I recently asked John Ehrett—our resident legal expert—about a fascinating podcast that discussed the ins and outs of what is known as the “Buried Bodies Case.” What follows is his response…

  -Ben Winter

Conflicting Vocations and Professional Ethics

Among legal ethicists, few situations have received as much attention as the “buried bodies case,” a disquieting story in which the specter of a serial killer’s crimes lingered even after his conviction. The murderer in question had told his attorney—in confidence—where his victims’ bodies were located. When pressed to disclose this information, however, the lawyer refused (citing his ethical duty to maintain confidentiality). The case hinged on the concept of attorney-client privilege: the stance that no matter what a client discloses privately, with only a few narrow exceptions, the attorney may not turn on their client and breach confidence.

In circumstances like this, the principle of attorney-client privilege—a professional norm that seems unreasonable to maintain inviolate—sharply clashes with one’s gut-level moral intuitions. With the murderer incarcerated, the counterargument runs, what harm can there be in breaching his/her confidence?

I suggest that the doctrine of vocation—and the acknowledgement that within an imperfect world, persons of good faith may sometimes find themselves on opposite sides while simultaneously working toward a shared goal—helps provide a framework for thinking Christianly about thorny dilemmas of this sort.

To begin with, a core principle of the legal field is the position that proper procedures are inextricably bound up with the pursuit of justice. While many people find it incredibly frustrating when these procedural rules seem to defy common sense, more often than not they reflect William Blackstone’s old adage that it is better for ten guilty men to walk free than for an innocent man to suffer unjustly. This axiom undergirds the entire structure of the American legal system and touches, in one way or another, all participants within that system.

An example serves to illustrate this. Suppose Mike kills Ernie with a baseball bat, and hides the murder weapon in his garage. The police, knowing only that Ernie’s killer fled into Mike’s neighborhood, ransack the homes of everyone on Mike’s block. They find the baseball bat and wish to use it at Mike’s trial. While Mike now ostensibly faces justice, everyone else on Mike’s block has suffered indignities and property damage from the police raids. In American law, as a powerful disincentive to such behavior, illegally seized evidence cannot be considered at trial: not only were the block raids improper, but they were ultimately for naught.

The appropriate way to do justice is not to victimize (or risk victimizing) more innocent people, but instead to follow the rules for investigation to which everyone has previously agreed. This general framework also applies to the professional ethics context. For instance, compromising attorney-client privilege would mean that an innocent client’s embarrassing admissions to his attorney—whether or not they are relevant to the matter at hand—could be dragged out into court. Among other problems, this would leave untrained individuals vulnerable to aggressive smear tactics. When one begins to compromise the integrity of one’s promises, the slope is slippery indeed…and the consequences can be far-reaching.

Thinking vocationally helps resolve these impasses. The doctrine of vocation entails recognition of one’s own duties as a person existing in relation to a larger whole. By serving God through excellence in one’s work, one is also oriented toward serving one’s neighbor in one’s vocational capacity. Thinking vocationally about the law, for instance, means that public defenders and those who defend unpopular clients shouldn’t be tarred as “mercenaries” willing to do anything for a paycheck. They are not only serving their clients, but serving every other person who may someday benefit from a system that requires high standards of proof before imposing punitive judgments. In a world of imperfect knowledge, shared commitments to pre-established rules—including the ethical duties of professionals—help maintain the structures designed to preserve innocent people from unjust punishment.

By contrast, a police detective’s vocation may be to use all his faculties to serve his neighbor through rigorous investigation to the fullest extent allowed by the law. The detective may gather evidence to ensure that a given lawyer’s client is sent to prison for decades, and he is certainly not acting immorally in doing so. In a world where no human is infallible or omniscient, life demands a balance—or tension—between extremes: both the lawyer and the detective may be acting in accordance with their vocations. Both are serving their neighbors by playing their distinct roles with excellence, even though they appear to be working at cross-purposes. Both are ultimately oriented toward achieving justice in the broader sense, even if they find themselves on opposite sides of a given lawsuit.

This is by no means a justification for a strictly situational approach to ethics—quite the opposite, in fact. In the context of vocation, people’s overarching duties take different forms. A police officer’s vocation may entail tracking, shooting, and killing a dangerous criminal when no other recourse is available; individual vigilantism is not, however, implicit in the vocation of most people. By contrast, a situational approach to ethics would involve periodic departures from one’s vocational duties under difficult conditions, based on one’s self-interest rather than neighbor-interest. (Of note: recognizing that a cartel hitman or producer of pornography cannot be said to be acting with his neighbor’s interest in mind, Gene Veith has written at length about what professions may or may not constitute “vocations”).

Vocations may change throughout life, but the common duty to “love one’s neighbor” does not.  Understanding vocation in context—one’s vocation intersecting with the vocations of others—offers a foundation for approaching “hard cases” as a Christian (and perhaps as a professional whose standard of behavioral ethics is specifically codified). Though the moral duties of one’s vocation may run sharply counter to what seems socially popular or optimal in a given “edge case,” this is no grounds for dereliction of such duty: we do not live merely for ourselves. Such challenges should perhaps inspire a renewed charity towards those who—in the course of serving God and their neighbor through their own individual vocations—make difficult decisions as best they can.

Dialogue

Ben: I appreciate your prompt response; it was very kind of you to oblige my question!

So am I correct in the impression that you support the decision, in this buried bodies case, to withhold the information about the found bodies? This is why you made the point about how the moral duty of one’s vocation sometimes overrides (in relationship to the larger whole–i.e. “serving every other person who may someday benefit from a system that requires high standards of proof”) the moral duty of human being qua human, correct? If so, how would you respond to the question of whether the conscience of the human qua human could allow him/her to violate the moral duty of his/her vocation?

What if, to use the buried bodies case as an example, the attorney simply couldn’t live with the fact of withholding the information (it was clearly very hard on him–he had a heart attack) and was forced by his conscience to reveal the fate of the daughter to her family? In this circumstance, would you say that he has violated his vocation? Or, would you say that violating his vocation (while it did happen) is subsumed under the larger / more important duty to conscience? Additionally, in this scenario, do you think that the attorney would be (or, should be) rightfully stripped of the ability to practice his vocation in the future?

John:

I think I’d answer by saying that, in extremis, one can come to realize that by conscience, they are not called to perform the duties of a given vocation. This might potentially arise from a failure to understand the duties to which one has ostensibly committed oneself – you could in theory compare this to the Catholic grounds for annulment of a marriage, which include a proviso allowing annulment in cases involving “a serious lack of the discretion of judgment at consent concerning the essential matrimonial rights and obligations to be given” (canon 1095 n.2).

A real-world example would be the Kim Davis controversy: since she agreed to solemnize civil marriages (and adopted the role of an official), she was implicitly subject to however the government decided to define “marriage.” In my view, she should have resigned – not necessarily a “stripping of ability to practice vocation,” but rather a voluntary relinquishment of that vocation on the grounds of incomplete understanding.

Similarly, the lawyers in question could have resigned from the bar and spoken up if their consciences did not allow them to maintain their professional obligations – in the same way that a police officer in a high-crime area might relinquish their gun and badge if they realized they were unable to take the lives of other human beings under any circumstance.

(At least, these are my somewhat rough thoughts). Hope that’s helpful!

Please continue the discussion, with us, below!