Article. Abstract:
This article aims to explore the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to comply with the “spirit” or “purpose” of the law. The article suggests that, notwithstanding its promotion of admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. The lawyer’s duties as fiduciary, as agent, and as zealous advocate, responsible for representing the best interests of the client, preclude the lawyer from focusing on the spirit and purpose of the law rather than on the aims of the client that can be achieved within the letter of the law. Moreover, as a jurisprudential matter, a model of lawyering that appeals to the spirit or purpose of the law faces the substantial — if not insurmountable — burden of identifying an overriding spirit or purpose of a given legal principle, so significant as to compel a lawyer to ignore or subvert the letter of the law.
At the same time, this article recognizes the aspirational value and, potentially, the practical significance of the spirit of the law, particularly in the work of lawyers. Thus, the article considers areas of legal practice in which it may be appropriate for lawyers to rely on the spirit of the law. Specifically, the article suggests that in the context of the law governing the work of lawyers, formulated in ethics codes, there may be greater latitude for lawyers to be permitted — perhaps even expected — to engage in conduct that goes beyond the letter of the law. In such cases, since the lawyer is acting in a more personal manner, implementing laws directed at the lawyer’s behavior rather than that of the client, the lawyer may have more autonomy and responsibility to identify and delineate the underlying purpose of the law, and to act accordingly. In addition, because many rules of professional conduct are accompanied by an official comment articulating the law’s underlying purpose, lawyers may not face the same jurisprudential challenge that, in the context of other areas of law, often impedes attempts to identify the overriding purpose of the law.