Sunday, June 20, 2010

80th Installment. What happened to lawyers’ amoral ethical role?

The "standard" amoral account of lawyer's ethics was expressed most precisely and defended most rigorously in Professor Stephen L. Pepper's 1986 paper "The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities" and in Professor Pepper's rejoinder to moralist David Luban's comments. Professor Pepper so severely savaged Luban's moralism that Luban attached a caveat—stating that some of his positions have since changed—to his permission to publish the comments. Luban's drubbing by Professor Pepper consolidated "neutral partisanship" as the profession's formal ethical ideal, but Luban's moralistic view has nevertheless come to color the state bars' practical interpretation of legal ethics. While Professor Pepper didn't predict the swing toward moralism, his analysis provides a tool for understanding it.

Although moralism carries numerous grand implications for law, the 1986 debate focused on two issues: client choice and legal tactics. The issue of client choice is: Should a lawyer apply ordinary morality to decide whether to take a case, or should the lawyer suspend ordinary moral judgment when deciding? The issue of legal tactics is: Should a lawyer apply ordinary morality to determine what legal tactics to use, or should the lawyer employ the most effective tactics that his client is willing to pursue? Professor Pepper opposed applying ordinary morality to both decisions, and David Luban favored it for both.
Pepper vs. Luban
Professor Pepper argued that the formal purpose of the lawyer role conflicts with lawyers' informally constituting themselves as a moral screen for any citizen's legal projects. Professor Pepper's main argument was based on the democratic necessity of citizens' unfettered access to the law, independent of lawyers' moral scrutiny, but his most-interesting and most-ignored argument derived from a view of public policy as contract: the ethical codes—3/4 devoted to guild protection and 1/4 to attorney duties to clients—demonstrate a bargain between society and the profession. What is the profession's quid pro quo for the anticompetitive protection society affords lawyers? The ethical codes evince that the public's benefit of the bargain is the lawyer's duty to subordinate any conflicting personal interests to client- (or potential-client) purposes related to the representation. The lawyer's personal interest in avoiding dirty-hands involvement in unsavory cases or tactics is lawyer-centered, an unethical consideration, which shouldn't affect the availability of legal representation and other access to the law, a public good. (See also Spaulding, The Rule of Law in Action: A Defense of Adversary System Values (2008) 93 Cornell L. Rev 1377, 1391 [antidemocratic implications of substituting lawyer's conscience for the client's].)

Unsurprisingly, the concept of an amoral lawyer role repulsed David Luban, since Luban isn't law trained: his criticisms of the lawyer's amoral role were remarkably vulgar—laymanlike in the worst sense. Luban rejected role-specific morality on principle; his argument, repetition of axiom: professional ethics must be transparent to ordinary morality. Accepting a client and deciding on legal tactics are, for Luban, personal moral decisions. Luban's naive arguments harped on moralistic platitudes, such as, "You must remember that some things autonomously done are not morally right." Luban missed the point that to have a system making lawyers broadly available to the public, professionals must evaluate their acts using role-specific ethical criteria, and he exposed the shallowness of his arguments when he disingenuously maintained that access to lawyers isn't important for autonomy because the citizens seldom have recourse to the law.
Role Amoralism vs. Moral Activism Today
The formal ethical rules continue to espouse neutral partisanship, albeit in undertones; but the regimes the state bars enforce and the judiciary's attitudes have gutted the maxims of neutral partisanship. The treatment of vexatious litigants by judges—lawyers are afraid to handle vexatious-litigants' cases, regardless of case merit—shows how far the profession has swung in its ideals from amorality in client selection. The state bars' prosecution of lawyers for decorum violations provides an indirect glance at the decayed duty to use any advantageous tactic.

From Professor Pepper's under-recognized insight into the terms of pact between public and profession, we can infer why the profession has proceeded in the opposite direction after Professor Pepper demonstrated the correctness of the amoral neutral-partisanship position. Society's offerings to the lawyer guild have declined, peaking when Professor Pepper wrote his essay. The status of lawyers and consequently their benefit from guild privileges had risen until then, but the trend reversed with lawyer glut, then outsourcing, and finally businesses' recessionary drive for profits. Since lawyers can obtain fewer privileges from guild membership, they are willing to cede less to the public. The license to influence the choice or course of litigation according to a lawyer's moral views is a privilege lawyers are unwilling to forgo in return for depreciated rights. Apart from the instrumental significance of the change, it marks the erosion of a symbolic bulwark against moralizing the profession. (See Wendel, Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection (2006) [even limited moralistic opt-out rights for lawyers are inconsistent with concepts of client legal entitlement].)

Professor Pepper's analysis permits further inference. In response to Luban's downplaying ethical guidelines, Professor Pepper pointed out that the absence of guidelines leads to the assumption that inarticulate knowledge is the root of discipline matters. Inarticulate knowledge—primal moralism—reduces legal ethics to a supposed common denominator in ordinary morality, implying that legal ethics is mainly about condemning unscrupulousness. Hypocritical guidelines recreate the anomie of no standards, reinforcing Luban-style moral activism's appeal.

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