DIFFICULT MORAL QUESTIONS

Question 183: May a lawyer seek a court order believing it would be unjust?

A client, whom I’ll call Jane, is plaintiff in a divorce action. She petitioned for custody of the children, child support according to the state guidelines, exclusive use of the family dwelling and its contents, and that her husband, Sam, be required to continue paying the mortgage payments. At the preliminary hearing, Sam disputed custody but we prevailed, and the court also ordered him to make all payments as we asked. At the time, he was well able to do that. However, a month later—almost six months ago now—his job was eliminated in a reorganization and he was forced to accept a demotion, which cut his salary by almost half and his take-home pay by more than a third. He then asked for a reduction in child support in accord with the guidelines; since the court would have granted it, I advised Jane to agree, and she did. While Sam has continued paying the child support, he now has fallen behind on the mortgage payments.

On my client’s instructions, I discussed the situation with her husband’s lawyer, and it became clear that Sam is not earning enough to subsist and also make the mortgage payments as well as pay child support. Lacking collateral and having missed payments on various accounts, he cannot borrow from a commercial lender. We therefore worked out an arrangement, to which Jane tentatively agreed—she would lend Sam half the mortgage payments, and he would repay the loan with interest from his share of the equity when the property is sold.

A few days ago, however, the judge who is handling the case sent a husband in a similar situation to jail for contempt. The local paper did a feature story on the case and also editorially criticized the judge for “reinstituting debtors’ prison.” Jane now wants me to ask the court to cite Sam for contempt. If he is threatened with jail, she believes his parents, though not prosperous, will draw on retirement savings to make the mortgage payments and keep him out of jail.

I am not sure that her expectations are realistic. But, knowing the judge, I expect that, if I carry out her instructions, he will accommodate her. In the circumstances, though, I do not think it would be just for the court to cite Sam for contempt. I could attempt to withdraw from representing this client, but since she wishes to proceed at once, she may not agree, and the judge might order me to continue representing her. If I do succeed in withdrawing, she probably will find someone else to represent her, and the outcome will be exactly the same. What do you think I should do?

Analysis:

This question calls for the derivation of norms. The questioner believes the contempt citation would be unjust. Though a lawyer should presume every client’s cause just and should leave uncertainties about what is just to the court’s judgment, the questioner may not intend that the court do something he or she is convinced it cannot justly do. The questioner should try to persuade the client to follow through on her tentative agreement and, if she will not, should try to withdraw from representing her. If ordered by the judge to continue representing this client, the questioner may not zealously represent her in the sense of intending to achieve her unjust objective, but may do those and only those things necessary to comply with the order.

The reply could be along the following lines:

In what follows I take for granted that the situation is just as you describe it. Sam simply cannot make all the payments he had been ordered to make. Jane regarded the resolution to which she tentatively agreed as fair. She now believes the judge will threaten to send Sam to jail for contempt. By seeking the contempt citation, she intends to pressure Sam’s parents to make payments, by drawing on retirement savings, that the court could not order them to make.

For two reasons, I agree with your judgment that in these circumstances issuing the contempt citation would be unjust. First, the legitimate purpose of citing someone for civil contempt is to compel him or her to do what he or she has been ordered to do and could do but has refused to do. Thus, civil contempt always presupposes that the contumacious person has refused to do what he or she could do. But Sam simply cannot make all the payments he was ordered to make. He has a cogent defense for not making them, and any reasonable judge, rather than putting him in jail, would amend the prior order or require only that Sam do what he can to comply with it. This judge, however, may refuse to consider Sam’s defense and arbitrarily order him jailed for failing to do the impossible. But since that order would be an abuse of judicial power, seeking it would be unfair. Second, Sam’s parents presumably are not responsible for his failure to make the ordered payments. Moreover, not being prosperous, they have no duty to help their son and his wife, who, apparently, can make do without their help. So, if his parents make the payments as Jane anticipates, they will go beyond their duty solely in order to keep their son out of jail. Jane therefore intends the threat of jail to compel Sam’s parents to do what they have no duty to do. That is tantamount to extortion and plainly is unfair. Therefore, seeking to obtain what Jane wants would be unjust. It also would be an abuse of legal process.

