Michael Clayton, Thomas More, and the Duty of a Christian Lawyer

Amin Aminfar (Academy Class of 2003)

Amin Aminfar is a 2003 graduate of the Trinity Forum Academy. Following the Academy, Amin completed a dual-degree program in theology and law at Duke University, and currently serves as a lawyer with the US Department of Justice in Washington, DC. The views expressed in this essay do not reflect those of the US Department of Justice or the US Federal Government.

Can an ethical lawyer be a moral person?  In popular American sentiment, the suggestion that a lawyer may be moral is virtually a non sequitur. To the guild of lawyers, being ethical, that is, obeying the rules of professional conduct that guide the practice of law, is a profoundly moral task.  Both of these responses elide a basic truth: the interface between legal ethics and moral responsibility is fraught with choices that threaten both.

Michael Clayton, a film about personal crises in the lives of two New York lawyers, presents a classic, even clichéd, example of this tension but supplies a seemingly banal resolution.  But that resolution is one that, on closer examination, demonstrates the profound difficulties involved in the ethical choices that lawyers must make.  A Man for All Seasons, the drama depicting the martyrdom of the English, Catholic lawyer Thomas More, highlights how the Christian lawyer may face even greater difficulty in holding morality and the ethical practice of law together while pointing towards a provisional way forward.

The central villain in Michael Clayton is U-North, a chemical corporation that, the audience is led to believe, manufactured agricultural products that have killed a number of people.  This fact is known to the primary lawyer representing U-North in the resulting lawsuit.  Indeed, much of the drama of the film centers on what this lawyer, Arthur Edens, is going to do with the smoking-gun document.  Will he give it to the other side, virtually ensuring the destruction of the company, the law firm, and his legal career? Or will he keep it confidential, as a lawyer presumably should (assuming, as the film does, that no other disclosure requirement exists)? The first possibility implicates what may be considered commonsense morality: if one knows that someone has committed a terrible crime, then not reporting the crime and its perpetrator is both dangerous, because the perpetrator may strike again, and terribly unjust, because the perpetrator, although guilty, may go free.  The second possibility implicates a very basic rule of legal ethics:  lawyers are not allowed to divulge the confidences of their clients about past crimes.  The rule has exceptions, but, in general, the rule is as straightforward as rules of legal ethics get.

The rule of lawyer-client confidentiality is most often justified as a way to ensure that clients divulge information, especially potentially incriminating information, to their lawyers and thereby receive the best representation possible. (1) It is argued that removing the rule would not result in any significant increase of criminals being brought to justice, since no potential client would admit anything to a lawyer absent the prior protection of confidentiality.  Consequently—and worse—the absence of strong lawyer-client confidentiality would deny clients the one thing most necessary in an adversarial legal system: able representation by an informed attorney.

But Michael Clayton cares little for the Model Rules of Professional Conduct, the paradigmatic instance of American legal ethics.  Instead, Edens has an epiphany about the horrors of practicing law in a big firm that defends clients like U-North and decides to tell what he knows.  Though Edens is killed, his effort is ultimately carried out by his friend in the firm, Michael Clayton.  And because U-North has its secrets revealed by Edens, in violation of crystal clear rules of legal ethics that Edens knew were in place when he decided to enter the world of big-firm law and its coordinate, potentially odious clients, it is presumably sunk in the lawsuit brought against it.  Regardless, Edens is the film’s obvious hero, notwithstanding his betrayal of his client and profession.

As I’ve implied, Michael Clayton may be dismissed by lawyers as simply pandering to the sense of duty shared by people who do not bear the responsibility of functioning within, and carrying on the traditions of, the American legal system.  Indeed, it appears to be a simplistic morality tale: a flawed man—a lawyer—finally standing up and doing what is right to bring an evil corporation to justice.  But this narrative is not entirely indefensible.

