Law in Contemporary Society

A Lawyer's Competing Obligations

-- By KatherineMackey - 09 July 2012

The Problem

A few weeks ago I had a slow day at my internship—I’m working at a U.S. Attorney’s Office—and I spent the afternoon observing a sentencing hearing. The courtroom was sparsely populated: it was only me, an older couple (who turned out to be the defendant’s parents), the judge, his clerks, the defendant, the defense attorney, and the AUSA. The defendant, D, was 22. He had sold crack to an undercover officer and because he had two prior adult convictions for what the AUSA described as “altercations” with the police, the sentencing guidelines suggested a sentence of 10 years. The AUSA, arguing that D had already tried and failed several times to straighten out, asked for a sentence of 9 years. The defense attorney pointed out that D had sold less than $50 worth of crack and characterized his altercations as “tussles.” She argued that the writers of the sentencing guidelines had not intended the repeat offender enhancements to apply to convictions like his. She said that more time in prison would be counterproductive for someone who was so young and who could still turn his life around. When D was given a chance to speak, he apologized to his parents for being an embarrassment and a disappointment. He sounded so, so young. The judge sentenced him to 8 years.

I have loved my internship and it has made me think that I would like to be an AUSA. Watching the sentencing hearing, however, made me uncomfortable. The sentence seemed grossly unfair and it made me wonder whether I want to do a job that would require me to subordinate my own vision of a just outcome to my obligation to zealously represent my client or employer. The question of how, as a lawyer, I can balance these two competing imperatives is one that I’ve been considering all semester.

One Solution

The response to this question that is the most feasible for the most lawyers is for a lawyer to place her belief in the legal system rather than her own idea of what a just result would be. In this case, a lawyer can see zealous advocacy on behalf of her client, regardless of the justice of their cause, as a necessary part of the system that the lawyer believes in. This shifts the burden of deciding the justice or injustice of a client’s case from a lawyer to a judge or a jury. Working as part of a just system, rather than working on behalf of a just cause, is as close as most lawyers can get to balancing these competing obligations. If a lawyer works for a large firm, her cases might often not have a very close relation to what is just—for example, an associate who works on litigation between banks resulting in a few cents per share to the shareholders of one institution or another. Prosecutors—like the AUSA I watched--don’t have much choice in their cases, and their obligation is to vigorously protect the interests of the government, which will only coincidentally be related to achieving a just outcome.

A Better Solution?

I do not think that believing in the justice of the system rather than the justice of a cause is wrong, but I do not think that I could be satisfied with a career that forces me to disregard my own convictions of what a just result is in any given case. For me, Robinson’s practice represents a better way these competing obligations can be harmonized. He is in a position to choose his clients and being in the position allows him to fulfill both obligations at the same time. The story of his Fujianese-Serbian client shows how this is possible.

Robinson sees the Fujianese-Serbian kid as a criminal who is not very culpable. He is dumb, has a father who cares more about reforming his character than helping him, and has a home life that does not seem to have made him into a functional adult. He’s also only twenty and has not grown out of his adolescent impulsiveness. All those mitigating factors weigh against the fact that he broke into a home while carrying an eight-inch switchblade. Robinson claims that the kid is “not really bad” –which is our only trustworthy moral evaluation of him, since we don’t know exactly why he was breaking into the house, or what he would have done if he hadn’t been caught. What this “not really bad” kid gets in return for his somewhat-bad-but-not-terrible crime is a beating by the AUSA plus a year in jail waiting for the trial, and any associated psychological stress. Maybe the sum total of his punishments is too harsh for the crime he committed, but the discrepancy is not egregious. Robinson worked on his client’s behalf to make sure that he was only sentenced to time-served, which was the minimum sentence that the kid could have gotten and accords with Robinson’s moral judgment of the kid. In this case, he was able to align his broader duty to society to make sure that justice is done with his duty to represent his client’s interests.

I recognize that, as a young lawyer, I will not immediately be in a position to run my practice in the same way that Robinson does. Even if I were to start out as a solo practitioner, it would take me a long time to be in a position where I could choose my clients based on what I see as the justice of their causes. If I’m not working for myself right away, then I’ll be representing the interests of clients that someone else chooses for me. My short term goal is to put myself in a position to take some cases that I do believe in—possibly through a formal pro-bono program—while working to put myself in a position where this is the only thing that I do.


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r6 - 22 Jan 2013 - 20:10:35 - IanSullivan
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