EthicsWalk addresses
spiritual care as an ethical enterprise.
It explores why relationships between
spiritual care providers and those
they serve need protection, and
examines what that protection entails. PlainViews invites
our readers to share their responses
to each EthicsWalk column,
which will be published in the
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Response to Attorney Ethics: Not an Oxymoron
Anne, in responding to your comments and footnotes concerning Attorney Ethics... In this case, with a POA-HC "clearly" dictating the patient's wishes and an proxy/agent willing to follow them, it is interesting that your assessment solely burdens the chaplain with the ethical responsibility to advocate for the autonomy and beneficence of the patient, and that you limit the spouse's attorney with the responsibility of following the autonomy of the spouse.
This scenario reminds me of the all too common situation of a family member demanding CPR for a patient who has requested DNR/AND resulting in the raw “autonomy” of the family member dictating the medical response (resulting application of CPR) to the patient. Is this not the same permissiveness attributed to the principle of “autonomy” by the attorney to their client in this case?
"...Both chaplain and attorney had ethical responsibilities to counsel the wife. The chaplain’s duty flowed from the principles of autonomy and beneficence. Those principles attached to the patient whose wishes the chaplain needed steadfastly to articulate to the wife...."
"...However, the client, not the attorney, ultimately determines the goals and chooses the course of action to achieve those goals. An attorney is the client’s alter ego, not the client’s super ego. Quoting again from the Model Rules: 'a lawyer shall abide by a client's decisions concerning the objectives of representation and…shall consult with the client as to the means by which they are to be pursued. ... A lawyer shall abide by a client's decision whether to settle a matter. … A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities....'"
Rev. KC Schuler, MDiv, BCC
Theda Clark Medical Center
Pastoral Care Dept.
Neenah, WI
Anne's response:
What I hoped the assessment conveyed was the different way each professional is obligated by the practice codes of the particular profession to manifest his or her ethical responsibilities. In this case, the chaplain as a health care employee had a duty first to the patient's interests. The attorney was hired by the distraught wife and had her interests as first duty. The attorney would have counseled the wife about the rules and the likely outcome that the POA's determination would be followed. However, that is not what the wife wanted. As client, her wishes dictated the attorney's advocacy duty. Due process in the U.S. means that people accused of crime get their "day in court." "Fair process" enables people to address civic, business, family, etc. disputes in civil courts. Similarly, administrative proceedings, like the hospital's, provide an opportunity for people challenging decisions in non judicial forums to be heard. Sometimes their concerns produce different results, frequently they do not. But ethical attorneys are advocates for, not judges of, their clients. Were this not fundamental to legal ethics, in many divorces, both spouses would never be able to obtain legal representation!
Attorney Ethics: Not an Oxymoron
Patient Autonomy v. Family Comfort: The Provider’s Dilemma (PlainViews, 12/6/06, vol. 3, no. 21) portrayed a family divided over withdrawal of life support in a medically futile situation. The accident victim’s wife disagreed with the health care proxy’s decision for withdrawal. Advance directives clearly demonstrated withdrawal would be the patient’s wishes. The family’s minister and the hospital chaplain said “beneficence” dictated giving the wife more time to accept the situation. She hired an attorney who challenged the validity of the proxy and threatened suit if withdrawal occurred before determination.
The column elicited this response from Chaplain Gordon Putnam: “I am confused about the duty of the wife’s attorney. With an advance directive that seems so clear, isn’t there an ethical responsibility for the attorney to explain the law to the wife rather than threaten a lawsuit?”
Both chaplain and attorney had ethical responsibilities to counsel the wife. The chaplain’s duty flowed from the principles of autonomy and beneficence. Those principles attached to the patient whose wishes the chaplain needed steadfastly to articulate to the wife.[1]
The attorney’s duty was to the goals of the client-wife. Client autonomy is foundational to the attorney-client relationship. The attorney’s obligation is to advocate what the client believes to be the client’s best interests. Ethically, the attorney had to advocate for slowing the withdrawal process in spite of patient directives. Threatening a suit bought time for the wife’s grieving process.
Attorneys can educate and counsel clients, indeed plead and prod, but once a case is accepted, attorneys are ethically bound to advocate for their client’s wishes. Attorneys cannot knowingly permit clients to break laws or commit perjury. But attorneys must advocate for the interpretation of law or facts that best meet a client’s interests.
Most attorneys take seriously their role as “counselors at law.” They maneuver through clients’ emotional and psychological attachments recognizing those that can be compromised and adapting to those that cannot. They attempt to inform, educate and guide clients to reasonable decisions. The American Bar Association Model Rules[2] state: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.”[3]
However, the client, not the attorney, ultimately determines the goals and chooses the course of action to achieve those goals. An attorney is the client’s alter ego, not the client’s super ego. Quoting again from the Model Rules: “a lawyer shall abide by a client's decisions concerning the objectives of representation and…shall consult with the client as to the means by which they are to be pursued. ... A lawyer shall abide by a client's decision whether to settle a matter. …(b) A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.”[4]
Health care providers must provide competent medical services for patients in their care regardless of judgments about the patient’s values or life choices. Attorneys must represent the positions of their clients regardless of the attorney’s own feelings about those positions. A surgeon cannot walk out in the middle of an operation unless an equally competent surgeon is present to take over. An attorney cannot withdraw from representation in a case unless another attorney has entered an appearance on the client’s behalf.
The United States judicial system for all its flaws works because people can obtain legal representation regardless of their psychological quirks, emotional entanglements, political proclivities, or alleged crimes and misdemeanors. Judges and juries render findings and decisions, not attorneys. Ethically, attorneys can render only their professional advice and vigorous advocacy and must do both without publicly criticizing their clients.
Next month’s column will suggest ways in which people can work effectively with attorneys – their own and another’s – to prevent or to resolve conflict.
Footnotes:
[1] Arguably, the chaplain breached ethical responsibility to the patient by supporting the wife’s contrary position. The chaplain should have welcomed the intervention of the attorney as an ethically proper means of advocacy for the wife.
[2] The American Bar Association Model Rules of Professional Conduct are the basis for each state’s ethical conduct code for members of its bar.
[3] The American Bar Association Model Rules of Professional Conduct, Counselor Rule 2.1, Advisor
[4] The American Bar Association Model Rules of Professional Conduct, Client-Lawyer Relationship, Rule 1.2, Scope of Representation And Allocation of Authority Between Client and Lawyer.
Anne Underwood has an undergraduate
degree in religious studies, a
master’s degree in rural sociology
and a mid-life law degree obtained
after working over a decade as
a college administrator. She has
mediated for the Maine family courts
since 1983. Currently she serves
as an advisor to the ethics commissions
of ACPE, APC, the CCAR (Central
Conference of American Rabbis),
and NAJC, and consults with a variety
of Protestant faith communities
on issues of power, fair process,
and congregational conflict management.
Her articles on mediation and restorative
justice have appeared in the ACPE
News, The APC News and on the ACPE
web site. Articles on clergy accountability
and judicatory processes are published
by the Alban Institute and The
Journal on Religion and Abuse.
A
chapter, “Clergy Sexual Misconduct:
A Justice Issue,” appears in Body
and Soul: Rethinking Sexuality
as Justice-Love
, Marvin Ellison
and Sylvia Thorson-Smith, editors,
The Pilgrim Press, 2003.
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