Role Morality describes the fact that people sometimes apply different ethical standards, depending on what role they see themselves playing. [See our videos: Role Morality (Ethics Defined) and Role Morality (Concepts Unwrapped)]

We all play different roles as we go through life. We are spouses, parents, siblings, neighbors, employees, citizens, and so forth. We have a personal moral compass, but we may abandon it if we focus on a different role we are playing and use it as an excuse not to apply our typical moral standard. Examples:

  • An officer in a big corporation said: “What is right in the corporation is not what is right in a man’s home or in his church. What is right in the corporation is what the guy above you wants from you.” In the role of obedient employee, this man was willing to ignore his personal moral compass and do whatever it took to please his superiors.
  • A physician examining a plaintiff in a personal injury case on behalf of the defendant’s insurance company discovered a life-threatening brain aneurysm but did not inform the plaintiff. In the role of the defendant’s expert witness, this doctor was willing to ignore the Hippocratic Oath he had taken in order to bolster the insurance company’s defense.
  • An engineer whose superiors ordered him to sign fraudulent safety tests regarding fighter plane brakes did so, focusing on his role as loving father. He signed the false documents that endangered pilots’ lives after lamenting: “I’ve always believed that ethics and integrity were every bit as important as theorems and formulas, and never once has anything changed my beliefs. Now this… Hell, I’ve got two sons I’ve got to put through school.”
  • Attorney John Yoo co-wrote the infamous Bush administration “torture memo,” arguing that waterboarding and the like were just fine, legally-speaking. Attorney Jack Goldsmith, also a conservative Republican in the Bush administration, opposed torture. It has been suggested that these two attorneys with similar backgrounds reached different conclusions because Goldsmith’s role in the administration was primarily a legal role while Yoo’s role was primarily a policy role.

The notion of role morality plays a role (no pun intended) in Cornell Law School ethics professor W. Bradley Wendel’s interesting new book: Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret. Wendel focuses on how we should think about lawyers who represent unpopular clients and how those lawyers should think about themselves.

Lawyers often represent unpopular clients—murderers, rapists, corporations destroying the environment, and the like. In so doing, they may find themselves in very uncomfortable positions.

  • Dale Coventry and Jamie Kunz represented murderer Andrew Wilson who admitted to them that he had murdered a corrections officer for whose murder Alton Logan had been convicted and was serving a life sentence in prison. Because of attorney-client privilege, they did not take any steps to help Logan until Wilson died 26 years later.
  • Frank Armani and Frank Belge were hired to represent a client accused of murdering a hiker. Following a map drawn by the defendant, they went into the woods and viewed the bodies of two other hikers who had been missing. Their client was not suspected in their disappearances and, because of attorney-client privilege, they did not disclose the existence or whereabouts of the bodies, no doubt causing pain to those victims’ families.
  • Criminal defense attorney Abbe Smith found herself cross-examining a 12-year-old rape victim, attempting to undermine the credibility of her testimony even though her client had admitted to Smith that he was guilty.
  • The prestigious Cravath Swaine & Moore firm provided strategic advice to long-standing client Credit Suisse related to the bank’s role in laundering gold the Nazis stole during World War II over the objections of some vocal Cravath associates who doubted that concern for justice for the victims of the Holocaust could be reconciled with a defense of Credit Suisse.

Lawyers are frequently heavily criticized for representing unpopular clients, often by lay observers who do not understand an attorney’s role in the justice system and ignorantly assume that a lawyer who represents a client with odious views must share those views, which is obviously not the case. (This criticism can sometimes lead to lawyers being “canceled” as that term is used in modern parlance—hence the title of Wendel’s book.)

Lawyers often respond to such ill-founded criticism, and even to more reasonable criticism by citing the Principle of Nonaccountability, and arguing, essentially: “I’m a lawyer. This is what lawyers do. You have no right to criticize me. Shut up.”

Wendel believes that lawyers owe more of an explanation. Few lawyers end up representing clients against their will. Professional rules of conduct are great, but that does not mean that simple human morality should be completely ignored. Lawyers should and must be ready to defend their actions at a more sophisticated level.

This last point is addressed throughout Wendel’s book, but particularly in the chapter that prompts this blog post—Chapter 6 “Philosophical Perspective: The Challenge of Role Morality.”

The examples of role morality we bullet-pointed above are situations where people ignored their personal moral compass and used a different role they played (obedient employee, expert witness, loving father, policy wonk) to justify doing wrong. However, because of the important role that lawyers play in settling disputes and maintaining order and justice in our society, when lawyers follow proper professional rules (as Coventry, Kunz, Armani, Belge, Smith and Cravath did), their actions representing even the worst of the worst are generally well-justified morally.

Wendel notes:

When in response to criticism lawyers talk about values like the dignity of their clients, the importance of the government treating all citizens fairly, or the contribution made by the adversary system to safeguarding individual liberty, these are all appeals to what might be called ‘role-differentiated’ morality. The idea is that lawyers’ actions are regulated and justified by ends and values that are specific to their professional roles.

At the end of the day, Wendel strongly supports lawyers who represent unpopular clients. But he wants them to not only be able to explain how their doing so advances societal interests like order, equality and justice, he also wants them (a) to do so with good motives (to provide representation when no one else will, rather than to cash a big paycheck), (b) to feel qualms and regret when their necessary professional actions injure others (such as wrongly convicted inmates or parents with missing children), (c) to understand and perhaps even accept the blame that those injured others hurl their way (Abbe Smith says: “Victims of serious crime get to hate us [defense counsel]. It is the least we can do for them.”), and (d) in so doing to avoid breaching professional standards.

When lawyers use their professional role as an excuse to violate the law or the American Bar Association’s ethics standards—one of Wendel’s examples is the filing of frivolous lawsuits to advance former President Trump’s big lie—then they are using role morality to excuse wrongdoing that hopefully they would not countenance if acting as a parent or a child or a friend. And that’s the danger or role morality.

 

Sources:

Tim Dare, “Roles All the Way Down,” in Perspectives in Role Ethics: Virtues, Reasons, and Obligation (Tim Dare & Christine Swanton, eds. 2020).

Robert Hoyk & Paul Hersey, The Ethical Executive: Becoming Aware of the Root Causes of Unethical Behavior: 45 Psychological Traps that Every One of Us Falls Prey (2008).

Robert Jackall, Moral Mazes (1988).

Alton Logan with Berl Falbaum, Justice Failed: How ‘Legal Ethics’ Kept Me in Prison for 26 Years (2017).

David Luban, “Freedom and Constraint in Legal Ethics: Some Mid-Course Corrections to Lawyers and Justice,” Maryland Law Review 424-462 (1990).

Cassandra Burke Robertson, “Judgment, Identity, and Independence,” Connecticut Law Review 42: 1-48 (2009).

Spaulding v. Zimmerman, 116 N.W.2d 704 (Minn. 1962).

W. Bradley Wendel, Canceling Lawyers: Case Studies of Accountability, Toleration, and Regret (2024).

 

 

Videos:

Role Morality (Ethics Defined)

Role Morality (Concepts Unwrapped)