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 BRENDAN F. BROWN LECTURE
AND RESPONSE

LEGAL ETHICS AND THE GOOD CLIENT*

Thomas L. Shaffer**

The distinctive feature of ethics in a profession is that it speaks to the

unequal encounter of two moral persons. Legal ethics, which is a subject of
study for lawyers, therefore, often becomes the study of what is good-not
for me, but for this other person, over whom I have power. Legal ethics
differs from ethics generally: ethics is thinking about morals. Legal ethics is
thinking about the morals of someone else. It is concern with the goodness of
someone else. In this view, legal ethics begins and ends with Socrates's ques-
tion to the law professors of Athens: "Pray will you concern yourself with
anything else than how we citizens can be made as good as possible?"'
The subject in legal ethics is, in this way, the client's goodness, but legal
ethics does not focus on the client's conscience. Legal ethics is complicated
by the fact that the discussion of this other person's morals is focused not in
his conscience but in mine. Legal ethics is thinking about my client's morals,
but I am the one who is thinking. Most of our discussions-in committees
of lawyers, in bull sessions, in law school, and with our spouses at dinner-
are on what a lawyer should do about his client's morals.
This is a very difficult situation. Martin Buber, the great, prophetic, mod-
em teacher of the theology of human relationship, the person who formu-
lated the notion of the I-Thou relationship as a foundation for moral life,
despaired of professional relationships. He thought it was all but impossible
for a professional in the modern world to look at his client and see a Thou
rather than an It: I can see that you want to do it, he said, but you cannot;
the sides are too unequal. The situation is not only difficult, Buber said-it

* Brendan Brown Lecture, Catholic University of America, October 3, 1986.

** B.A., J.D., LL.D.; member of the Indiana Bar; Professor of Law, Washington and Lee
University. I am grateful for the wise assistance of Monroe Freedman, Stanley Hauerwas, and
Stephen L. Pepper.
1. White, The Ethics of Argument: Plato's Gorgias and the Modern Lawyer, 50 U. CHI.
L. REV. 849, 860 (1983).
 Catholic University Law Review [Vol. 36:319

is tragic.2
It is also a morally perilous situation for lawyers. It is an invitation to
hubris-to arrogance. Most discussion in legal ethics these days is discus-
sion of how a lawyer can protect herself from her client's bad morals. Mod-
em legal ethics assumes that clients corrupt lawyers-that they are, to use
an old Catholic notion, occasions of sin, like R-rated movies and bad com-
pany. Sometimes lawyers are stern, wise, parental; and clients are children
who have to be led, forced, or tricked into behavior that will not make law-
yers uncomfortable. (When I was a young lawyer more space was given to
advertising, solicitation, and unauthorized practice; but the Supreme Court
has abolished that part of the syllabus and we are left to talk about the bad
morals of clients.)
If we can manage to regard our client as a Thou and not an It, and if we
manage to avoid hubris, the issue is this: What should I want for my client?
The possible answers are three. (Lectures always have three answers. Ten
to fifteen minutes each.) The first answer, to the question, "What should I
want for my client?" is: I should want my client to be right. The second is:
I should want my client to be free. And the third is the Socratic one: I
should want my client to be good.

I. RECTITUDE

The first answer-I should want my client to be right-is traditional in

American legal ethics. It is associated with Thomas Jefferson, with the re-
publican lawyers who preserved the legal order in our Revolution. Willard
Hurst called them the golden era of American lawyers. 3 They were "repub-
lican" in their denial of a distinction between public and private morals.4
Theirs was the legal ethic of the gentleman. David Hoffman first gave it
systematic expression, in his essays on professional deportment of 1817 and
1836.' Hoffman was a prosperous, stuffy, resolute Baltimore lawyer and law
teacher who typified what Alex de Toqueville noticed about American law-
yers of the 1830's: They were aristocrats; they tempered democracy by gain-
ing the trust of the people and then taking charge of the community; they

