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.