When I teach Professional Responsibility, one of the most interesting discussions we have concerns Rule 2.1: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”
My experience is that students are, in general, highly resistant to the permissive injunction to lawyers to offer “moral, economic, social, and political” advice to their clients. They don’t see that as within the lawyer’s role. The lawyer should be “neutral” or “nonjudgmental.” Moral and political non-neutrality is for other people. The lawyer’s role is to fulfill the client’s desires. Morality and politics has nothing to do with it.
I have always found this position unpersuasive. In no way is a “neutral” or “nonjudgmental” or “noninterventionist” or “simply uninterested” position non-moral or non-political.
In the first place, a neutral or putatively noninterventionist position slides imperceptibly into a consequentialist mode of moral and political reasoning. Decisions that implicate moral or political considerations (and many decisions for which a lawyer’s counsel is sought do this) are simply assessed from a particular cost-benefit vantage point–a consequentialist calculus from the perspective of one, the client. But the lawyer does not escape moral or political judgment by tacitly adopting this kind of consequentialism. She is neck-deep in morality and politics! The real problem is that she has adopted a moral and political world view without realizing it. Indeed, she has adopted a position against those moral and political systems which at times demand non-consequentialist choices.
Second, the neutral or allegedly uninterested position puts a thumb on the scale of the egotistical choice. The right thing to do is what the client wants, and what the client wants serves the client’s interests. Again, this is a perfectly plausible position to adopt as a lawyer. But it is a deeply moral and political position. The morality and the politics may be unattractive; indeed, they may be downright ugly. But there is no escaping the political and moral conviction that undergirds this view, no matter how hard one may want to escape it. There is no such thing as a morally or politically neutral lawyer.
All of this came to mind when I read my friend Mark’s two posts about whether Pope Francis is a “nonpolitical” pope. There is no such thing. It is unnecessary to rely on the overtly political comments in Pope Francis’s recent interviews to prove the point. To be sure, one could easily counter the “nonpolitical” argument by pointing to the Pope’s criticisms, in these selfsame statements, about political liberalism; or one could point to his emphasis on economics and the Church’s role in the alleviation of poverty; or one could point to his relativist conception of moral conscience. All of these views have profound and direct moral and political import.
But this is all, to some degree, beside the point. At least in this way, popes are closer to lawyers than to mystics. The pope is the head of the institutional Catholic Church (not only that, or even primarily that, but certainly that); he is not St. John of the Cross. Mystics live in isolation from society and politics. Popes do not. And it is inevitable that a pope’s views on those questions about which popes are called on to give their voice, their counsel, and their wisdom will implicate moral and political judgment.