Recent polls find lawyers less satisfied than retail clerks,
bank tellers and many others.1 Those of us in the practice do not need polls to tell us that too many lawyers
find their work unsatisfying. Colleagues complain about billable hours,
difficult clients, lack of collegiality, and a day-to-day
grind similar to Sisyphus pushing the boulder uphill, just to see it roll
down again. The work can be disappointing and tedious.
It is time for lawyers
to change their perspective by acknowledging the virtues exhibited in their every
day professional lives. Rarely do the words
"virtuous" and "lawyer" appear in the same sentence.
Indeed, few lawyers, and even fewer non-lawyers, consider what lawyers do to be
"virtuous". And yet, every day in our professional lives, whether we
realize it or not, lawyers incorporate many virtues into their practice-courage,
prudence, wisdom, etc.
Welcome, to The Virtuous Lawyer. The first series of
blogs will discuss how Aristotle's 12 moral virtues are exhibited in a lawyer’s
daily practice. Recognizing these
virtues has the power to make the practice of law more satisfying, and even make
us happier. We will post other fun, virtuous, ‘lawyerly’ tales, studies and
general professionalism hullabaloo. But we begin with Aristotle’s reflections on
the virtues in everyday life.
“Happiness is the virtuous activity of a soul…”-Aristotle
The word "virtue" comes from the Roman
word, “virtus,” which is derived from the Greek word, “arête,” meaning “excellence.”
Aristotle reasoned that a virtue is an acquired disposition to do that which is
good. Therefore, one who aspires to be virtuous is worthy of humanity, both
individually and collectively.
In Plato's dialogue, the Meno, Socrates is asked: "Can you
tell me, Socrates, whether virtue is acquired by teaching or by practice; or if
by neither teaching, nor practice, then whether it comes to men by nature, or
in some other way?" During the course of the dialogue Socrates and Meno
discuss ‘virtue’, its relationship to knowledge, the various types of virtues,
and their relationship to one another. Aristotle, a student of Plato’s, follows a similar
path when discussing the virtues.
For Aristotle and the ancient
Greeks a ‘virtue’ was the force, the power, or the excellence of something. The
excellence of medicine is its healing power, but if used improperly medicines
can also do harm. For Aristotle, man's virtue or excellence, is his ability to
be rational. Man, unlike other animals, uses his knowledge to make choices and decisions
that can lead to a good life and a beneficent society. Or as Aristotle said
"the virtue of a man will be the state of his character that makes a man
good, and makes him do his work well."
We do not take courses on how to be
virtuous, yet most of us can recognize virtuous behavior. Paraphrasing Justice
Stewart's remark on ‘obscenity’, "we know it when we see it."2 Undoubtedly, in our daily professional practices we rarely stop to 'see'
whether our activities are virtuous.
These blogs will provide a narrative to correct this unconscious error
by stepping back and observing that even the seemingly mundane activities we
engage in everyday are characterized by virtue.
“His countenance, like richest alchemy’, will change to virtue and to worthiness…” -Shakespeare, Julius Caesar
In the following dialogue Marcus, a mentor, and four younger colleagues explore the first of Aristotle’s twelve moral virtues-‘courage.’
Elizabeth: “ It’s the start
of a new year and I am focused on one thing. Reaching my billable-hour goals. I
feel like no matter how hard I work or how much I want to help my clients, it’s
always the bottom-line, the death reaper waiting to suck the soul out of my legal
practice. I went to law school expecting to enter a professional career focused
on helping people, personal growth and maybe even making a positive
contribution to society. Marcus, how can
you practice law for so long and not be utterly jaded by this endless cycle?”
Marcus: "I think we can agree that lawyers too often focus on reaching billable hour targets, making more money or winning arguments while ignoring the moral side of the practice and forgetting that the practice of law is a virtuous undertaking. Wouldn't our practices be more meaningful, if we stopped to contemplate that what we are doing is not primarily a means to make money, but rather a virtuous undertaking?"
Elizabeth: "Surely, but I rarely feel that way during my daily practice, nor do I have the time to think about it. I am too busy fielding emails, responding to my boss’s latest demands, and worrying about my billable hours."
Marcus: "I understand, but entertain me. Let’s consider courage generally. What is 'courage'? In his Confessions Tolstoy suggests there are three types of people in this world. Those who are too stupid to realize life has no meaning; those who realize life has no meaning but do not have the courage to kill themselves, and so go on living meaningless lives; and those who know life has no meaning and have the courage to kill themselves. But is committing suicide an act of ‘courage’?"
Maureen: "A courageous act should be selfless, and someone who commits suicide is far from selfless. They do not ask their loved ones how they feel about the suicide. It is a selfish act."
Marcus: “Perhaps, but to be fair wouldn’t you say that an act of courage requires overcoming some fear or trepidation. And doesn't committing suicide require overcoming the fear of death?"
Audrey: "I can agree with that, so perhaps it may be courageous to commit suicide, but that does not make it virtuous. I don't think committing suicide can be virtuous, since it is not selfless."
Marcus: "That is a good point. Can we come up with other examples of a courageous act, which is not virtuous?"
