Reason and Passion in Legal Ethics
Luban, David, Stanford Law Review
Should a morally ambitious person become a lawyer? Surely the answer should be yes: Each year thousands of students enter law school, and a large portion of them are there because they want to pursue justice in a way that draws on their highest intellectual and moral powers. And yet, as William Simon observes on the first page of The Practice of Justice, "[t]hey tend to come out with such hopes diminished, and the hopes often disappear under the pressures of practice."(1) The phenomenon is not new; there have always been those who find the practice of law disappointing. Oliver Wendell Holmes, who wondered aloud "why the subject was worthy of the interest of an intelligent man,"(2) described law practice as "the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests."(3) That was a century ago. A great many modern lawyers would agree. The problem is not just that today's fiercely competitive market makes it difficult for lawyers to turn away legitimate business, no matter how sordid they may find it. It is also that legal ethics, as most lawyers understand it, categorically requires zeal on behalf of all client interests, sordid or not. The rule of zeal, like other categorical rules of legal ethics, precludes lawyers from responding to moral judgments such as Holmes'.
According to Simon, conventional conceptions of legal ethics misunderstand the nature of law. They fail to appreciate the resources that law contains, and they overlook the crucial role that lawyers' discretionary judgments play in mobilizing those resources and bringing them to life. Simon's aim in The Practice of Justice is nothing less than a proof that morally ambitious lawyering is possible, and indeed ethically required. Simon's "argument assumes that the tasks of ordinary practice are often practically and ethically complex. In doing so [Simon is] faithful ... to the longstanding premise of the bar--that ordinary lawyering can be intellectually and morally engaging...."(4) With that assumption in mind, he offers a rigorous and far-reaching argument that legal ethics requires lawyers to make contextual, discretionary ethical judgments, rather than taking refuge behind categorical rules of zeal, confidentiality, and moral neutrality toward the client's ends.
But Simon's targets include more than the conventional combination of zealous advocacy and moral neutrality. They also include critiques of this view which argue that lawyers should never be morally neutral toward the ends they advance or the means they employ. Simon agrees that lawyers cannot abdicate responsibility for the values they further, but he disagrees that the source of those values is morality rather than law itself.
Simon's is a law-centered theory. The values he wants lawyers to further are legal values; the justice he means them to pursue is legal justice. "Lawyers," he writes, "should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice."(5) He elaborates as follows:
"Justice" here connotes the basic values of the legal system.... Decisions about justice are not ... applications of ordinary morality. They are legal judgments grounded in the methods and sources of authority of the professional culture. I use "justice" interchangeably with "legal merit."(6)
This passage implicitly contrasts Simon's law-centered theory with alternatives that view legal ethics as "applications of ordinary morality"-what might be called morality-centered theories.
One such theory is my own, which I elaborated in my 1988 book Lawyers and Justice.(7) Simon has generous things to say about my book,(8) and our conclusions and arguments on many subjects are the same; some readers might regard us (as I do) as kindred spirits because of our shared criticisms of adversarial ethics and our advocacy of what Simon calls "ethically ambitious or high-commitment lawyering. …