PROFESSIONAL DUTIES, CLIENTS' RIGHTS 101
empirical
se cases,
commitment of friendship is usually lacking." Pro-
ne between
m's length,
lip is more
essional
as
ne personal
jewing the
ccording to
close rela
n; they are
fessionals accept clients for a fee, not out of concern
for individuals. Thus, one commentator concludes
that "Fried has described the classical notion, not
of friendship, but of prostitution.”!2 As the factual
assumptions of this model are incorrect and the anal-
ogy supporting it is weak, its ethical implications are
unfounded
The friendship analogy is not needed to justify
a professional paying special attention to a client's
interests. The role of a professional is to provide
services to clients, and the acceptance of a client
is sufficient to justify the special attention. A bar-
ber who accepts a customer pays special attention
to a customer's hair over that of others who need a
haircut more. One need not postulate the barber as
friend to justify this attention. It is presupposed by
any system of services for a fee.
ip.
ion of this
Fried. He
and medi
rofessionals
clients and
PATERNALISM
of paternalism by professionals. As noted before,
a professional possesses a relevant knowledge the
client lacks, so he or she is better able to perceive the
advantages and disadvantages of alternative actions.
Consequently, the professional rather than the client
should have primary authority and responsibility for
decisions.
2. The client is incapable of giving a fully free
and informed consent. By “fully free" is meant with-
out duress, psychological compulsion, or other emo-
tional or psychological disturbance. By "informed”
is meant with appreciation of the consequences of
a course of conduct and its alternatives. If people
cannot give such consent, then their decisions will
not adequately reflect their reasonable desires and
will not be expressions of their "true selves.” This
argument, which in some respects is a subcase of
the previous one, is also popular in the professions,
especially medicine. It is often claimed that people
who are ill have a strong feeling of dependency, are
worried by their illness, and are in a weakened state,
and so lack their usual mental command. A some-
what similar argument can be made about lawyers'
clients. If charged with a criminal offense, a person
is fearful and disturbed. Even in civil suits, a client's
emotions might be aroused, preventing an objective
view of the situation.
3. A person will later come to agree that the
decision was correct. Although the person does not
now consent, he will later. For example, an uncon-
scious accident victim with a broken limb will agree
that a physician was correct to set the bone. Par-
ents often require their children to do things, such
as take music lessons, on the ground that later the
children will be glad they did -"You'll thank me
later!" An engineer might see a way to improve an
agreed-upon rough design to better serve a client's
needs, although it involves a significant alteration
from the rough design. She might make the change
in the belief that the client will agree when he sees
the completed design.
is that they
Friends are
thers' inter-
ht than they
sts that the
S to a one-
wyer helps
er helps the
within the
Once one abandons models that assume the pro-
fessional and client are equal and accepts that the
professional is to some extent in a superior position
to the client, one faces the problem of the proper
extent of professional authority and responsibility
in decision making. Parents have knowledge and
experience that children lack, and it is often ethi-
cally appropriate for them to exercise their judgment
on behalf of their children. Similarly, as a profes-
sional has knowledge and experience a client lacks
and is hired to further the client's interests, per-
haps the relationship should be viewed as one of
paternalism
gested that
Id similarly
ends or pals
friendship
), however
Ognizes, the
efly in one
Three arguments are often offered to justify pater-
nalism.
ern for the
ond, friend
friendships
employers
a position
the above
1. The agent has superior knowledge as to what
is in a person's best interest. Because the agent
knows better than the person what is best, the agent
is justified in acting to avoid significant harm to,
or to procure a significant benefit for, the person.
This argument is perhaps the central one in favor
To decide whether these justifications support
viewing the professional-client relationship as pater-
nalistic, it is useful to consider when reasonable
people would allow others to make decisions for
ates, profes
the affective
102 ETHICS ACROSS THE PROFESSIONS
of
2
involve value choices. 13 They are not simple choices
of technical means to ends, and even choices
means have a value component. Professionals have
not had training in value choices. Even if they had,
they might not know a client's value scheme suffi-
ciently to determine what is best for him when
thing is considered. An attorney might advise a client
that he or she need not agree to such large alimony or
child support payments, but the client might decide
that for personal relations with the former spouse or
the welfare of the children, the larger payments are
them. First, a person might not wish to bother mak-
ing decisions because the differences involved are
trivial. For example, an executive authorizes a sec-
retary to order any needed office supplies, because
the differences between brands of paper clips and
so forth are not important. Second, the decisions
might require knowledge or expertise a person does
not possess. For example, an automobile mechanic
knows whether a car's oil filter needs changing. One
goes to a mechanic for knowledge and service. Third,
a person might allow others to make judgments if
he or she is or will be mentally incompetent. Some
people voluntarily enter mental hospitals.