Someone might argue that seeking the contempt citation need not be unjust.

Perhaps the judge has learned by experience that many defendants in such situations conceal assets or sources of income until pressed by the threat of jail. However, jailing someone for failing to do the impossible surely is unjust; and so therefore is jailing a particular person in these circumstances, without evidence that this person is cheating and simply on the basis of the generalization that many people in such situations try to cheat. In threatening Sam with jail and intending to carry out the threat despite evidence about his inability to make the payments, the judge’s intention would be to jail him even if that is unjust. And, in fact, on your statement of the case, Sam has no concealed assets or sources of income.

Of course, the judge might not accommodate your client. He might only threaten to put Sam in jail without intending to carry out that threat. But the threat then would be a lie, and a lie in a matter of this kind and importance surely would be gravely unjust. Furthermore, asking the judge to do something unjust would itself be unjust, even if you are not certain he will do it, since the intention in asking would be to effect the injustice, and the fact that an attempt to do something morally wrong may not succeed does not eliminate or even mitigate its wrongfulness.

Sam’s parents may help him appeal the judge’s decision, and, if appealed, it probably will be reversed. But it already is a serious injury to be subjected to an unjust order and compelled either to comply or appeal. Moreover, an appeal might not seem feasible to Sam without his parents’ help, and the burden on them of helping would itself be unjust.

Someone might argue that you should accept and serve clients without using your personal moral standards to evaluate their objectives. On this view, you should leave the question of the justice of your clients’ causes to their judgment and the court’s. Certainly, in acting as an advocate you should presume your clients’ desires to be just unless the facts and their own statements show the contrary, and you should not anticipate the court’s judgment about any doubts you might have concerning the justice of your client’s cause. But you are responsible for your own actions. You may not ignore evidence that tends to rebut the presumption in your clients’ favor, and you may not intend that the court do something you are convinced it cannot justly do. Under certain conditions, as will be explained, you might continue acting for a client who is pursuing what you believe to be an unjust objective, without yourself intending to achieve it. Still, to represent a client who is seeking what you believe to be an unjust objective with the intention to achieve it would mean willing the injustice and thereby making yourself an unjust person. That would remain true, indeed, even if you were mistaken about the injustice of the client’s objective.

What, then, should you do?

If you have not already done so, first try to persuade Jane to follow through on her tentative agreement to the arrangement previously worked out. Give the reasons why you think seeking the contempt citation would be unjust and explain why doing so might not be in her own best interests. If the judge threatens Sam with jail but, contrary to her expectations, his parents refuse to make the payments, at best she probably will gain nothing. If the judge does not carry out the threat, she probably will receive no more than Sam is now able to pay. If he is jailed, he will be entirely without income and unable to pay even what he has been paying. If he appeals and wins, resources will have been wasted in the litigation.

What if your best effort to reason with your client fails? Then, in my judgment, you should tell her that you cannot in good conscience seek the contempt citation and wish to withdraw from representing her. You say that, even if you succeed in withdrawing, she probably will find someone else to represent her, and the outcome will be exactly the same. Perhaps so. But unlike a case in which what a client wants is merely imprudent—for example, an action justly seeking an objective that the client almost certainly will not win—in this case the client’s objective is unjust. You may continue to represent imprudent clients, who insist on pursuing objectives unreasonably, with an eye to mitigating the harm they will suffer and bring about (see q. 176. above). But no good end can justify intending injustice, and so you may not choose to continue representing a client whose objective you regard as unjust.

Moreover, you cannot be certain it will make no difference to the outcome if you withdraw. It will underscore all you have said in trying to reason with Jane, and so might lead her to reflect and change her mind. Also, she may not actually get someone else to represent her. However, even if she does and the outcome for her, Sam, and his parents is exactly the same as it would have been had you continued representing her, the outcome will be different for you. By refusing to cooperate with her unjust plan, you not only will avoid accepting any responsibility for the injustice she wishes to bring about but will bear clear witness to truth and justice.

