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Dominick Graziano has degrees in biology, philosophy and law. He is a member of the Florida Bar, and is Of Counsel with the firm of Bush Graziano Rice & Platter, P.A., www.bgrplaw.com.

Thursday, April 13, 2017

Liberality-Making Giving Matter


Generosity Bestowing Her Gifts by Giovanni Battista Tiepolo, 1734 


For guidance on the virtue of 'liberality' we once again look to Aristotle’s Nichomachean Ethics. In Book IV he discusses 'liberality' as the mean between being miserly and magnificent.[1]  To the Greeks, 'liberality' or 'generosity,’ meant being generous, both with one's time and one's possessions. However, to give virtuously requires checking emotions and thinking carefully about where and how we bestow 'our gifts.'

Now let us listen as Marcus discusses liberality in the practice of law with his young colleagues.

You give but little when you give of your possessions, it is when you give of yourself that you truly give." -Khalil Gibran, The Prophet


Maureen: "So Marcus, I hear you continued working for a client even though they stopped paying you. Are you being generous or just trying to satisfy your pro bono requirements?"

Marcus: "Neither actually."

Elizabeth: "Then what made you decide to continue? It had to be one or the other."

Marcus: "I'll tell you why I did it later, but you raise important issues that have moral implications for our professional and personal lives. Let's consider them. Tell me, what is 'generosity,' when should we be 'generous', and to whom?"

Elizabeth: "I didn't realize we were raising those issues, but by all means let's discuss them. As always, we will follow the argument wherever it leads."

Marcus: "Yes, but are you willing to not only follow the argument wherever it leads but also commit to taking action consistent with the conclusions?"

Jacob: "Marcus this sounds pretty serious. How can we agree in advance to take action when we don't know the commitment?"

Audrey: "I am okay with making the commitment, Marcus. If we are undertaking moral reasoning, then we should commit to taking action based upon it. Where do we start?"

Marcus: "A good place to start is with our usual guide, Aristotle. Aristotle said that 'liberality' is providing 'the right amount of money, to the right person at the right time'. Although Aristotle might not agree, we can substitute the word 'generosity' for 'liberality,' as generosity is a more commonly used word in this day and age.  So let's address Aristotle's first two criteria. How do you decide when and where to give?

Elizabeth: "To answer your question, shouldn't we first address the purpose of our giving? In other words what is our goal?"

Jacob: "As lawyers that's easy to answer. We give our time to satisfy our pro bono requirements, but in some states this requirement can be satisfied by donating money to a legal charity or the local bar association."

Maureen: "Jacob, that doesn't satisfy Aristotle's criteria. Plus, if you're obligated to give something, then I don't see how that can be construed as 'generous. Satisfying prescribed criteria is not necessarily rational, and therefore cannot be used to determine whether we are being virtuous."

Marcus: "Yes, and its important to remember that rationally directing our moral actions enables us to do good."

Elizabeth: "OK then our goal is first determine the good we are trying to accomplish."

Marcus: "Agreed. So we must  next consider who are we trying to help with our time or money?"

Audrey: "How about by helping those who cannot afford to pay for legal services? If so, that could include the majority of our community."

Marcus: "Yes, and here you have pointed out one of our profession's greatest challenges. At some point in their lives almost everyone is need of legal services. Some can afford them, but my guess is most cannot. So how can we determine where to focus our efforts? Perhaps directing our time and money to those persons for whom it would do the most good. How can we identify those people?"

Elizabeth: "I recently read that donating money to a charity, like a disaster relief fund is not always the best expenditure of one's resources. The disasters that get the most publicity tend to become over-funded at the expense of others who could use those excess funds."

Maureen: "I think most people will resist the idea of not giving to major disasters initially, even though I see what you are saying. If you are reacting emotionally to a story then many others are probably doing likewise. This can result in overlooking how our time and money can be used to do the most good."