The first of these reasons does not directly relate
to the arguments for paternalism, but the second and
every.
best. Similarly, a physician can advise bed rest, but
because of business interests a client can decide her
third do relate to the first two arguments for pater-
nalism. Reasonable persons would allow others to
make decisions for them when they lack the capac-
ity to make reasonable judgments. However, most
clients do not have sufficiently impaired judgment to
reasonably allow others to make important decisions
for them. This incapacity argument has little or no
plausibility for the common clients of architects,
engineers, and accountants. Business and corporate
clients of lawyers are unlikely to have significantly
impaired judgment, even if they are biased. More-
over, even with individuals, the view is not plausible
for the common legal and medical cases. A person
who wants to purchase a house or make a will, or
who has the flu or an infection, is rarely so dis-
traught as to be unable to make reasonable decisions.
Consequently, the argument from incapacity does
not support adopting a paternalistic conception of
overall interests are best promoted by continuing to
work on certain matters. The client might especially
need the income or be on the verge of completing
a business deal that will earn a promotion. Physi-
cians sometimes fail to realize that a patient's other
concerns, even a vacation trip with the family, can
precede health. They write and speak of the problem
of patient noncompliance just as parents speak of
noncompliance by children. Yet, one does not have
everything when one has health. Similarly, a client
might want an engineering or architectural design
to use one type of construction rather than another
because its subsidiary supplies such materials.
Although a professional and client are not equals,
sufficient client competence exists to undermine
the paternalistic model as appropriate for their
usual relationship. Clients can exercise judgment
over many aspects of professional services. If they
lack information to make decisions, professionals
can provide it. Sometimes professionals argue that
clients can never have the information they have.
This is true, but not directly to the point. Much of
the professional client relationship for most cases,
although it supports using that conception in special
cases.
the information professionals have is irrelevant to
decisions that significantly affect client values. The
The first argument for paternalism, that from
superior knowledge, fits with reasonable persons
allowing others to make decisions when they lack
knowledge.
Moreover, clients go to professionals for their
superior knowledge and skills: such knowledge and
skill is a defining feature of a profession. However,
many decisions require balancing legal or health
concerns against other client interests. As many
authors have noted, crucial professional decisions
precise name of a disease and its manner of action
are not relevant to deciding between two alternative
drug therapies, but the fact that one drug reduces
alertness is. Similarly, clients of engineers do not
need to know the full weight a structure will bear,
only that it is more than sufficient for all anticipated
stress
. To deny clients authority and responsibility
by adopting the paternalistic model is to deny them
the freedom to direct their own lives. Clients are not
cho
PROFESSIONAL DUTIES, CLIENTS' RIGHTS 103
problem,
ey
e su
even
capable of determining the precise nature of their
action and predicting their consequences or carry-
ing them out on their own. They need and want the
technical expertise of a professional to do so. How-
among options on the basis of their total values. They
need professionals' information in order to make
wise choices to accomplish their purposes.
Finally, when the professional-client relationship
is conducted on the paternalistic model, client out-
comes are not as good as when the client has a more
active role. Douglas E. Rosenthal studied settlement
awards in personal injury cases. The actual awards
decre
use
St, bu
de ho
ingi
14
eciall
letin
Physi-
othe
, Car
oblem
ak ol
have
clien
esign
sacrificed.
or of knowing the alternative courses of
he gives or withholds his consent. The term consents
(the client consents) rather than decides (the client
decides) indicates that it is the professional's role to
propose courses of action. It is not the conception
ever, they are capable of making reasonable choices
of two people contributing equally to the formula-
tion of plans, whether or not dealing at arm's length.
Rather, the professional supplies the ideas and infor-
mation and the client agrees or not. For the process
to work, the client must trust the professional to
accurately analyze the problem, canvass the feasi-
ble alternatives, know as well as one can their likely
consequences, fully convey this information to the
client, perhaps make a recommendation, and work
honestly and loyally for the client to effectuate the
received were compared to an expert panel's judg-
ments of the worth of the claims. The less the client
chosen alternatives. In short, the client must rely on
the professional to use his or her knowledge and abil-
participated in the case by not expressing wants or
ity in the client's interests. Because the client cannot
seeking information from the lawyers, and so on, the check most of the work of the professional or the
more the awards fell short of the panel's estimates
information supplied, the professional has special
of the worth of claims. Not only does the paternalis- obligations to the client to ensure that the trust and
tic model sacrifice client freedom and autonomy, but reliance are justified.
as a result client values and interests are also often This is not to suggest that the professional sim-
ply presents an overall recommendation for a client's
acceptance or rejection. Rather, a client's interests
FIDUCIARY
can be affected by various aspects of a professional's
work, so the client should be consulted at various
As a general characterization of what the profes- times. The extent of appropriate client participation
sional-client relationship should be, one needs a and decision making can be determined by adver-
concept in which the professional's superior knowl- tence to the reasons for allowing others to make
edge is recognized, but the client retains a significant decisions for one. Professionals do not have exper-
authority and responsibility in decision making. The tise in a client's values or in making value choices.
