The Problem of the Faithless Principal: Fiduciary Theory and the Capacities of Clients

01 Jan 2019

Philosophers sometimes criticize the lawyer-client relationship for rendering the lawyer “at best systematically amoral.” Legal ethics theorists typically analyze the lawyer-client relationship in terms of role-differentiation or a separation of public and private moralities. But if we concentrate instead on the allocation of responsibility for decisionmaking within a fiduciary relationship, the idea of differentiation or separation of moral spheres falls away somewhat . This Article considers two issues raised by the allocation of moral responsibility within the lawyer-client relationship. First, why should the agency structure of the lawyer-client relationship, with its associated fiduciary duties, do anything to affect the moral situation of the lawyer? There must a bridge between the legal concepts of agency and fiduciary duties and the moral notions of authority, obligation, accountability, dignity, equality, and respect. That connection is provided by an insight of fiduciary theory, that lawyers substitutively exercise their clients’ capacities. In the context of the lawyer-client relationship, the critical capacity is that for giving reasons in response to a demand for accountability. Second, what happens when the client fails to satisfy standards of reasonableness? There may be occasions when the client is behaving capriciously or otherwise not exhibiting the capacity essential to moral agency. If true, then the earlier concern resurfaces: The lawyer-client relationship would in fact be an amoral domain, as opposed to a moral division of labor, if the client has not acted as a responsible moral agent in determining the objectives of the professional representation. In these situations, the lawyer may be called upon to assume greater responsibility for providing reasons in response to a demand by others for accountability.