Rights and Duties: The Ethical Obligation to Serve the Poor

University of Illinois Law Review, 2023

The legal profession has long embraced the view that lawyers have an obligation to uphold the rule of law. Upon close examination, however, it seems clear that lawyers are not expected to do much to promote it. If we take the bar’s pronouncements seriously, we see that, for the most part, so long as lawyers zealously protect and pursue their clients’ interests within the bounds of the law, they are in fact fully discharging their obligation to uphold the rule of law. This Article argues that this conventional view—that mere compliance with formal legality satisfies the lawyer’s duty to uphold the rule of law—is problematic. First, this view makes the duty to uphold the rule of law superfluous, because lawyers are already obligated under the ethical rules not to violate the law. Second, this view assumes—almost as an empirical matter—that compliance with the positive law is sufficient to maintain a society that lives under the rule of law. Yet, a growing body of scholarship on “legalistic autocracies” casts doubts on that assumption. What these legalistic autocracies seem to demonstrate is that it may be possible to observe formal legality without the rule of law. This Article offers a wider, alternative account of the lawyer’s rule-of-law obligations that better comports with our strong, albeit vague, intuition that the rule of law demands far more than bare compliance with legal norms and is far more complex than what is conventionally assumed. This alternative view is grounded in the realization that “the rule of law” is a teleological notion—in other words, to be understood in terms of its point: we seek the rule of law for purposes; we enjoy it for reasons. Because of the inherent teleological character of the rule of law, no check-the-box criterion—such as compliance with formal legality—will guarantee the valued state of affairs in which law actually rules. This Article argues that the substantive value, or telos, that lies at the heart of the rule of law is the restraint of the arbitrary exercise of power, a concept that comes from the republican intellectual tradition. By taking this substantive value seriously and constructing a thicker, more substantive understanding of the rule of law around this value, we better appreciate the myriad ways in which our society falls short of that ideal, and we can better see why and how the conventional view of the lawyer’s duty to uphold the law, grounded in legalism, falls short of respecting and nurturing the rule of law.

2007

many of our students are introduced to public service and public interest law practice. The Series informs the Washington University community and wider community on issues of justice through the presentations of the speakers (that are posted on the law school's web site), through the Articles drawn from the presentations that are published in the Journal, and through the seminar course that accompanies the series in which students have the opportunity to meet with the speakers, read their work, and develop papers that focus on the speakers' ideas. * * * * LUCAS GUTTENTAG-IMMIGRANTS' RIGHTS IN THE COURTS AND CONGRESS: CONSTITUTIONAL PROTECTIONS AND THE RULE OF LAW AFTER 9/11 Lucas Guttentag, the National Director of the Immigrants' Rights Project of the American Civil Liberties Union Foundation, is widely respected as one of the nations' top immigration lawyers. He has litigated major immigrants' rights cases, including regional and national class actions for almost twenty years. He has argued many cases in federal courts of appeals through the country and successfully argued cases in the U.S. Supreme Court, including I.N.S. v. St. Cyr and Calcano-Martinez v. I.N.S. In his Essay, Guttentag discusses immigrants' rights and the changes they have undergone since September 11 with the goal of revealing some of the shortcomings of recent legislation. Because

Syracuse Law Review, 1992

The publication of the following three articles creates an opportunity to consider the multiple roles of the lawyer and what I will call multidimensional lawyeringlawyering that accounts for the ways in which these sometimes colliding, sometimes intersecting, sometimes diverging roles expand our vision of lawyers' ethics. One of the peculiarities of the field of law known variously as "professional responsibility," "the legal profession" or "professional ethics" is its excessive focus on the lawyer's role in relation to the client. Lawyers like me who teach professional responsibility tend to think about the lawyer-client relationship as the primary if not the organizing principle of this field. This client-focused approach to ethics is apparent, for example, in the casebooks, problem books and treatises in this area. After the obligatory opening chapters on the nature of the legal profession, the books invariably turn next to aspects of the lawyer-client relationship, which dominate the texts.' Only then are multiple role

2001

This topic has received great attention in the legal literature. Commentators have variously described the original conception of the lawyer's role as that of (1) the advocate, see, for example, Monroe Freedman, Understanding Lawyer's Ethics 65-66 (Matthew Bender 1990) (identifying the advocacy role as the historical source of modern legal ethics);

William and Mary Law Review, 2009

Hofstra L. Rev., 1990

Compare ABA RULES DRAFT, supra, Rule 1.7(c)(2), reprinted in PROFESSIONAL RESPONSIBILITY , supra, at 83 (allowing a lawyer to disclose a client confidence "to the extent it appears necessary to prevent or rectify the consequences of deliberately wrongful act by the client.") with MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.6 (1983) [hereinafter ABA RULES] (adoting the rule on confidentiality of information but deleting 1.7(c)(2)). See also Joint Report, supra note 1, at 1162 (emphasising that the lawyer's primary obligation is to the legal system.) 1 Lawry: The Central Moral Tradition of Lawyering Published by Scholarly Commons at Hofstra Law, 1990 4. See generally ABA RULES, supra note 3. In the final version of the ABA Rules, specific rules replaced distinct roles. Compare id. Rules 2.2, 2.3 with ABA RULES DRAFT, supra note 3, Rules 5, 6, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 126-34 (noting the de-emphasis on the variety of roles lawyers play as compared to the description in the Joint Report, supra note 1). Of course, the narrowing of the exceptions to the confidentiality rules is a clear substantive change. Compare ABA RULES DRAFT, supra note 3, Rule 1.7, reprinted in PROFESSIONAL RESPONSIBILITY, supra note 3, at 83 with ABA RULES, supra note 3, Rule 1.6. 5. This, of course, is the question that is truly at the heart of the moral inquiry into the ethics of lawyers. See generally Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYER'S ROLES AND LAWYER'S ETHICS 25 (D. Luban ed. 1983) [hereinafter THE GOOD LAWYER] (examining how a person's role enters into the deliberation and assessment of the morality of her actions); Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). But see Drinker, Some Remarks on Mr. Curtis' "The Ethics of Advocacy," 4 STAN. L. REV. 349 (1952) (stating that "no man can be either too honest, too truthful, or too upright to be a thoroughly good lawyer."). Thus under the older tradition, no conflict existed.

Stanford Law Review, 1999

William Mary Law Review, 2009

International Review of Law and Economics, 2014

Class action lawyers do not merely represent clients, they also make law, an observation explored by Kobayashi and Ribstein in "Class Action Lawyers as Lawmakers." Kobayashi and Ribstein observe that a class action lawyer's inability to internalize all the benefits of her innovation may lead to underinvestment in lawmaking, which they describe as a public good. But privileged groups may produce public goods, and where production of the good also enhances the probability that a supplier of the good will be compensated for her production, as may be the case in the selection of counsel in class action suits, there can even be overproduction. Moreover, if there is underinvestment in class action lawmaking, a more general, and potentially greater, cause is inherent in every contingent-fee lawyer-client relationship, namely that the lawyer bears the full cost of litigation but must share the benefits, if any, with the client.