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Journal of the Institute for the Study of Legal Ethics

Publication Date

10-1-1996

Introduction

While practicing law on a daily basis, I represented a hospital seeking authority to give a blood transfusion to a baby over the objection of his Jehovah Witness parents. The hospital called late one evening, and asked if we could get an order immediately. The treating physician assured me that death was inevitable without the transfusion, and estimated the child's chance of survival as one in five with the transfusion. Without a moment of hesitation I replied, "Start setting up the equipment. We'll have the order before you're ready to go." I called the local district attorney's office. One of the lawyers there began to prepare the petition and order for the judge's signature. The judge was contacted at home, and agreed to sign the order as soon as it was delivered to his house. Start to finish, initial client request to final order, the process took less than an hour, and I made good on my promise that we would have the order before the doctor was ready to start the blood transfusion.

Swift justice if there ever was, right? Well, it certainly was swift, but whether it was justice continues to trouble me today. The baby did not survive, even with the transfusion. And while I am entirely confident that the child is not in hell because some lawyers and doctors decided to force foreign blood into his veins,' I am equally confident that we caused untold pain to the baby's parents, who had agonizingly decided that their baby's eternal life was more important than his temporal existence.

This experience led me to explore the lawyer's obligations in the factual circumstances that act as hypothetical fact patterns for this essay. These hypotheticals reveal the weaknesses in the liberal foundation of the "standard conception" of the lawyer's role. The "ideals" of partisanship and nonaccountability embodied in that conception become incoherent when used to justify advocacy of an outcome chosen by the lawyer, and a mockery of morality when the lawyer seeks an outcome contrary to the client's expressed desires. The discord between the intentions and results of these ideals is due in large part to the implicit "conception" of the client as autonomous rights-bearing individual. Such an understanding of clients is patently false when applied to children or disabled adults, and is dangerously incomplete when dealing with adults deemed legally competent.

In this essay I suggest that legal ethics would be more consistent with the reality of day-to-day practice, and provide greater guidance in the dilemmas that do arise, if the current understanding of clients as autonomous rights-bearers is replaced by an understanding which recognizes the intrinsic dignity of each person, deriving not from their capacity to reason and be autonomous, but rather from their innate capacity to seek, know, and move toward the objective good.

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