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Role Differentiation and the

Traditional Conception of the Lawyers Role


One of the central questions in legal ethics is whether it is possible to be a good person and a good lawyer.
The question is not whether a lawyer may take actions that are unlawful or forbidden by the ethical rules. Rather,
the issue is whether a lawyer having committed herself to represent a client may disregard the clients
instructions to use lawful and ethical means in pursuit of a lawful end on the ground that the lawyer disapproves of
either the means or the end.1 This is an issue about which you will learn more during your Professional
Responsibility course. This discussion is intended only to introduce you in a general way to this complicated topic
about which much has been written.
The traditional conception of the lawyers role begins by acknowledging that being a lawyer involves the
assumption of distinctive duties and adherence to a set of norms that are appropriate to this role . It has a moral
component: Lawyers may appropriately take actions on behalf of their clients in their professional capacity that
would be ethically questionable in other contexts. The morals of the situation, according to this view, walk in the
door with the client. Consider the following example:
Ed and Edna, a married couple, ask Lou, a lawyer, to prepare new wills for them.
They tell Lou that they want new wills in order to disinherit one of their sons
because he has married someone of a different religious faith. Lou personally
believes that discrimination based on religion is wrong.
The traditional conception of the lawyers role dictates that Lou must prepare the wills disinheriting the son. Lou
will not be held personally morally accountable for the discriminatory nature of his actions in drafting the new wills.
Although he may refuse to do any legal work for Ed and Edna, the traditional view is that he should not be quick to
do so merely because he disagrees with their moral choice.
Role differentiation has three normative components:
1.
Neutrality. Lawyers should be detached from their clients goals or desires. They should not
judge the appropriateness of the clients goals. Lawyers should be neutral as to the moral desirability of the clients
lawful choices.
2.
Amorality. Because of the neutrality principle, the lawyer may not be held morally responsible
for the consequences of the clients lawful choices. This principle holds even when those choices cause harm to
others.
3.
Partisanship. Lawyers should evidence zeal and a commitment to advancing their clients goals.
They should be willing to employ any lawful means to accomplish their clients lawful goals. So-called zealous
advocacy is characterized by, among other things, loyalty and a commitment to keep clients confidences. A
corollary of zealousness and loyalty is that lawyers should be reluctant to consider the desires or needs of others
who are not their clients.
Despite the foregoing, the traditional conception does envision that a lawyer will assist the client with
understanding the moral and other implications of the choices the client makes. This is sometimes referred to as
the obligation of moral consultation. In other words, lawyers should not assume that their clients do not care
about or want to consider the consequences of their decisions and they should actively seek to initiate and facilitate
such discussions. These obligations begin after the lawyer agrees to represent the client and the lawyer may
decline to do so if the clients goals are morally repugnant to the lawyer. A lawyer may also refuse to represent a
client who insists that a lawyer use tactics she finds offensive. As commentators have pointed out, however, [t]he
lawyers decision to accept or to reject a client is a moral decision for which the lawyer can properly be held morally
accountable.2
Several related justifications for role differentiated morality exist. A democratic society is one that values individual
freedom, autonomy, and pluralism. Lawyers play a critical role in vindicating those values. Another justification is
that lawyers are agents for clients who are the principals and in control of the goals of representation. The
traditional, differentiated conception of the lawyers role is said to further the goals of the client-centered
approach to representation. Lawyers, according to this view, are a means to accomplish ends which are determined
by their clients. Furthermore, they have assumed fiduciary obligations to act to advance the interests of clients who
are relying upon them. Although lawyers as fiduciaries are obligated to act in their clients best interests, clients

1 Monroe Freedman and Abbe Smith, Understanding Lawyers Ethics (LexisNexis 4th
Edition 2010) 45.
2 Id. at 70.
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ordinarily determine what choice or course of conduct is in their own best interests. Finally, many believe that the
adversarial system functions best when clients are represented by zealous advocates who are unfettered by
personal moral conflicts.
Some commentators have criticized the traditional conception of the lawyers role and have advanced
alternative views. Critics charge that role differentiation causes lawyers to act in amoral and, occasionally, immoral
ways.
They argue that this approach makes lawyers complicit in inflicting harm on non-clients and society in
general. Lawyers become agents for ratifying privilege, disproportionate power, and unjust laws. They charge that
the doctrine ignores inequities in access to competent representation at every legal and political level in American
society. Additionally, they claim that, at a personal level, role differentiation requires a degree of moral indifference
and emotional compartmentalization that is harmful to or unattainable for many lawyers . Critics contend that
lawyers fail to have the envisioned moral consultations with their clients in many cases and assume (often
erroneously) that their clients favor a morally questionable approach that maximizes the clients interests over a
more altruistic one. According to this view, lawyers act in their dealings with third parties as if they are
representing the Holmesian bad man when that may not be so. Finally, as for client autonomy and control, critics
of the traditional conception say that this is often an illusion in practice for clients who are poor and powerless.
Critics charge that lawyers in these situations often abandon their traditional role, take control of decision-making,
and project their desires onto their clients or the situation.
Some alternative views would direct lawyers to seek justice in each case and would allow lawyers to
nullify or subjugate their clients lawful goals in pursuit of a higher purpose. 3 They would allow lawyers to
undermine or subvert the enforcement of unjust laws. These alternative approaches allow or require lawyers to
substitute their own assessment of what is best in a situation even though they have assumed fiduciary obligations
to act for their clients. At their cores, alternative conceptions of the lawyers proper role assume that there is a
recognizably desirable moral point of view or a conception of justice that is correct or best.
Consider this example:
Archibald is a wealthy client who consults Louisa, a tax attorney.
He desires to use whatever means the tax laws allow to minimize
the amount of taxes he owes. Louisa knows about a tax loophole
in a recent law enacted by Congress that favors wealthy taxpayers.
Louisa personally believes that the tax system is unfair to middle
class taxpayers who pay a disproportionate share of their income
in taxes.4
Alternative conceptions of the lawyers role would suggest that it would be appropriate for Louisa to refuse to
advise Archibald about the availability of the loophole because of her assessment of the injustice inherent in
making exceptions to tax laws that favor only the wealthy.
The criticisms of role differentiation were and are most compelling in situations where a clients lawful choice or
goal will inflict serious physical, financial, or emotional harm on third persons and the existing ethics rules do not
seem to recognize or account for that harm sufficiently. The assigned problems are designed to allow you to think
through some examples of those situations.

3 Id. at 48.
4 Id. at 47.
2