(This post, by Amy Salyzyn, is an abbreviated version of a longer article with the same title that appears in Vol 42:4 Hofstra Law Review. Full citations appear in the original article)
Broadly speaking, positivist accounts of legal ethics share a view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.
Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same "fidelity to law" (to use Brad Wendel’s term) that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.
What has not been given much attention to date is how the law governing lawyers is different from other types of law. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter — the proper bounds of lawyer behavior — that legal ethics theory itself purports to address. As a consequence, two of the "typical" questions or challenges lobbied at positivist accounts of law — what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral or discretionary terms — give rise to some outstanding questions in the case of positivist legal ethics theory.
With respect to the first query, a number of other commentators have already observed that positivist legal ethics theory doesn’t seem to have a clear answer to the question of what should happen in circumstances where strict adherence to the law governing lawyers might result in a significant injustice (see, for example, discussion in Andrew B. Ayers, “What if Legal Ethics Can’t Be Reduced to a Maxim?” and David Luban, “Misplaced Fidelity”). Is there an escape valve? If there is one, in what circumstances des it come into play?
Notwithstanding the discussion that has already occurred regarding the availability and definition of an escape valve within a positivist account of legal ethics, one interesting question has been given little attention: do cases involving disobeying or undermining the law governing lawyers in order to avoid unpalatable consequences give rise to unique considerations? Is the answer to the question of when a lawyer may disregard the law different in cases where the law being subverted is part of the law governing lawyers (take, for example, the confidentiality provisions) as opposed to part of the “general law” (by which I mean all law that is not the law governing lawyers). If respect for legal settlement is a paramount norm under the positivist account, is a lawyer’s disrespect for a settlement that directly speaks to how she should act materially different from a lawyer’s disrespect for a law that addresses something other than the legal boundaries of her conduct?
There is reason to think that there may be a difference if one considers jurisprudential accounts that take up the interaction between law and trust. Take, for example, Scott Shapiro’s “Planning Theory of Law” which contends that “attitudes of trust and distrust presupposed by the law are central to the choice of interpretative methodology.” If one thinks in terms of an “economy of trust” (to borrow a term from Shapiro), one could argue that advising clients about law is squarely in the ambit of that which lawyers are trusted to do, while, in contrast, the law governing lawyers steps in when lawyers cannot be trusted how to act. On this basis, one could ground a case that lawyers are more constrained in deviating from their obligations under the law governing lawyers, as opposed to counseling or assisting clients in subverting the law, in the face of unjust consequences. This seems, at the very least, to be an issue worth more dedicated exploration.
A second set of puzzles emerges when one considers the interaction between the law governing lawyers and non-extreme cases involving discretionary rules. As a number of legal ethics scholars have observed (see, for example, Fred Zacharias’ article on “integrity ethics”) professional conduct codes require, at times, that lawyers exercise moral discretion. When faced with unclear rules, how is a lawyer operating under the positivist account of legal ethics to govern herself?
Recognizing that law and morality may be intertwined is, of course, far from fatal to a positivist account of law. However, the puzzle that these “pockets” of moral deliberation pose is not a matter of theoretical incoherence, but rather, one of guidance.
One possible response from a positivist perspective is to treat rules of professional conduct permitting moral deliberation as analogous to other areas of doctrinal law that incorporate moral terms and, on the basis of this analogy, point to shared interpretative practices as providing guidance to the lawyer.
But, when we are dealing with the type of discretionary pockets created by something like a permissive future harm exception, it would seem that we are dealing with a situation where previous interpretative practices do not provide a (meaningful) empirical guide for action – the point of the rule is to permit the lawyer to engage in extra-legal deliberation (see, for example, discussion in Bruce Green and Fred Zacharias’ article “Permissive Rules of Professional Conduct”). One might be reasonably concerned that positivist legal ethics theory, with its focus on fidelity to law, gives little attention as to how a lawyer could or should engage in these types of deliberations. If the domain of legal ethics theory is understood as consisting of theories of action—that is, accounts of what lawyers should do in practical terms—the failure to substantively engage with how a lawyer can tangibly incorporate moral or political reasons and values into her decision-making is a concerning limitation.
A few types of puzzles seem to emerge when one considers the interaction of the law governing lawyers and positivist accounts of legal ethics. Although none would seem to be fatal to the positivist approach, they do seem to be worth considering further if one takes seriously the role of legal ethics theory in offering practical guidance to lawyers as to how they should behave.