law uses such a conception to characterize most Their superior knowledge and expertise do not qual-
professional client relationships, namely, that of a ify them to make value choices significantly affect-
fiduciary. In a fiduciary relationship, both parties are ing a client's life plans or style. However, they do
responsible and their judgments given consideration. have knowledge of technical matters. A patient will
certainly let a physician determine the dosage of
Because one party is in a more advantageous posi-
medicines. A client can reasonably allow an engi-
tion, he or she has special obligations to the other.
neer to determine the general specifications of mate-
The weaker party depends upon the stronger in ways
rials for a job. A lawyer may decide whether to
in which the other does not and so must trust the
stipulate facts, object to testimony, or agree to a
stronger party.
postponement." Clients allow professionals to make
In the fiduciary model, a client has more author-
these judgments, because the effects on their values
ity and responsibility in decision making than in the
are small and they do not wish to be bothered. In
paternalistic model. A client's consent and judgment
short, client consent and involvement are not neces-
are required and he participates in the decision-
making process, but the client depends on the pro-
(2) the value effect is not significant.
other
uals.
mine
their
ment
they
onals
that
ave
h of
it to
The
tion
tive
nal
ca.
ited
sary when (1) the matter is chiefly a technical one or
lity
ICM
nor
fessional for much of the information upon which
104 ETHICS ACROSS THE PROFESSIONS
isn
Al
an
GO
(7
The appropriate ethical conception of the
professional-client relationship is one that allows
clients as much freedom to determine how their life
is affected as is reasonably warranted on the basis
Wisconsin Law Review: 29–144, p. 36.
of their ability to make decisions. In most dealings
of business and corporate clients with accountants,
architects, engineers, and lawyers, the relationship is
close to a contract between equals. As clients have
less knowledge about the subject matter for which
the professional is engaged, the special obligations
of the professional in the fiduciary model become sonal ethics.
more significant. The professional must assume
more responsibility for formulating plans, present-
ing their advantages and disadvantages, and making
recommendations. Because of the increased reliance
station.” Ibid., p. 131.
on the professional, he or she must take special care
to be worthy of client trust. Thus, although the fidu-
final draft, see appendix 1, sample code 1, EIPL.--ED.
American Bar Association, 30 May 1981), 1.2(b). (For the
3. See William A. Simon, "The Ideology of Advo.
cacy: Procedural Justice in Professional Ethics," 1978
4. Simon's (op. cit.) proposed alternative to the ideol.
ogy of advocacy suffers these defects to some extent. He
does not allow for professional roles. Thus, all professional
obligations are at best specifications of ordinary norms,
"The foundation principle of non-professional advocacy is
that problems of advocacy be treated as a matter of
.... Personal ethics apply to people merely by
virtue of the fact that they are human individuals. The obli.
gations involved may depend on particular circumstances
or personalities, but they do not follow from social role or
5. ABA, Code of Professional Responsibility and
Code of Judicial Conduct (Chicago: ABA, 1979), EC
[Ethical Consideration] 7–8; see also ABA Commission,
per-
N
a
I
ciary model is appropriate throughout the range of
competent clients and services, the less a client's
knowledge and capacity to understand, the greater
the professional's responsibilities to the client.
Finally, some clients are not competent to make
decisions. In this case, the paternalistic model
becomes appropriate. These cases of an incompetent
client will almost always be restricted to members of
the legal and health professions. Even then it does
not follow that the professional should make the
decisions. If a client is incompetent, a legal guardian
should be appointed to make decisions. When this
is done, the professional has a fiduciary relationship
to the guardian. Consequently, the appropriate occa-
sions for professionals to adopt a paternalistic role
are restricted to those in which a client is incompe-
tent and a guardian has not yet been appointed.
Proposed Model Rules, op. cit., 2.1 and comment.
6. Roger M. Grace, "Invading the Privacy of the
Attorney-Client Relationship.” Case and Comment 81
(July-August 1976): 46–49, p. 47.
7. ABA, Code of Professional Responsibility, DR
[Disciplinary Rule] 4–101(C)(3); ABA Commission, Pro-
posed Model Rules 1.6(b).
8. Veatch, op. cit., p. 7.
9. See, for example, Roger D. Masters, “Is Contract
an Adequate Basis for Medical Ethics?" Hastings Cen-
ter Report 5:6 (December 1975): 24–28, p. 5; William F.
