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1.What is the paternalistic model, and why might a person argue that professionals should relate to their clients as paternalists to subjects? Why does Bayles reject this model?

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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. 1311
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Paternalistic Model

The paternalistic model refers to the practice whereby an organization or individual is limited
to decision making. One’s decisions are made by someone who is believed to have superior
knowledge of the problem. According to the model, the professional is higher in decision
making than the client. The model is based on the assumptions tha...


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