2. M. BUBER, THE KNOWLEDGE OF MAN 171-72 (M. Friedman & R. Smith trans.
1965).
3. J. HURST, THE GROWTH OF AMERICAN LAW: THE LAW MAKERS (1950).
4. Bloomfield, David Hoffman and the Shaping of a Republican Legal Culture, 38 MD.
L. REV. 673 (1979).
5. 2 D. HOFFMAN, Resolutions in Regard to ProfessionalDeportment, in A COURSE OF
LAW STUDY 752 (1817) (2d ed. 1836).
1987] Legal Ethics

were trusted by the people, but they did not trust the people.6
Judge George Sharswood, Chief Justice of Pennsylvania, founder of the
law school at the University of Pennsylvania, a Presbyterian Sunday School
teacher, brought the republican legal ethic into the next generation. A lot
was happening to the legal profession in the middle of the 19th century: The
country was getting ready to go to war-its bloodiest war-ostensibly over a
set of legal questions; the robber barons were in their youth and they were
looking for lawyers to help them. Sharswood thought the moral perils for
lawyers were serious: "The temptations are very great . . ,7 he said.
"There is no class ...among whom moral delinquency is more marked and
disgraceful." 8 His faith was that the republican gentlemen-lawyers could
assure rectitude among their restless clients: "It is ...the duty of counsel,"
he said, "to be the keeper of the conscience of the client; not to suffer him,
through the influence of his feelings or interest to do or say anything wrong
in itself, of which he would afterward repent." 9
Hoffman's and Sharswood's legal ethic found its way, after the war, into
the earliest state codes-most notably into the work of Judge Thomas
Goode Jones, Confederate war hero, frontier judge and legislator, eventually
governor of Alabama, and drafter of the 1880's Alabama code that was the
model for other state codes and the A.B.A. Canons of 1908: "The client
cannot be made the keeper of the attorney's conscience," Jones said." ° He
was worried about the client as an occasion of sin. He was less confident
than Sharswood that lawyers could assure the rectitude of clients: "The at-
torney's office does not destroy the man's accountability to the Creator, or
loosen the duty of obedience to law and the obligation to his neighbor; and it
does not permit, much less demand ... any manner of fraud or chicanery,
for the client's sake," he said.
Republican legal ethics says that what is important is that the client do the
right thing, and that it is the lawyer's job to see to it that his client does the
right thing. In this, republican legal ethics paralleled the development of
professional ethics in journalism, in medicine, in the clergy, and in teach-
ing. " It was and is an ethic for professional life that tends to ignore, if not
to deny, the possibility that the person served-the client, the patient, the

6. A. DETOCQUEVILLE, DEMOCRACY IN AMERICA 288-90 (P. Bradley rev. ed. 1954)

(1st ed. 1835).
7. Sharswood, Essay on Professional Ethics (1854), in 32 A.B.A. REP. 168 (1907).
8. Id. at 170.
9. Id.
10. Code of Ethics Adopted by Alabama State Bar Association, 118 ALA. REP. xxiii, xxix
(1899) (the Association had adopted the code in 1887). Armstrong, A Century of Legal Ethics,
64 A.B.A. J. 1063 (1978).
11. T. SHAFFER, FAITH AND THE PROFESSIONS, ch. IV (forthcoming 1987).
 Catholic University Law Review [Vol. 36:319

newspaper reader, the parishioner, or the student--can be a source of sound

morals for professional people. It was a later generation in ethics that tried
to apply in the professions Karl Barth's principle of conditional advice: He
who sets out to counsel his brother, Barth said, must be prepared to be coun-
seled in turn if there is need of it.' 2 The legal ethics of rectitude is a one-way
street. It speaks to professional responsibility but it tends to hubris, to re-
gard clients as sources of corruption, as occasions of sin. Hoffman said, in
reference to the client who came to him as debtor on a debt barred by the
statute of limitations, "If my client is conscious he owes the debt, and has no
other defense than the legal bar, he shall never make me a partner in his
knavery."13

