I write about lawyers' obligation of fidelity to law, by which I mean the law as it ought reasonably to be interpreted. This is meant to exclude the exploitation of loopholes from ethical lawyering. Of course, I am always having to articulate criteria for what constitutes a loophole, as opposed to a reasonable interpretation of the law. I'm curious, does anyone think the following is NOT a loophole:
Recent federal legislation prohibits the use of the word "census" on a mailing that is actually a soliciation for funds. Specifically, here is section (b) of H.R. 4621, the Prevent Deceptive Census Look Alike Mailings Act:
Matter Soliciting Information or Contribution of Funds-- Section 3001(i) of title 39, United States Code, is amended--
(1) by inserting, in the matter preceding paragraph (1), `; or which bears the term `census' on the envelope or outside cover or wrapper' after `such matter by the Federal Government'
After this legislation took effect, the Republian National Committee sent out another wave of fundraising mailings labeled "census document." The rationale? The word "census" is not on the envelope or outside cover -- rather, it is visible in a clear glassine window through the envelope (h/t TPM).
One assumes a lawyer was asked whether this mailing complies with the law. Would it be ethical to advise the client, the RNC, that the mailing did not violate the new legislation? (I'm writing a paper about good faith legal advising, so I ask this question entirely seriously.)
[Edited to add response to comments.] John's comment is very helpful in clarifying what I take to be the standard lawyer's response to this sort of problem. I don't mean that pejoratively, by the way, only that it represents the way lawyers tend to think about these issues. What it shows is the way legal realism is deeply rooted in the way we think about legal ethics. This isn't an original point with me -- David Wilkins and David Luban have both made it powerfully -- but it still goes relatively unappreciated. What I mean is this. John's move is to deny that the law really bans the mailings with the clear windows, and to fall back on (1) prudential considerations -- the Postal Service is going to be pretty annoyed, and (2) the likelihood of sanctions being low. The implication being that the client can then conduct a cost-benefit analysis, determine whether the payoff from the mailer is worth attracting the ire of the Postal Service, and from there decide how to proceed.
For legal realists, that's all that "compliance with law" means. But does the law really permit the mailers with clear windows? Is Andy right that there's sufficient uncertainty in the law that there's a good faith argument available that the mailings are permissible? I don't think so. True, the plain language of the statute says "outside" the envelope, but can there be any doubt that the statute was intended to prevent any visible representation that the mailing contains official census documents? You can be a textualist and reach this conclusion, because words have to be read in context, and the context includes the title of the bill, the "Prevent Deceptive Census Look Alike Mailings Act." (I'm surprised no one figured out how to make a title that turns into an acronym, like CAN-SPAM or USA-PATRIOT.) All sophisticated modern textualists -- John Manning, et al. -- acknowledge that you don't just read off the meaning of words mechanically, but you have to interpret the text of statutes in light of syntax, structure, and overall coherence. Add to that the obvious intent of the legislation and it seems patently frivolous to argue that the RNC's mailings comply with the law.
I agree with Alice that the jurisprudential questions should drive the ethical analysis. There's no good faith argument that the mailings are permissible. The best a lawyer can come up with is the argument that the mailings don't violate the "literal terms" of the statute. But no sensible judge -- even a textualist like Justice Scalia -- would take such a narrow, literalist approach to interpreting the language of a statute. Thus, why in the world are lawyers permitted to advise clients on the basis of an interpretive methodology that would not be respected by judges, who after all are the authoritative interpreters of the law?