Waking Up from Uneasy Dreams: Professional Context, Discretionary Judgment, and the Practice of Justice
Rostain, Tanina, Stanford Law Review
When an associate at a large corporate firm was interviewed several years ago about potential conflicts between his personal values and his work assignments, he chuckled at the quaintness of the inquiry. "Are you kidding?" he responded, "My work doesn't raise questions of conscience, it's just a fight over which big corporation is going to get a bigger chunk of the pie."(1) By all reports, this associate's experience is typical. According to common lore, personal ethics, considerations of justice, and other ideals are far removed from the daily concerns of lawyering. Under the accepted understanding of the role of lawyers, their fundamental commitment is to advancing clients' interests. In this view, broader normative commitments have no place in practice.
To William Simon, the radical disconnect between broader professional ideals and lawyers' work is a sign that something is very wrong with the practice of law. As he notes, although lawyers devote their lives to working within the system of justice, they are routinely implicated in injustice. This contradiction, Simon argues, is experienced by lawyers as profoundly alienating. With The Practice of Justice,(2) Simon offers a diagnosis of lawyers' professional estrangement and an antidote. Simon locates the roots of lawyers' malaise in the dominant categorical norms of the profession, which hold that a lawyer's fundamental allegiance is to her clients and leave no room for complex contextualized decisionmaking. The cure for lawyers' alienation, according to Simon, is to replace the categorical mandates of legal ethics with a discretionary approach centered on considerations of justice. Just as judges make reasoned discretionary judgments in deciding cases, he proposes, so lawyers should adopt a similar type of analysis when confronted with ethical quandaries. In exercising discretionary judgment, moreover, a lawyer should not focus on what action will advance her client's interests, but what action is likely to lead to a just resolution.
In his trenchant analysis, Simon undoubtedly identifies and dissects the core weaknesses in the current conception of law practice. Because his site of ethical inquiry is too limited, however, his remedy may prove ineffective. The problem, put simply, is that the site of ethical inquiry he identifies is too circumscribed. Throughout The Practice of Justice, Simon focuses on the decisionmaking process of a single lawyer faced with an individual ethical problem in an isolated case. In limiting himself to individual dilemmas, Simon neglects the role that social and organizational factors play in shaping lawyers' judgments.
The discretionary approach advanced by Simon presupposes that lawyers have an independent perspective on what justice requires in any given circumstance. Sociolegal research, which suggests that professional context plays a significant role in shaping lawyers' attitudes and values, puts this central assumption in doubt. Law practice is enmeshed in a web of social relations that affect how lawyers perceive the problems they confront. Lawyers' perceptions of law are shaped by their dealings with their clients, the lawyers with whom they work, and other actors in the legal system. If, consistent with Simon's ambition, ideals of justice are meaningfully to inform lawyers' daily practices, then these varied professional relations and interactions must be taken into account.(3)
Once the frame of inquiry is broadened to consider the social and organizational determinants of lawyers' views, then different questions become relevant in legal ethics. On a systemic level, it becomes imperative to understand the socialization forces at work in different professional contexts--an inquiry that legal ethics scholars have only recently begun to undertake. On an individual level, a lawyer's clients, her professional associates, what kind of practice specialty she pursues, and a host of related …
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Publication information: Article title: Waking Up from Uneasy Dreams: Professional Context, Discretionary Judgment, and the Practice of Justice. Contributors: Rostain, Tanina - Author. Journal title: Stanford Law Review. Volume: 51. Issue: 4 Publication date: April 1999. Page number: 955+. © 1999 Stanford Law School. COPYRIGHT 1999 Gale Group.
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