II. FREEDOM

The second school of thought in modern legal ethics, the legal ethics of
freedom, is, if nothing else, a corrective to hubris. It does not talk about
responsibility and rectitude. It says that what I should wish for my client is
that he be free. He will, if I serve him well, be informed. He will, to use a
trendy theological word, be empowered. And he will then have, to use a
trendy philosophical word, autonomy. I will have acted to protect his auton-
omy. He will be empowered to act autonomously. Autonomy is com-
pounded from the Greek words for self and law. 4 My client will himself,
make law; he will, alone, be his own ruler.' 5
In terms of intellectual history, this ethic traces to Immanuel Kant and
Enlightenment moral philosophy; it says that a person's moral principles
should be his own, not his lawyer's. One of the most prominent exponents of
this view in modern American legal ethics is Professor Monroe Freedman,
who argued his position in a frequently quoted lecture, given at this law
school, in 1977. He said: "The attorney acts both professionally and mor-
ally in assisting clients to maximize their autonomy," and then explained:
that is, by counseling clients candidly and fully regarding the cli-
ents' legal rights and moral responsibilities as the lawyer perceives
them, and by assisting clients to carry out their lawful deci-
sions. . . . [T]he attorney acts unprofessionally and immorally
[when he deprives] clients of their autonomy, that is, by denying

12. K. BARTH, THE HUMANITY OF GOD 86-87 (T. Wieser & J. Thomas trans. 1960).
13. D. HOFFMAN, supra note 5.
14. WEBSTER'S NEW UNIVERSAL UNABRIDGED DICTIONARY 128 (2d ed. 1979).
15. M. FREEDMAN, LAWYER'S ETHICS IN AN ADVERSARY SYSTEM (1975) [hereinafter
M. FREEDMAN, LAWYER'S ETHICS]; see infra note 16; Shaffer, The Legal Ethics of Radical
Individualism, 65 TEX. L. REV. - (forthcoming 1987) [hereinafter Shaffer, Radical
Individualism].
1987] Legal Ethics

them information regarding their legal rights, by otherwise pre-

empting their moral decisions, or by depriving them of the ability
to carry out their lawful decisions. 6
To deny my clients legal services because I disagree with their moral choices
is-Freedman argues-to "deprive them of the ability to carry out their law-
ful decisions."
Freedman is a magnificently lucid, forceful speaker and writer. He is the
sort of spokesman who makes a difference, and he has come to be a spokes-
man for the American adversary ethic. I need to make a detour on the ad-
versary ethic, not because my three points require it but because of Monroe
Freedman. The adversary ethic is not his ethic, but many people think it is,
and I have to clear up the confusion-in his behalf.
This is the detour: The adversary ethic was invented in New York City
after the Civil War; it had as its purpose the vindication of lawyers who
helped the robber barons bribe judges and sell watered securities. The ethic
says that lawyers have no moral responsibility for what their clients do.
Lawyers who pursue their clients' interests with single-minded devotion are
not accountable in the community for what their clients do. Lawyers are not
responsible for sound morals. Justice will result from single-minded advice
and advocacy, because the judicial system, or the market economy, or Social
Darwinism, are sources of justice: This system, and not, as Hoffman and
Sharswood thought, the conscience of lawyers, is the source of the goodness
that is in the practice of law. 7
On this basis, the adversary ethic justifies legal assistance for rapists, mur-
derers, child-molesters, arms merchants, and people who poison people.
Freedman, in some of his more vivid moments, has extended the traditional
list to perjurers,' 8 people who use lawyers' advice to commit crimes,' 9 and
the perpetrators of stock frauds.2"
The argument made from this quarter is that lawyers are dispensed from
ordinary moral restraints on complicity. Ordinary morals say that if I help
somebody do something evil, I am an accomplice in evil. The dispensation is
necessary if lawyers are to serve the state; and such service to the state is
either self-evidently righteous, or it is righteous because the state is the

16. Freedman, PersonalResponsibility in a ProfessionalSystem, 27 CATH. U.L. REV. 19 1,

204 (1978) [hereinafter Freedman, Personal Responsibility].
17. Schudson, Public, Private,and ProfessionalLives: The Correspondenceof David Dud-
ley Field and Samuel Bowles, 21 AM. J. LEGAL HIST. 191 (1977); see Fortas, Thurman Arnold
and the Theatre of the Law, 79 YALE L.J. 988 (1970); T. SHAFFER, AMERICAN LEGAL ETH-
ICS: TEXT, READINGS, AND DISCUSSION Topics, ch. 3 (1985).
18. M. FREEDMAN, LAWYER'S ETHICS, supra note 15, at 27.
19. Id. at 74.
20. Id. at 20-2 1.
 Catholic University Law Review [Vol. 36:319