Marcus: "I think you raise a good point. We should not rely solely on our emotions to determine where we can do the most good, and where there is the most need. Rather, we should look at how many people benefit from our generosity and by how much. One way to approach this is to consider what would happen if we did not donate our time or money. Would the need be satisfied another way? After all, it doesn't matter who fills the need but how much good is done. In other words, "the measure of how much good you achieve is the difference between what happens as a result of your actions and what would have happened anyway"[2]

Jacob: "I never thought of it that way.  But the problem for me is how much of my time or money to give. I am supposed to bill so many hours a year, and have so little time left over for pro bono work. So I blindly donate money to satisfy my ethical obligation and yet I never stop to consider if the money is being used to do the most good."

Marcus: "If we agree that we want to do the most good with our generosity, then we must consider whether we can offer our unique skills as attorneys in lieu of donating money.  So to answer the question, are we giving the 'right amount,' we must consider whether we do the most good when donating our time or money. When we stop to consider how our legal abilities can affect the lives of others, we may realize that donating these skills could mean the difference between life and death for someone, or at the very least, make a positive and life-changing difference to someone. Let me ask you this-imagine that you are passing a burning house, you hear a child crying inside, would you rush into the house to save the child?" 

Maureen: "Of course, we all would."

Marcus: "Well, perhaps in less dramatic fashion, consider the owner of a small business. It is his family's sole source of income.  One day he receives a letter from the city threatening to close him down because he has failed to obtain the proper permits. He discovers that he needs at least ten thousand dollars in legal services to resolve this. Money he doesn't have. So without legal help his business shuts down and he could lose everything. Jacob, if you knew you could resolve this for 50 hours of your time, would you?"

Jacob: "I never thought of it that way, and I'm somewhat ashamed that I didn't. Of course I would."

Audrey: "I never thought of it that way either Marcus. By using that logic we could easily improve the lives of many people each year simply by donating a couple hours of our time each week."

Maureen- "I was raised to give 10% of my earnings to my church. If I gave 10% of my working hours, that would be more than 100 hours. Following Aristotle the 10% might be too much or too little, but for me its a good benchmark."

Jacob: "And the money I usually donate doesn't amount to 5 hours of my time.  I agreed to commit to wherever the moral argument led, so I have some work to do." 

Elizabeth: "And they say lawyers can't do math... Okay, so Marcus, since I am committed, let me see if I have this correct. First, we should consider who benefits and by how much. Second, we must ask ourselves what is the most effective thing we can do, give our time or our money. Third, is there a need for particular legal services that is not being met. Fourth, and perhaps most importantly, what would happen if I didn't act. Is that about it?"

 Maureen: "That's good enough for me. Okay Marcus, so why did you decide to continue working for the client that ran out of resources to pay you?"

Marcus: "Would a fireman drop a screaming child he was rescuing from a burning house if he wasn't getting a paycheck?"

“Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities.” – U. S. Supreme Court Associate, Justice Ruth Bader Ginsburg [3]

It has long been recognized that without access to legal services our system of justice breaks down, and that system only continues to function if those in need are served, and all who serve give.  We would readily help a fallen elderly person, call 911 upon hearing a screaming neighbor, or throw a quarter in a homeless man's cup. We have a unique and hard-won skill set, which can be wasted if we only use it for pecuniary gain. It is important to recognize that using our skills to improve the lives of those in need, improves our communities, and ourselves. We can accomplish many goals at once.

As Mahatma Ghandi once said, "the best way to find yourself, is to lose yourself in the service of others." 

____________________________

This post was greatly inspired by the philosopher William MacAskill's work, and particularly his book, Doing Good Better: Effective Altruism and How You Can make a Difference. MacAskill focuses his analysis on charitable giving, among other things, and although he doesn't expressly pay tribute to Aristotle, his writing implicitly explores Aristotle's thesis. MacAskill implicitly argues that we should give the right amount, to the right people, at the right time. A simple sounding formula, but one which is rarely put into practice. Neither MacAskill nor Aristotle consider the particular issue of how lawyer's should give. However, their analysis is applicable nonetheless to a lawyer's moral, not just ethical, obligation to give. 


[1] Aristotle’s Nichomachean Ethics, Book IV, Chapter 1.

[2} Doing Good Better: Effective Altruism and How You Can Make a Difference, William MacAskill, p.69.

[3] Justice Ruth Bader Ginsberg, 2014, speaking at the 2014 Pro Bono Institute Annual Conference Reception.