May, “Code, Covenant, Contract, or Philanthropy?" Hast-
ings Center Report 5:6 (December 1975): 29–38, p. 35
(see chap. 4, sel. 11, EIPL-ED.); H. Tristram Engle-
hardt, Jr. "Rights and Responsibilities of Patients and
Physicians," in Medical Treatment of the Dying: Moral
Issues, ed. Michael D. Bayles and Dallas M. High (Cam-
bridge, MA: G. K. Hall and Schenkman, 1978), pp. 16–17;
Richard Wasserstrom, "Lawyers as Professionals: Some
Moral Issues," in 1977 Conference on Teaching Moral
Responsibility: Pre-Conference Materials, ed. Stuart C.
Goldberg (Detroit: University of Detroit Law School,
1977), pp. 122–22 [rpt. chap. 4, sel. 6, EIPL-ED.).
..
NOTES
10. Charles Fried, "The Lawyer as Friend: The Moral
Foundations of the Lawyer-Client Relation," in Goldberg
1. See Robert M. Veatch, "Models for Ethical
Medicine in a Revolutionary Age." Hastings, Center
Report 2:3 (June 1972): 5-7, p. 5. Veatch calls this the
engineering model of the physician, but this assumes it is
appropriate for engineers. (See chap. 4, sel. 10, EIPL.-
ED.)
2. See American Bar Association (ABA) Commis-
sion on Evaluation of Professional Standards, Model Rules
of Professional Conduct: Proposed Final Draft (Chicago:
also Veatch, op. cit., p. 7.
op. cit., pp. 129-58; and Fried, Right and Wrong (Cam-
bridge, MA: Harvard University Press, 1978) chap. 7; see
11. Edward A. Dauer and Arthur Allen Leff, "The
Lawyer as Friend," in Goldberg, op. cit., p. 164.
12. Simon, op. cit., p. 108.
ism
Allen E. Buchanan,
ilosophy
Goldman, The Moral Foundations of Professional Ethics
and Public Affairs 7:4 (1978): 370-90, p. 381; and Alan H.
(Totowa, NJ: Rowman and Littlefield, 1980), pp. 179-86.
074),
cháp. 2.
15. See ABA, Code of Professional Responsibility, op.
cit., EC7-7; but see ABA Commission, Proposed Model
Rules, op. cit., 1.2(a), 1.4.
Il professi
ple merely
tals. The a
circumsan
social role
Joel J. Kupperman
Autonomy and the Very Limited
Role of Advocacy in the
Classroom
onsibility
, 1979),
ment.
Commissie
Joel J. Kupperman writes widely on ethics and
philosophy.
rivacy of
Comments
onsibility,
mission,
"Is Contrai
Hastings Com
5; William
hropy?" Han
29–38, p. 3
istram Engle
Patients 2016
opinion (however unconsidered) is as good as any
other.
Plainly this reflects a style of teaching, at least
at Harvard (where Perry's study was conducted), in
which attention is given to competing points of view
on the same issue, and students tend to be discour-
aged from thinking that there is a single definitively
and clearly right answer to key questions. Some of
Perry's subjects were led to ask whether, in the end,
some of the competing claims had more to be said for
them than their rivals do. This can lead the student
to attempt to develop a considered personal point
of view. This seems to me very important, not only
as part of the student's development but also as a
contribution to the actively committed (rather than
passive) and reflective citizenry that our political
culture requires.
There are many pitfalls here. The ideal is a sophis-
ticated balance: a student who has arrived at a per-
sonal point of view but is able to appreciate opposing
positions and also can entertain objections to her
or his view. Less desirable is the opinionated stu-
dent who has not been thoughtful enough about her
or his position and does not fully hear anything
that represents a different outlook. This is always a
risk, but is especially one of teaching that heavily
My thesis is that advocacy in the classroom is rarely
appropriate with regard to live (i.e., contentious)
moral, political, or social issues, and for that matter
not always appropriate with regard to issues within a
discipline. By advocacy I mean a teacher's present-
ing a view as her or his own in a way that might well
elicit students' agreement....
The classic study of undergraduate intellectual
and ethical development is William G. Perry, Jr.'s
(1970) Forms of Intellectual and Ethical Develop-
ment in the College Years. Perry's subjects arrived
in college looking for right answers, which they then
could give back on tests to their instructors. In many
cases they were frustrated by instructors' refusal
to give them right answers and by their insistence
instead on exposing students to a variety of per-
spectives on controversial issues. Overcoming their
disappointment, students passed through a phase of
relativism, in which conflicting perspectives were
thought to be equally valid. At a yet higher level lay
the realization that it can both be true with regard to
a particular issue that there is no answer on which all
reasonable people must agree and also false that any
Dying: Moni
1. High (Can
78), pp. 16-11
sionals: Som
aching Moni
ed. Stuart (
Law School
-ED.)
nd: The Mon
” in Goldberg
Wrong (Car
8) chap 7;
en Leff
, "T
164.
From The Monist 79, 488-98 October 1996.
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