Jacob: “Yes, a suicide bomber who takes innocent lives may be overcoming the fear of death which I think takes courage, but it is not virtuous. A virtuous act must result in some ‘good’ and intentionally killing innocent people is never good.’
Marcus: "OK, so now I think we can agree that virtuous courage is selfless, involves overcoming some fear or trepidation, and results in some good to an individual or collective. Let's look at other acts of suicide. Consider the Japanese kamikaze pilot during World War II intentionally crashing his plane into an enemy ship. He takes his own life believing that he is killing the enemy to protect his fellow soldiers and his country. Is this a courageous act?"
Maureen: “His country was in the wrong. They were the aggressors. And in Japanese culture taking one's life is seen as 'noble'. So maybe he did it just for the glory, and not to save the lives of his fellow soldiers or defend his country. His act would not be selfless in that sense, and while it may be courageous because he faced certain death, it does not represent virtuous coverage."
Marcus: “Would you feel differently if this was done by an American soldier?"
Maureen: "Well, yes, because we were in defending freedom and innocent lives and in our culture taking one's life is not considered 'noble,’ unless it is done to save another. If you die seeking glory your act is not selfless, and therefore not virtuous."
Jacob:" I think the issue of suicide comes down to motivation. Is your motivation fame, eternal life, or solely for the benefit of others? In the truly selfless act, there is no reward for the sacrifice that is made. To me, that is virtuous courage."
Marcus:" It seems then that there are different levels of coverage, or different types. Aristotle characterized virtues as a mean between two extremes, 'excess' and 'deficiency'. And so we might consider the ultimate sacrifice, the giving of one's life for others as an extreme showing of courage, but certainly there are other actions, that while not as bold, we would still consider courageous and virtuous. We have identified virtuous courage as involving selflessness, or self-sacrifice, and overcoming fear."
Audrey:" I understand, but I just don't see how advising a client, taking a deposition, or appearing in court involves virtuous courage…"
Maureen: “I can. There were times when I was afraid or fearful giving a client advice I know they did not want to hear. Advice that is often times difficult, but necessary to convey."
Marcus: "You've hit on an important point about virtue. To be virtuous is to do something that is both difficult and necessary. Many philosophers think this is the touchstone for determining whether or not our conduct is virtuous. In talking to clients, we often find ourselves saying things that are difficult, but must be said if we are going to act in their best interest. Moreover, we usually feel we get nothing out of that exchange. But isn’t there satisfaction in knowing that we are doing the right thing for a client, and if we think about it, isn’t that courageous?”
Elizabeth: "Ok, I understand,
but usually when I think of courageous lawyers I think of people like Clarence
Darrow, Thurgood Marshall, and many others who take on difficult cases for
those who are most in need of their services and involve life and death issues,
or have significant social implications. That is usually not the nature of my
practice"
Marcus: "Yes, I agree those are courageous lawyers. And we would all do well to emulate them, even to some small degree, and even if our practice doesn’t involve life altering issues. Nonetheless, I still think that in every day activities we have to be courageous. Can anyone think of another example of that?"
Jacob: "Whenever I walk into a hearing, I often feel a certain amount of fear. I am representing a client, and I don't want to lose on their behalf."
Audrey: "Yes, there is that. But there is also the fear of the judge just flat out rejecting your argument. It is a rejection of your intellect. A lawyer is personally and professionally vulnerable in those situations. I think it takes a certain amount of courage to overcome that."
Marcus: "As part of these daily responsibilities as lawyers, we all deal with conflicts between the lawyers’ responsibility to a client, and the lawyers own sense of personal honor, including obligations to society and the legal profession. Living up to these responsibilities requires courage. Weighing our ethical obligations to the court, our client, and to society is necessary and can be difficult."
Audrey: "You know, I was skeptical about whether a modern lawyer practices virtuous courage or even courage in her everyday activities. But now I see that our regular routines often require some level of virtue and courage. Do the rest of you think we could take some time out each day or maybe once a week to realize how this practice is indeed virtuous and sometimes even courageous? "
Maureen: “After this
discussion, I agree, I think we can all take a moment, even a brief one to
recognize the virtuous courage we practice everyday.”
Elizabeth-“I’ll try to find a
few minutes each day to think about that, even if I can’t bill for it.”
“Life shrinks or expands in proportion to one's
courage.”
― Anaïs Nin
According to Robert F. Kennedy, “Courage is the most important attribute of a lawyer. It is more important than competence or vision. It can never be an elective in any law school, and it should pervade the heart, the halls of Justice and the chambers of the mind.”3 Although this is a very Kennedy-like thing to say, full of hope and naivety, it rings true. Courage in the practice of law is more than just walking into a courtroom and praying you don’t get your a** handed to you. Courage is essential in our practice. Courage, in its virtuous form, should guide our hands as lawyers. It should guide us to do right by our clients. It should give us the strength to stand apart from the majority in the face of widespread public opinion or long-standing legal precedence. And being mindful of this virtue everyday has the power to improve our professional lives.
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[3]
Robert F. Kennedy, September 29, 1962, https://www.justice.gov/sites/default/files/ag/legacy/2011/01/20/09-29-1962Pro.pdf
