Ethics and Faith

***WARNING- THIS POST ASKS A LOT OF QUESTIONS AND ANSWERS VERY FEW***

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?

With Great Power (Part 2)

In yesterday's post I talked about the power that lawyers, by virtue of their profession, have and the responsibility to use that power for the good of all. I also talked about how the legal profession tends to be rather unethical, as a result of the way that law school is taught. Today I want to talk about what that means for anyone trying to be a Catholic, and a lawyer.

There are some days when I feel like a Catholic cannot be a lawyer and remain a Catholic. For example, I had a professor tell a class that "There will be times when your personal values conflict with what your client wants you to do. As long as it isn't against the law and doesn't violate your professional obligations, you should do what your client wants. Even if you have a personal ethical dilemma, you need to remember it's not about you; it's about what the client wants. You have a duty to do what the client wants." I've had several Profs tell me that, and spoken with enough practitioners to see that it is going to be an issue throughout my career.

I just don't know how that can be reconciled with my Catholic faith. If I believe that something is wrong, because that's what my faith teaches, how can I help my client do that, even if it is not illegal? As a lawyer, I will have both ethical obligations to serve my client, and the duty to live out my Catholic faith. Obviously my faith has to come first, but what does that mean to my legal career? That is the issue that I seem to be wrestling with.

I think an example is needed, and the best one I can come up with is family law. I know that I am going to be required to do some family law in my first few years, and that will include some divorces. However, I also know that JPII stated that Catholic lawyers should refrain from aiding in divorces. How can I help a couple divorce when I believe, as a matter of faith, that nothing we do on earth can set aside a union blessed and created by God?

And yet, I feel that law is what I am supposed to do with my life. I believe my prof was right when he said we will have a lot of power and can do a lot of good. So, I guess that means I will just have to keep going, and when ethical dilemmas arise, I will have to trust that God will show me a way through the dilemma. But, as I told a classmate in my first year, my faith comes first, and I will not compromise it. Not for anyone or anything.

I realize these two posts have been rather personal and lack a lot of practical value. What I hope the readers can take from this is the importance of knowing your lawyer, and knowing where they stand on ethical issues. There are lawyers who are unethical, and you don't want them representing you. When you choose a lawyer, remember that you are the one hiring the lawyer, not the other way around. Feel free to question them, and give them hypothetical scenarios to figure out where they stand. It's your right to know where they stand, so you can know where you stand. This advice applies to any professional you deal with- accountants, dentists, doctors etc. The other thing you need to remember is to never give people more power than they deserve. Just because someone is a professional, or in a position of authority, is no reason to simply accept what they say. Question everything, and never let anyone brush you off without answering your questions.

“With Great Power Comes Great Responsibility” (Part 1)

Yes, I've stolen the post's title from Spiderman, but hear me out. One of my profs has spent the last two years telling us about the power we will have as lawyers. I've been reflecting on that for the past few days. If he is correct (and he's given us enough anecdotes that I think he is) I will have the opportunity to do great good. I will graduate with 119 other people, and, as lawyers, we have that same opportunity to do great good. My concern is will we (and the grads from the 19 other Canadian Law Schools) use that power for good or evil? For better or for worse, lawyers form the core of the Canadian political system. They are the politicians, and perhaps more importantly they are the policy advisors who draft legislation. They are also the people who become the judges who interpret (and rewrite the law). There is a lot that they, and soon, I can do, if we choose to act in an ethical manner.

However, the sad truth (based on societal perceptions of the legal profession and my own observations) is that the profession doesn't do a lot of good. In fact, I think it could be said we are responsible for a lot of evil in the world. A year or so ago I ran across this article by Patrick J. Schiltz. It's titled "On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy and Unethical Profession" Though it's an American piece, I think it's very relevant for Canadian lawyers as well. He begins the article saying:

Dear Law Student:
I have good news and bad news. The bad news is that the profession
that you are about to enter is one of the most unhappy and unhealthy
on the face of the earth—and, in the view of many, one of the
most unethical. The good news is that you can join this profession and
still be happy, healthy, and ethical. I am writing to tell you how.

It's a long article, but that paragraph essentially sums up the whole thesis of the paper, but for anyone wanting to know what legal life is really like, I suggest reading it. Here are some nuggets:

"And because your life as a lawyer will be filled with the mundane, whether you practice law ethically will depend not upon how you resolve the one or two dramatic ethical dilemmas that you will confront during your entire career, but upon the hundreds of little things that you will do, almost unthinkingly, each and every day."

"The system does not want you to apply the same values in the workplace that you do outside of work (unless you're rapaciously greedy outside of work); it wants you to replace those values with the system's values. The system is obsessed with money, and it wants you to be, too. The system wants you—it needs you—to play the game… It is very difficult for a young lawyer immersed in this culture day after day to maintain the values she had as a law student. Slowly, almost imperceptibly, young lawyers change."

"Unethical lawyers do not start out being unethical; they start out just like you—as perfectly decent young men or women who have every intention of practicing law ethically. They do not become unethical overnight; they become unethical just as you will (if you become unethical)—a little bit at a time. And they do not become un- ethical by shredding incriminating documents or bribing jurors; they become unethical just as you are likely to—by cutting a corner here, by stretching the truth a bit there."

A few years ago, I ran into an interesting opinion on why lawyers become unethical. It's because of the way we are taught in law school. We spend three years learning how to twist the law to our own purpose. The legal system is an adversarial one, and as lawyers we have to be zealous advocates for our clients- that's what they teach us. But that means we spend three years learning how to find loopholes in the law. That's what clients pay us for. If that's what we are taught, is it any wonder that the profession lacks ethics?

This post is ending up longer than I expected, so I'm going to split it into two parts. I've tried to establish that the profession has problems with ethics that stem from the entire law school program, and tomorrow I'm going to write about some of my experiences with these ethical difficulties. Most of my classmates don't see ethical issues, but I think that as a Catholic, I have spent more time thinking about these ethical difficulties and what they will mean for my life, and how I can practice ethically.