source of goodness for its people. Freedman, in his 1977 lecture, found an
example of the adversary ethic in the game of tennis:
Manuel Orantes has astounded fans by applauding his opponent's
good shots and by purposely missing a point when he felt that a
wrong call by a linesman has hurt his opponent. "I like to win," he
said in an interview, "but I don't feel that I have won a match if
the calls were wrong. I think if you're playing ...for your country
it might be different, but if I'm playing for myself I want to know I
have really won."'"
As Freedman describes the adversary ethic, "One's moral responsibility will
...vary depending, among other things, upon whether one has undertaken
special obligations ....
I am still on the detour. There are two answers to the adversary ethic:
Either it is not a serious ethic at all, it is only an excuse for immorality,2" or
it is an ethic that depends on the power-that depends on the state to pro-
vide goodness. It is either a farce or it is idolatry. The state cannot, will not
provide goodness. People of Freedman's and my age, who have seen the
Holocaust, and Dresden, and Hiroshima, and Viet Nam, know at least that
much. Our hope for Manuel Orantes should be that the integrity he exhibits
when he plays tennis will survive the invitation to arrogance that will come
to him when he plays for his country. His country needs his integrity more
than it needs him to win tennis games. His goodness is in his character not
in his citizenship. This is as true of public and professional life as it is of
tennis. 24 Robert Bolt has Sir Thomas More say, "I believe, when statesmen
forsake their private consciences for the sake of their public duties ... they
lead their country by a short route to chaos. "25
Freedman's argument (and here is the end of the detour) is based not on
statism but on the proposition that the highest good of a human person-at
least the highest good that is of social or professional importance-is that he
be free. That he be autonomous. That he live according to moral principles
that are his own, not his lawyer's. 26 That position is attractive against
hubristic moral authority. It was attractive against an arrogant church in
the 18th century, as it is now attractive against any totalitarian moral order,
or even against a domineering parent. It works well as an objection to the

21. Freedman, PersonalResponsibility, supra note 16, at 195-96.

22. Id. at 196.
23. Lasky, Is One Ethic Enough?, 17 VAL. U.L. REV. 41 (1983); Luban, The Adversary
System Excuse, in THE GOOD LAWYER 83 (D. Luban ed. 1983).
24. T. SHAFFER, ON BEING A CHRISTIAN AND A LAWYER, ch. 1-3 (1981).
25. R. BOLT, A MAN FOR ALL SEASONS 23 (1962).
26. M. FREEDMAN, LAWYER'S ETHICS, supra note 15, at ch. I (I have the benefit of using
a draft of chapter 1 in a new edition which Prof. Freedman is now preparing.)
1987] Legal Ethics

traditional republican legal ethic that seems so often to call for us to force or
trick our clients into doing the right thing. The ethic of autonomy is appar-
ently democratic, not arrogant, and thus is in tune with the American polit-
ical tradition. The ethic of autonomy is progressive-a word we Americans
have always liked too much.
In these instrumental and patriotic applications, the ethic of autonomy is
able to hide its anthropology. It is not obvious, although it becomes clear
when you think about it, that this second position on what I should want for
my client depends on a certain view of the human person-the view that the
human person is essentially alone. The vulnerability becomes clear when the
human person is described adequately, as in the Bible and in our stories-
from great novels to television commercials.27
In fact, our stories say, the human person is radically connected to other
people. The real challenge to autonomy as a doctrine is the ordinary fact
that the person comes to be in relationships-in families, congregations,
communities, friendships, and associations. It is the contrast between being
alone and being connected, rather than the contrast between freedom and
rectitude, that seems to me revealing in the legal ethics of autonomy.
Consider the proposition in a nonvicarious setting, as if what I wished for
my client were what I wished for myself. What I wish for myself, this an-
thropology says, is that my moral principles will be my own. (Is this move
from client to lawyer self, as a way of testing the ethics of autonomy, legiti-
mate? I think so; it is the traditional test that Jews and Christians have
followed, since earliest Rabbinic times, for deciding whether what I am do-
ing to another person is moral. It is the way the Torah, 28 and Hillel,2 9 and
Jesus3 ° state the Law of Love. And it is even, in Professor Alan Donagan's
formulation,3 1 a way to state Kant's categorical imperative.)
There are, first of all, formal difficulties. 3 2 For one thing, the proposition
that my principles should be my own is trivial. Whose principles are my
principles likely to be? Who else is responsible for my moral principles?
Even if I read them out of a cook book, when I act on them they are mine,

