Virtue and Advice

Abstract

This Article examines the ethical and moral responsibilities of lawyers in their role as advisors to clients, with continual reference to the Greek philosopher Socrates.* Although Socrates was not a lawyer, he was an “advisor,” who lived a life committed to engaging in dialogue about virtue and its meaning and, at times, about the law and one’s duties in relation to the law. According to Rule 2.1 of the ABA Model Rules of Professional Conduct, when representing clients and acting as advisors, lawyers are expected to “exercise independent professional judgment” and “render candid advice,” which includes authority to counsel clients on moral considerations relevant to their legal situation. Socrates was a paradigm of “independence” and, although his speech was often bristling with irony, he was also persistently “candid” with his dialogue partners as they pursued the truth about moral questions. His life and teachings, and his courage in adhering to the principles that defined him, offer valuable insights for lawyers as they form their professional identities and serve as advisors to their clients. Part I of this Article will offer an overview and perspective on lawyers as independent advisors, first by closely examining Rule 2.1 and its meaning. It will then further explore moral independence in a legal context by reflecting on Socrates, with particular attention to his trial and its aftermath, but also considering Socrates as portrayed in the philosophy of Søren Kierkegaard. Part II will review several frameworks legal ethicists have developed to describe the relationship of advising lawyers and their clients, and propose the moral ideal of the “trustworthy neighbor” for lawyers serving clients in the advising role. Finally, Part III will consider some lessons derived from the teachings of Socrates for lawyer-advisors who are engaged in moral dialogue with their clients.