Article. (h/t: Legal Theory Blog) Abstract:
In
this brief response I address critiques of my book, Lawyers and Fidelity
to Law, in the Texas Law Review by Tony Alfieri, Kate Kruse, David
Luban, Steve Pepper, and Bill Simon. Although the critical response
varies in detail, in general one can understand our differences using
H.L.A. Hart's idea of an opposition between the nightmare and the noble
dream of some practice or institution. A theory of law or legal ethics
may be animated by a fear that a different approach is the road to some
imagined hell, and I think this metaphor helps explain some of the
points of contention in the debate over the book.
The major
figures in the field of legal ethics -- many of whom I’m honored to have
as critics in this review symposium -- seem ironically to be worried
about an excessive tendency on the part of citizens and lawyers to obey
the law. Simon exalts civil disobedience and even nullification of law,
Luban reminds us that the Milgram Experiments demonstrated that people
are not particularly inclined to resist unjust authorities, and even
Pepper, who has resolutely defended the standard conception against its
academic critics for many years, has been concerned to provide avenues
for conscientious objection by lawyers. The nightmare case in the back
of the minds of these theorists is the German legal profession in the
Third Reich or the American legal profession in the Jim Crow South, all
too willing to lend their assistance and expertise to the administration
of an unjust regime by faithfully interpreting and applying positive
law. The figure of the lawyer-as-Eichmann haunts many legal ethicists.
Their noble dreams invoke real lawyers like Louis Brandeis or fictional
characters such as Atticus Finch to highlight the virtues of wisdom,
discretion, and informed judgment about both morality and the law. Not
surprisingly, these lawyers tend to be nonconformists and mavericks,
willing to disobey orders or blow the whistle if they believe the
client’s ends are unjust.
My nightmare, on the other hand, is set
in a world in which not all lawyers possess the rectitude and
trustworthiness of Brandeis and Finch, but are just as keen to act as
moral free agents. The fear is not anarchy but the abuse of power. The
figure that haunts my dreams is that of lawyers in the Office of Legal
Counsel presenting their “legal” advice with a straight face to the
President, informing him that the law authorizes waterboarding, or of
the in-house and retained lawyers for Enron who authorized the
transactions that eventually toppled the company. In this nightmare
vision, the lawyers do not believe themselves to be acting wrongly;
rather, they think they are respecting the ethical principle of zealous
advocacy. Never mind that they are counseling clients or structuring
transactions, not acting as advocates -- they believe themselves to be
ethically permitted to rely on strained, distorted, and implausible (or,
stated more positively, creative and aggressive) interpretations of law
to advance their clients’ ends. My noble dream is not a lawyer of
extraordinary wisdom and discretion, but merely a regular person who
balks at bending the law out of shape to permit her client to do
something.
Within a moderately decent society, the ethics of
lawyers acting as lawyers has to be oriented toward the law, not
morality or justice. If lawyers wish to be activists or dissidents,
they can be, but it is essential that they not confuse these very
different social roles. I am not blind to the injustices that remain in
the United States, but the legal response to this injustice should not
be individual acts of sabotage or nullification. Lawyers can, and
should advocate for change, but as always it should be zealous advocacy .
. . within the bounds of the law. One of the principal aims of the
book was to restore the last part of the lawyer’s mantra just quoted to
its proper place in legal ethics. Without the constitutive obligation
of fidelity to law, lawyers are just sophists, offering nothing beyond
the kind of half-baked moral advice that any decent client could supply
for herself. If there is something distinctive about our profession, it
has to be a commitment to the value of legality and a corresponding
obligation to respect the law.
Reminds me of the quote attributed to J.R. Ewing:
"Once you give up your integrity, everything else is a piece of cake."
Posted by: Richard Carmody | December 10, 2012 at 06:54 PM