Charles Silver’s review of David Luban’s Legal Ethics and Human Dignity needs to be understood as the latest word in a debate which began with the publication of “What’s Not to like About Being a Lawyer?” a 1999 review essay of Arthur Liman’s memoir in the Yale Law Journal (109 Yale L.J. 1449), which Silver wrote with Frank Cross. In that essay Silver and Cross make several fundamental claims. First, they assert the moral value of all lawyer work. They ground this assertion in the position that the pursuit of lawful private interest is a social and moral good; when lawyers assist individuals pursue those private interests they too, therefore, do a moral good: “lawyers who help paying clients with private matters make valuable microeconomic contributions by helping create and maintain the world of commerce and valuable micropolitical contributions by maintaining a culture in which people actively create and use legal rights” (1449).
Second, they argue that this work of lawyers has as much inherent value as “pro bono” or other work directed at ameliorating the life of the more disadvantaged. They argue on the one hand that “private-sector lawyering makes an enormous economic contribution to social welfare, including the welfare of the poor” (1479) and that, on the other hand, it is unlikely that pro bono work will make a significant contribution to the life of the less advantaged. It would, Silver and Cross argue, be better and more efficient to simply transfer wealth to the disadvantaged; rather than requiring pro bono, “[w]hy not have lawyers donate money” (1483) while using their legal skills to their maximum economic value?
It was this latter argument which Luban takes exception to in Legal Ethics, arguing that Silver and Cross fail to appreciate the importance – morally and practically – of pro bono legal advice. He uses various examples to demonstrate that there are innumerable circumstances in which a cash donation would not accomplish the pro bono client’s objectives and, most fundamentally, would fail to accord that client with any respect for her human dignity. He uses Maimonides’ notion of the distinction between help, in which a lawyer assists a client realize her ends, and a handout, in which a lawyer would be treating the client as simply an object of the lawyer’s own beneficence. The difference in the dignitary respect accorded to the person needing assistance in these two alternatives is, Luban argues, clear, and demonstrates the moral importance of pro bono work.
In this review of Legal Ethics Silver takes a shot at a number of Luban’s arguments, but those that draw most obviously on his own earlier work, and Luban’s response to it, are his assertion that in essence Luban has over-valorized the importance of what lawyers do, and his expressed irritation at Luban’s response to his and Cross’s pro bono argument. Neither of these criticisms is convincing, or even really fair.
On the first point Silver wants to have it both ways. He wants to assert, on the one hand, the moral dignity of lawyers in private practice, to argue that “lawyers make exceptionally valuable contributions to economy and society”, and on the other hand to dismiss the attempts to a) understand more deeply the moral significance and scope of that contribution; and b) to subject lawyers to criticism when, like the torture lawyers, they violate even the internal norms of their craft. Silver doesn’t really engage with the fundamental arguments Luban makes; he rather raises the question of whether they are even worth making. Whatever one’s view of Luban’s particular arguments, the position that the questions he is attempting to address are in some way unimportant, that the exercise is useless because lawyers are either powerless (relative to the Executive) or unimportant (relative to those living and dealing with others in the shadow of law) just doesn’t work. It doesn’t work empirically given that even if what lawyers do is less important than Luban claims (which I don’t accept), if it has any importance at all, any social role whatsoever, then these questions need to be answered. And it doesn’t work coherently when your own starting position is that lawyers are making an exceptionally valuable contribution.
As a minor point, I’m also somewhat perplexed by the claim that the resignation of Richardson and Ruckelshaus was irrelevant to their being lawyers. It may be that resignation of other government officials in other circumstances would have been important too; but I don’t see how you conceptualize the resignation of an Attorney General and Deputy Attorney General other than as the resignation of lawyers. Government lawyers who resign when asked to do something they believe to be contrary to the rule of law make a special kind of statement, a statement inherently related to the lawfulness (or unlawfulness) of what they have been asked to do. It was not just that the matter was of “great importance to the country” in the abstract; it was of great importance in a particular lawyer-relevant way.
And on the pro bono point, while perhaps placing Silver and Cross at a reception desk of a legal aid office evokes an image that is unattractive to the person placed within it, it is only a small part of a much larger argument, an argument which does raise fundamental problems with Silver and Cross’s own position, problems that Silver in his review fails to address. The degradation from the client’s perspective (as opposed to Silver’s) arises not from the receptionist set up, but from the fundamental distinction between help and a handout, between treating the client as object and as subject. The questions which Silver suggests a “more charitable scholar” than Luban would have asked are not relevant to that basic point. [As a personal aside, the idea that there could be a “more charitable scholar” than David Luban truly defies credulity.].