05 August 2009

Ethics and Faith


I knew that the practice of law would at times put my duty as a lawyer and my duty as a Catholic at odds. I ran into one of those situations today.

I had a client come in to get some estate planning done- Will, Power of Attorney and a Personal Directive. After speaking with the client, I have no concern about capacity. The client is clearly able to make the decisions necessary for estate planning. However, this client also has some severe disabilities- none that are mentally impairing, just some severe physical disabilities. The disabilities are part of the reason the client wants to get the estate planning done. (I should make clear- this is the first estate planning I've worked on, and I was sitting in with my principal observing- not actually doing the questioning)

So far, so good- I have no issues with any of that.

What does bother me is my firm's personal directive. The wording of it specifically. The directive says essentially that no extraordinary methods should be used to save the client and if the client is in an irreversible coma or persistent vegetative state, their lives should not be prolonged.

My problem with this wording is that a) it is too open to interpretation- in this world, extraordinary means can mean food and water and irreversible comas and persistent vegetative states are not something that medical professionals agree on and b) I think such wording violates the culture of life ethic.

My other problem is that this wording is presented by the lawyers in my firm as being "normal" and "what everyone uses." When interviewing clients, my principal asks "do you want the plug to be pulled or not?" If the client says pull it (which all that I've seen so far do) my principal says that this is the wording you should use. To me, this is not doing the job we as lawyers should be doing for our clients. Everyone is not an expert in end of life issues (I'm certainly not, but I like to think I'm more aware than a lot of other people) and I'm sure this isn't something my principal has thought much about, but I don't think this explanation or the wording is good for our clients. I don't think they understand the ramifications of what they are signing and I don't know that it is consistent with their actual wishes.

When people are choosing the terms for their wills, we are very careful to make sure we ask lots of questions so we get their intentions captured properly in the will. To me this one size fits all personal directive is us as lawyers failing to take proper instructions from our client.

Don't get me wrong- I know there are a lot of people out there who may want the plug pulled. I just want to make sure that they know what they are saying when they say that. I want to give them options; I don't want them to be forced into the cookie-cutter precedent some lawyer got at a Law Society conference, and I feel that is what is happening here.

Back to my client today- I don't know that the client truly understood what the client was signing. (For that matter, I don't know that my principal knows the ramifications either) And I am concerned, especially because of the client's disability, that the medical profession will not stop to seriously consider the client's wishes if the time comes.

As a Catholic, it hurt me to watch someone sign a document that condemns them to the culture of death. Yet, as a lawyer it’s my job to make sure the client’s wishes are followed. I guess my real concern is- when the day comes (and it is coming soon) that I take instructions and draft the personal directive myself, what do I do if the client wants to make a decision that I disagree with? As a lawyer, I know that I have to abide by the client's wishes, but as a Catholic, can I do that? Am I not then complicit in an act that violates my faith? And if I do so with full knowledge, does that not make it a mortal sin? And if I know that I will do it again if another client wants it, does that mean I can't repent of the sin at confession? Where does that leave my soul?

My clients may not know any better- they after all live in a society consumed by the culture of death. God is merciful, and I know He will have mercy on them. But what about me? I do know better. After all, "to those to whom much is given, much will be expected."

I'm only 1 month into a career that should last over 40 years. How do I protect my client’s dignity, and how do I promote the culture of life when my profession has such a large role in the culture of death?

My intention is to create some other precedents in time that are more life affirming, but what do I do with people who are adamant that they want the plug pulled or to be deprived of nutrition and hydration?

1 comment:

Stephen said...

It's late over here (Australia), and it's been a long day, but here's my 2 cents as a Catholic and a lawyer:

In short, I think you're probably OK. As I read the directive I think it's more-or-less consistent with the Catechism of the Catholic Church. That being so, you're drafting an instrument as coherent with conscience as you are able to. Certainly it may be misused, but the responsibility for that lies with the medical practitioner or other person who acts upon and (fails to) honour it.

In the case where a person wishes to draft an instrument which requires you to do something wholly against the Church's teaching, I think you still have to consider your primary duty as a lawyer which is to act honestly and in the best interests of your client. If their instructions are so far removed from what you can ethically do, are you able to discharge your duty to them? And in that case, perhaps your suty then is to decline instructions.

Obviously that's easier said than done, though, where you have a boss to whom you have to account for how you're servicing clients - dunno how far your employer is likely to indulge you there.

Anyway, hope this helps.