27. Shaffer, Radical Individualism, supra note 15.

28. Leviticus 19:18.
29. B. SHABBATH, OUR MASTERS TAUGHT 51 (J. Petuchowski trans. & ed. 1982).
30. Matthew 7:12.
31. A. DONAGAN, THE THEORY OF MORALITY 214 (1977).
32. Many of these arguments are paraphrased from Dworkin, Moral Autonomy, in
MORALS, SCIENCE, AND SOCIALITY 156 (H. T. Englehart and D. Callahan eds. 1978), and for
all of them I am indebted to this seminal essay on the ethics of autonomy. Stanley Hauerwas
builds on Dworkin's argument, to say, "the whole force of the modern concept of autonomy
has been to make the individual 'a law unto himself' and thus free from history." S.
HAUERWAS, A COMMUNITY OF CHARACTER, at 269 n.6 (1981).
 Catholic University Law Review [Vol. 36:319

aren't they? Adam said, "She made me do it"; Eve said, "The snake made
me do it"; but those defenses were trivial. 3
The proposition, my principles should be my own, is also paradoxical; If
my principles should be my own, the proponents of autonomy should not
insist that I accept the principle-their principle-that my principles should
be my own. They want me to grant an exception to their proposition, before
we even get started.
Those are formal difficulties. The substantive difficulties are deeper and
more sensible. The ethics of autonomy leave human context out of account;
they posit a here-and-now self that seems unconnected to others or even to
his own past.3 4 The ethics of autonomy do not reflect ordinary sentiment
about what people (Americans) want from one another and celebrate in such
places as the 100th birthday party of the Statue of Liberty; they do not re-
flect what we know from stories about American lawyers.
When you describe our lives carefully, you describe lives of moral influ-
ence. That is characteristic of the great novels, from Austen and Eliot to
Snow and Faulkner and Anne Tyler; it is also characteristic of almost any
thirty-minute situation comedy on television, or of Hill Street Blues.
In terms of social ethics, autonomy is often seen as a guarantor of diversity
in the community-of pluralism, if you like. That is, the argument goes,
autonomy guarantees that we are not all alike; if each of us rules himself, we
will be different from one another, and our strength lies in our difference.
This is a social argument, an argument for the common good; it says the
common good is served by diversity.3 5 In fact, though, we have never
wanted diversity more than we have wanted goodness. We have never pre-
ferred diversity or supposed that diversity is adequate. Pursued logically,
diversity, as a social justification for the ethics of autonomy, would require
us to prefer a community of liars, sluggards, and philanderers-provided
they do not resemble one another.
Our stories, and particularly our American lawyer-hero stories, say that
we prefer, in our communities, people who are brave, generous, reverent,
cheerful, and honest. Our collective moral judgment, such as it still is, is not
as spooked by Sunday-School morality as law professors think. When you
get down to the point of the social argument, finally, what we want in our
lawyers, and from our lawyers, is not the free individual but the wise individ-
ual-what Aristotle called the man of practical wisdom. Think of that in
reference to the American lawyer stories you know-Auchincloss's, Coz-