A critique of Edens’s actions may begin with the observation that he knew precisely what he was getting into.  The managing partner of Edens’s law firm makes clear that he always thought U-North was probably guilty.  And it is certainly reasonable to think that, as a long-time litigator with the firm, he knew that he would have to represent clients that were probably guilty.  In this light, Edens’s actions seem even less defensible: if he thought the societal obligation of reporting the guilty was important, he should have entered another profession, or at least represented someone else.  But his awareness in this respect is ultimately immaterial. This is so because the relationship between lawyer and client, though nominally constrained by the rules of legal ethics, is in fact ultimately free of those constraints.  Although the lawyer knows that taking on a client could result in having to defend abhorrent behavior, the client cannot assume that the lawyer is obliged to total confidentiality even when the rule of lawyer-client confidentiality clearly applies.  The client only knows that the lawyer is obliged to obey certain rules, and that, should the lawyer fail to do this, the client has the right to do significant financial and professional harm to the lawyer.  The relationship between lawyer and client constructed by the rules of legal ethics does not contain, therefore, an absolute agreement that the lawyer will never betray the client, just that the lawyer is prepared to accept the wrath of the client (and subsequent wrath of the profession) should the lawyer make the choice to betray.  Both sides therefore enter the relationship having conducted something of a calculus about the other: the lawyer must determine whether or not the client is one that might require such a choice; the client must determine at what point the lawyer is willing to make such a choice.

This sort of choice has a long history supporting it, namely, the tradition of civil disobedience (the Christian basis for which has its best American formulation in Martin Luther King Jr.’s Letter from a Birmingham Jail).  This tradition holds that the willingness to disobey must always be accompanied by the willingness to suffer.  As a result, Michael Clayton has greater depth than is at first apparent.  As I’ve argued above, moral opprobrium cannot be attached to Edens due to his violation of the codes of legal ethics because such a violation was always in principle open to him in a way that was knowable to the client. And the violation itself was in conformity to a commonly recognized moral duty, rather than something like personal greed.  Although civil disobedience generally has to do with violating laws, not rules of ethics, the pattern here is nevertheless quite similar. Crucially, the film makes clear that Edens, and Clayton himself, suffer for the choices they make; Clayton will likely be disbarred and sued by U-North, a fate Edens avoids only by being murdered.  As a result, the film is perhaps not such a light morality play after all: it reflexively lauds disobedience and even a kind of betrayal, but does not pretend that such choices are without consequence.

Unfortunately, the analogy with civil disobedience does not quite resolve the tension between fidelity to codes of legal ethics and moral responsibility.  No citizen promises to obey every law the state has imposed, but every practicing lawyer must at some point take an oath promising to practice law in a way consistent with the mandate of his or her state’s rules of ethics.  In the case of the Christian, oath-taking is an extremely serious matter.  This is the central conflict in A Man for All Seasons: Can Thomas More take an oath for his king that would require him to deny his fidelity to the Catholic Church?  More memorably asks “[w]hat is an oath, then, but words that we say to God?” He continues:  “When a man takes an oath . . . he’s holding his own self in his own hands. And if he opens his fingers then—he needn’t hope to find himself again.”  A Christian that desires to be a lawyer is thus faced with a real danger: being bound by oath to act in ways forbidden by her faith.

There is no good answer to this problem, save perhaps the one that A Man for All Seasons itself suggests. There, when More learns that he will be required to take an oath denying the authority of the pope, a denial he cannot in good conscience make, he asks what the words of the oath actually are.  He is impatiently asked by his worried friends why it could possibly matter; the meaning of the oath is clear. But for More, the lawyer, the words matter, they are what bind him, not the intent of the writer of the words.  Accordingly, the prospective Christian lawyer must discern what the words of the professional promise (2) mean, and what duty, by her conscience, she is bound to.  It may be that she cannot enter the profession.  Or it may be that she can, but will have to be ready to suffer consequences other lawyers will not have to suffer.  In either case, a sacrifice is called for, but that can be no surprise to any person that professes Christ.

Notes
(1)  Confidentiality as a rule of legal ethics in America was first established in the earlier part of the 20th century.  As a concept, it has much earlier vintage, and is related to the evidentiary rule of attorney-client privilege.  See Lloyd B. Snyder, Is Attorney-Client Confidentiality Necessary?,  Georgetown Journal of Legal Ethics, Spring 2002.
(2)  I assume here that there is not a significant difference between oath-taking, affirming, and promising, and so use the words interchangeably. Drawing distinctions between these modes of obliging a person is beyond the scope of this essay.

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