Lawyers, Context, and Legitimacy: A New Theory of Legal Ethics

2010

tackle an important but underdiscussed problem in legal ethics: the problem of connecting normative theories about professional duties with a plausible psychology of action. As they felicitously put it, legal ethics must answer not only questions about what a lawyer must do, but also questions about how a lawyer must be-their shorthand, I take it, for "how a lawyer must be in order to do what (according to the theory) a lawyer must do." They plausibly suggest that ethical theories offer not only maxims of obligation and moral reasoning, but also idealized portraits of the moral agent. Actions that come easily to one personality type may be excruciatingly painful or embarrassing to another. Once we notice this crucial connection between actions and personality, we open up a new dimension for evaluating the theories: evaluating the portrait of the moral agent implicit in the theory. Viewed in this light (they argue), theories of legal ethics that might otherwise seem plausible can fail if they turn out to require lawyers to be an implausible kind of person, in one or more of the following ways: someone who is a misfit in the professional settings in which lawyers ordinarily work; someone who must possess cognitive capacities and moral virtues at an unrealistically high level; or someone whose overall personality turns out to be morally undesirable. Here I am paraphrasing the three criteria Woolley and Wendel specify for evaluating conceptions of how a lawyer must be: "whether that conception is functional, realistic or desirable." 1 Using these criteria, they raise doubts about the theories of William Simon, Charles Fried, and me. According to Woolley and Wendel, Simon's theory requires lawyers who are mavericks, and my theory requires lawyers who are (excessively?) moralistic; both are highly individualist to an extent that might make the legal profession impossible to regulate, and both require lawyers who are unusually smart and itive biases. Fried's theory, on the other unrealistically free from cogn

Geo. J. Legal Ethics, 2010

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The essay uses as a central reference point the "Mistake-of-Law" scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer's error. I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older jurisprudential tradition in which legal ethics is more convergent with ordinary morality.

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.

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

Washington and Lee Law Review, 1985

77 Fordham Law Review 1559 1590, 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.

2015

Notwithstanding the rich scholarly literature debating the proper roles of lawyers and the precise contours of lawyers’ ethical conduct, as a descriptive matter, the American legal system operates as an adversarial system, premised in part upon clear demarcations between the functions of different lawyers within the system. Broadly speaking, prosecutors have the distinct role of serving justice, which includes the duty to try to convict criminal defendants who are deserving of punishment, in a way that is consistent with both substantive and procedural justice. In contrast, private attorneys have a duty to zealously represent the best interests of their clients, within ethical bounds, but without taking into account broader notions of pursuing a just outcome. In some ways, criminal defense attorneys have a greater license or duty to engage in zealous representation of the interests of their clients, permitting or requiring them to use tactics that are questionable or prohibited for ...

1995

Legal Ethics

Jerusalem Review of Legal Studies, 2015

One of the highlights of the annual meeting of the Law and Society Association, held in Minneapolis, Minnesota in May 2014, was the Reader meets Author session of Yoav Dotan's important book, Lawyering for the Rule of Law: Government Lawyers and the Rise of Judicial Power in Israel. 1 The room was overflowing with scholars from several countries, interested in the legal profession, public administration, constitutional law, judicial activism, judicial administration, and administrative law. They were not disappointed. A panel of distinguished scholars from several disciplines in the social sciences and law offered important observations on the book. Their presentations were stunning, and the give and take in the freewheeling question and answer period that followed was exciting. The essays that follow cannot convey the excitement of the question and comment period, but together they reveal the richness of Dotan's book, and the wide range of reactions that it has engendered. The brief discussion below identifies the main themes of the book, and outlines its main arguments. It is designed to orient the reader to more substantive comments that follow from the several reviewers of the book. Yoav Dotan begins his book, by reminding us of the inherent tension in the practice of law. All lawyers, he asserts, confront a quandary: they owe fidelity to the rule of the law on the one hand, and owe unswerving loyalty to their clients on the other (p. 4). With government lawyers, he goes on to remind us, the tension is further complicated. Their client, the state, is a ''they'' rather than an ''it,'' and at times government lawyers, as is the case with prosecutors, have no ''tangible'' clients at all. So the question: ''to whom exactly do government lawyers owe a duty.. . ?'' It is a challenge. Dotan's book focuses on one particular institution and one particular period in which these questions were heightened. The institution is the High Court of

Legal Ethics, 2004

is certainly the well-known position of Hans Kelsen's "pure theory of law". Kelsen constructed this idea to identify the distinct epistemological position of jurists toward a legal system that serves to separate the objective judgments of law from personal judgments. Though a simplified portrait, the "pure theory" is nevertheless a useful illustration of an important view about law. See Hans Kelsen, General Theory of Law and State, A. Wedberg (trans.), (Cambridge, MA, Harvard University Press, 1945). 2 An interesting methodological issue appears here: whether it is our concepts that determine our social being or just the contrary? In this case, whether it is the conceptual scheme of the legal profession that determines its social position or the other way around? Professor Roberto Unger doubted the very wisdom of such inquiries. He wrote: "Order-that is, organization-.. . is the external, observable form of society. When social relationships are viewed from the standpoint of the beliefs that infuse them, I use the term consciousness. When they are studied as 'facts in themselves' that exist outside of the minds of their participants with a reality of their own, I refer to order. It is a real question whether, given the nature of the correspondence between reflection and existence, any distinction of order Legal Ethics, Volume 7, No.1 40 SU-PO KAO and consciousness makes sense at all." See Roberto Unger, Knowledge and Politics (New York, Free Press, 1975), p. 150. The one truth that we can be sure of is that ideas and institutions can be related in a meaningful way, and that they probably interact in a systematic and not an accidental way in the course of history. 3 I use the word "dialectic" in a Hegelian sense. The argument here again corresponds to the methodological issue that the proper understanding of the relationship between ideas and institutions is relevance rather than determinism. 4 Certainly one may say the distinction of private and public spheres is arguably the natural extension from selfautonomy.

Transnational lawyering is a field dominated by the large law firms and their lawyers. With transactions measured in the billions of dollars, these deals often fall into the “bet the house” category, which means it is not the occasion to try out a new law firm. The risk of experimentation comes at too high a cost.