33. Genesis 3.
34. S. HAUERWAS, supra note 32.
35. Pepper, The Lawyer's Amoral Role, 1986 AM. B. FOUND. RES. J., no. 4 (forthcoming).
1987] Legal Ethics

zens's, Faulkner's, Harper Lee's (To Kill a Mockingbird), Perry Mason,

Lawrence Preston, Mr. Tutt, and Puddin'head Wilson. If diversity produces
wisdom, we want diversity; but, if diversity does not produce wisdom, we
still want wisdom. For all of the talk of diversity in this context, it is at least
ironic that American law schools, from coast to coast, from Washington to
San Francisco, from Miami to Casco Bay, are the most relentlessly uniform,
undiverse, and fungible programs in American higher education.
The meaning of the legal ethics of autonomy is that lawyers should not be
moral influences on their clients. Now, I have to be careful when I say that
of Freedman, given my claim that he is the principal spokesman for this
point of view. I am going to have to say that he argues against the meaning
of his ethic.
Freedman arguesfor moral influence.3 6 He said here in 1977 that lawyers
should counsel their clients "regarding ... moral responsibilities as the law-
yer perceives them," 37 and he gave examples from his own practice. Perhaps
not all who share his views on legal ethics would agree that lawyers should
provide moral influence on their clients, but, clearly, Freedman believes law-
yers should do that. Freedman was critical of Manuel Orantes, for example,
because Orantes appeared to say he would not influence his teammates to be
fair in an international tennis game. "Where Orantes is wrong," Freedman
said, is "in assuming that their decision is that winning is all. Perhaps...
Orantes' teammates would decide that they would prefer . . . the kind of
character and reputation for decency and fairness that Orantes has earned
for himself."38
Where I differ from Freedman is in over what he says next-still talking
about tennis: Perhaps, he says, Orantes's teammates would decide to be un-
fair. If so, "the choice... is theirs," Freedman says,39 and if they decide to
play ruthlessly, Orantes is bound by his commitment to them to play ruth-
lessly himself.
Freedman illustrates both parts of this point-the moral counsel part, and
the client-decision part-with examples from his own practice. In one case,
the client, a landlord, wanted Freedman to evict a war widow; Freedman
said, "If you want to evict her, I will. But why don't you give the matter
some thought." The client decided not to evict her. In the other case, the
other side had made a damaging error in a contract. Freedman said: "We
can clobber them with it," and the client cheered. Then Freedman said:

36. Freedman, Personal Responsibility, supra note 16, at 199-204.

37. Id. at 204.
38. Id. at 200.
39. Id.
 Catholic University Law Review [Vol. 36:319

"The other choice is to call them up and point out the error. That way, you
are the good guy, and maybe we can put our future relationship with them
on a higher plane by setting the example." The client took the latter
choice. 4'
But in both cases, Freedman said he would do what the client wanted if
the client chose to be ruthless. My argument is that this reservation is incon-
sistent with moral leadership. It has led my friend Freedman to take untena-
ble positions when he advises other lawyers-even though his own practice
is obviously one of persuasive moral advice, and his clients are people of
good character, in important part-no doubt-because of his influence.
The problem with republican legal ethics was that it put the integrity on
the lawyer's side: Hoffman looked at his client and said, "He shall never
make me a partner in his knavery." The problem with the legal ethics of
autonomy is that it shifts that load the other way. Freedman looks at his
client and says, I will tell you what I think you should do, but if you decide
to do something else--even something I regard as immoral for you and for
me-I will help you do it; otherwise I will be depriving you of your ability to
carry out your lawful decisions.
This reasoning leads my friend Freedman to the position that a trial law-
yer should help his client commit perjury;4" that an office lawyer should give
his client information that will be used to commit crimes; 42 and that a secur-
ities lawyer should keep his mouth shut about frauds on investors.43
The issue is not moral counsel; Freedman and I agree on that. But the
question I have is: What makes moral counsel coherent? Moral counsel is a
commodity in our oldest ethical traditions, from Moses to the Greeks to 44
Jesus. Moral counsel is what Thomas Aquinas called fraternal correction,
and Karl Barth called conditional advice.45 It is, in these old traditions of
ours, given by a whole, integrated, human person. It is given by a person
who is admired; the good lawyer is such a person; we lawyers say we hope to
be such persons. But that kind of person may need to insist, as Thomas
More put it, on the little, little area where he is himself, where he will have
to decide for himself whether he will follow his friend.4 6
You may remember the scene in A Man for A ll Seasons where the Duke of
40. Letter, Freedman to Shaffer, Aug. 22, 1986 (these are similar to examples in the 1977
lecture); Freedman, Personal Responsibility, supra note 16, at 200-02.
41. Supra note 18 and accompanying text.
42. Id.
43. Supra note 19 and accompanying text.
44. II T. AQUINAS, SUMMA THEOLOGICA II, Q33, 1333-41 (Fathers of the English Do-
minican Province trans. 1947)
45. K. BARTH, supra note 12.
46. R. BOLT, supra note 25, at vii-xvii, 70.
1987] Legal Ethics

