could have ended his stand-off with the IRS over the first episode, by negotiating a payment schedule for him, after which the Service, once he was paying them something regularly, would have backed off. A good lawyer could not only have helped Stack gracefully climb down from the first confrontation, he could have taught Stack how to select and supervise a tax accountant (a skill I've had to teach a number of clients over the course of my practice). This in itself might have been sufficient to prevent the second and final confrontation, and would at any rate have made it more likely that Stack would seek advice from someone reliable again before descending into his suicidal last stand.

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.

I don't think any of those choices represent the real possibilities facing the real lawyer.

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.

This is a false set of conclusions from false premises. Stack's lawyer doesn't have to balance fighting against furthering justice, he has to identify ways to make compliance with the income tax law acceptable to Stack and to put the Service behind getting its money in a way Stack can accept. This is much more likely to be about finding win-win solutions than about helping a man resist single-handedly the power of the government.

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.

No, the bad man wouldn't care about that at all, because he doesn't care about anybody but himself. The person who feels bad about turning Stack away is the actual professional, who isn't a bad man at all.

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