Someone might point out that professional ethics does not require you to withdraw from the representation of a client merely because the client insists on a course of action you believe to be unjust.⁴⁰⁴ In this matter, as in many others, however, moral responsibility requires more of a lawyer than the rules of professional ethics do. The latter no doubt are based on the assumption that every party to a case is entitled to zealous legal representation and that legal processes can be counted on to produce just outcomes. Since you should not share Jane’s intention to obtain an unjust order, however, you cannot willingly serve her in this matter. But professional ethics does permit you to attempt to withdraw, inasmuch as you consider your client’s objective repugnant.⁴⁰⁵

What if Jane does not consent to your withdrawal, the judge orders you to continue representing her, and you face severe consequences, perhaps even disbarment, if you refuse?⁴⁰⁶ In that case, it seems to me, to avoid the consequences of refusing, you could do several things not wrong in themselves: draft and file the necessary papers, appear in court and present relevant evidence, and even say what you must in court. But you could not intend Jane’s objective.

Someone might object that, if you continue representing Jane, you must do so “zealously within the bounds of the law”⁴⁰⁷ and so will not be able to avoid intending her objective. Certainly, in zealously representing clients, you intend to achieve their objectives. However, if you continue acting for Jane under the duress of a court order, you should not zealously represent her. You should do no more than you believe necessary to avoid the consequences of defying the judge. Your situation, it seems to me, would be analogous to that of a person being raped. Threatened with gun or knife, one can do various things necessary to bring about the rapist’s objective—such as undressing and assuming a suitable posture—without choosing to engage in any sexual act, since all the behavior is directed to a different immediate purpose, namely, the avoidance of grievous injury to oneself.

Still, reluctant cooperation under duress with a morally unacceptable project can be morally wrong. Compliance can be an occasion of sin for the cooperator or others; it can prevent the cooperator from bearing appropriate witness; and it can be unfair to others injured by the wrong. But with appropriate precautions you could resist temptation and avoid sin, and your example in this case probably would not lead others to sin, as it might if, for example, you were complying with the orders of a despotic regime rather than of one bad judge. Your compliance would prevent you from bearing witness in this instance to truth and justice. But, considering what you have at stake and the rarity of this instance, I doubt that you have a strict duty to make the sacrifice required to bear witness. Of course, if you act under the judge’s order for Jane and her unjust effort succeeds, you will be making some contribution to the injustice Sam and his parents will suffer. However, your contribution will be limited: by the duress, the greater contribution of others to the injustice, and the likelihood that someone else would have represented Jane had you defied the court. Moreover, you could fairly accept contributing to the injustice toward Sam and his parents provided you fairly compensated them—which, in my judgment, would not require making good their whole loss but some part proportionate to your comparatively small contribution to it.

Someone might reject the preceding solution and maintain that, even with the judge’s order, you could not continue acting for Jane without intending her objective. Your situation, they might say, is not like that of someone being raped but of someone threatened with the loss of a well-paying job unless sexual favors are granted to the employer. A person who yields to such pressure does engage in sexual acts, however reluctantly, as means to an end, just as an ordinary prostitute does. I do not concede that your compliance under duress would be like prostitution; you could do what you must to avoid defying the court without sharing in Jane’s action by intending her objective. Still, I agree that, if your compliance were like prostitution, you would be obliged to refuse to comply with the court’s order. In refusing, of course, you would do what you rightly could to forestall or defend yourself against penalties. But you could not rightly will what you believe to be an injustice in order to evade the consequences, even if being disbarred were sure to be among them.

404. See American Bar Association, Model Rules of Professional Conduct (1993), Rule 1.16 (a).

405. See ibid., (b) (3).

406. It is unlikely—and in some jurisdictions unthinkable—that a judge would order a lawyer to continue representing a client despite the lawyer’s sincere belief that doing so would contribute to an abuse of legal process. But the possibility cannot be ignored here because the judge perhaps has the authority to prevent the lawyer’s withdrawal and, in any case, this judge does not seem to be inhibited by the limits of his or her authority.

407. See American Bar Association, Model Code of Professional Responsibility, (1986), canon 7.