Norfolk tries to persuade More to take the Oath of Supremacy. Take it,
Norfolk says, for fellowship. This is a powerful argument to make to
More-a man of strong and Aristotelian friendships. Norfolk's argument
went to the root of the difficulty More was having with King Henry VIII,
the difficulty over the King's marriage. The King needed, for personal and
political reasons, to have More's approval, and all he could get was More's
silence. More's approval-his participation as a lawyer in the King's de-
sign-would not be given unless it meant something; when More acted, his
integrity went with him. More said to Norfolk: "[W]hen we stand before
God, and you are sent to Paradise for doing according to your conscience,
and I am damned for not doing according to mine, will you come with me,
for fellowship?" 47
Conditional advice-moral advice-fraternal correction-is no good un-
less integrity is understood. In fact, it is not even moral advice unless integ-
rity is understood, since moral advice depends on character and on the
perception, in the person seeking the advice, that the advisor is a person of
character. I think Monroe Freedman's clients listen to him because he is a
person of character. I think that's why they change their minds and follow
his advice. That is what influences them-not his saying that he will do for
them whatever they want done.

III. GOODNESS
The problem with the legal ethics of rectitude was that it seemed not to
understand that moral advice is not good unless it is open to influence from
the client; he who counsels his sister must be prepared to be counseled in
turn. My client is, as Justice Wilson said it, the noblest work of God;4 8 that
means he may have some wisdom for me; it also means that he is capable of
being and of becoming a good person, and is therefore worth my giving him
moral advice. This theology of the client argues against the legal ethics of
rectitude, which has so often seemed to think of him as no damned good.
But there is integrity on the other side of this relationship as well-on the
lawyer's side.
Integrity means that the lawyer has moral limits. There are things you
will not ask your friend to do, and if your friend is your lawyer, there are
things you will not ask your lawyer to do. In part-usually, I suppose-that
is because you love her, and you perceive her character, and you want her to
be and to become a good person. But also, I think, it is because you know
that it would be futile to ask her. There are some things-some lawful

47. Id. at 77.

48. Chisholm v. Georgia, 2 U.S. (2 DalI.) 363, 397 (1792).
 Catholic University Law Review [Vol. 36:319

things-she would refuse to do. Part of the value of her moral advice is that
there are things she will refuse to do. This refusal is part of her character.
Her character is what makes her your friend, and you her friend, in the first
place.4 9
"Those who wish for their friends' good for their friends' sake are friends
in the truest sense," Aristotle said, "since their attitude is determined by
what their friends are and not by incidental considerations. Hence their
friendship lasts as long as they are good, and (that means it will last for a
long time, since) goodness or virtue is a thing that lasts ...[E]ach partner is
both good .. .and good for his friend." 5 Because the lawyer is good, her
advice is worth having, and worth giving. Its being worth having and worth
giving is a function of her character.
Moral counsel, then, depends on character, both inherently-otherwise it
would not be moral advice-and in terms of effect. We heed the moral ad-
vice of a good person because the person who gives it is good. This is as true
of social ethics-of political leadership-as it is of professional ethics. It is
as true in tennis as it is in law practice.
What is wrong, then, with Monroe Freedman's interesting notion about
moral counsel is that his theory of client autonomy removes the essential
character of the lawyer. Freedman argues for moral advice, but he also ar-
gues for the lawyer who says, "I will do whatever you want me to do-
regardless." I argue that such a hypothetical lawyer would not be a person
of integrity. And a person who lacks integrity is not a dependable source of
moral advice. I would not trust my life, my fortune, nor, least of all, my
conscience to such a person.

49. Cooper, Friendship and the Good in Aristotle, 86 PHIL. REV. 290 (1977).
50. ARISTOTLE, NICHOMACHEAN ETHICS, BOOK VIII at 219-20 (M. Ostwald trans.
1962).