New kid on the block. Legal ethics, as a scholarly discipline, has long been referenced in relation its youth—and, fair enough, given its relatively recent emergence in the United States in 1970s and even later arrival in other countries.1 But another story about legal ethics also exists. This is a discipline that has, over the last several decades, clearly come of age. We now have an extensive body of scholarship full of rich, diverse writings and lively conversations. While the full breadth of legal ethics is beyond any one book, we are fortunate to get a captivating snapshot of the field in the recently published Leading Works in Legal Ethics, edited by Julian Webb.
Leading Works aims not to identify “canonical” works but rather to allow scholars to explore what they personally view as a “leading work.” The result is a vibrant tapestry. Individual chapter authors bring their own unique threads to the collection—some of anticipated hues, while others wholly unexpected.
The collection is divided into two parts. Part I, “Philosophies Revisited,” explores the “philosophical strand” of legal ethics scholarship. In this part, the spectre of the Standard Conception of lawyers’ ethics, looms large, as it does in legal ethics scholarship generally.2 One of the leading proponents of a modified Standard Conception, Brad Wendel, considers in his chapter how the early writings of Tom Shaffer pose an “important challenge to those of us who see the lawyer’s ethical role as primarily linked with the legal institutions in a democratic society. . .[on the grounds that] it does not do enough to foster civic virtue or solidarity.” (P. 28.) For his part, Rob Atkinson chooses three modification proponents—Tim Dare, Brad Wendel, and Daniel Markovits—for his “three-way tie” for leading works in legal ethics. Atkinson’s perspective is admiring yet unapologetically critical, contending that “three of the best minds in legal ethics have built a model for our millennium that is bold and brilliant, but, alas, bad, and bad both ethically and politically.” (P. 88.) In their two chapters, Reid Mortensen and Julian Webb focus not on the modification camp but instead on those who have put forth alternatives to the Standard Conception. Mortensen examines Anthony Kronman’s use of Aristotelian virtue ethics in The Lost Lawyer: Failing Ideals of the Legal Profession, while Webb reviews David Luban’s dignity-based framing of the lawyer’s role. Rounding out Part I are chapters by Iris van Domselaar and Tim Dare, each taking us into more unexpected yet delightful territory. Van Domselaar does a deep dive into Martha Nussbaum’s The Fragility of Goodness: Luck and Ethics in Greek Tragedy and Philosophy. Dare enters the debate about how Atticus Finch, the “lawyer-hero” of Harper Lee’s 1960 To Kill a Mockingbird, should be viewed in light of Lee’s Go Set a Watchman, a novel that was written prior but only released in 2015 and in which Finch also appears but in much darker form, as “a segregationist, fighting to slow civil rights reform.” (P. 134.)
The contributions in Part I reflect several impressive strengths of this collection. First, not only do the chapter authors skillfully highlight their choices for “leading works”, they also thoughtfully offer some enticing glimpses as to where the field might go. To take just one example, in his chapter, Webb uses Luban’s dignitarian legal ethics as a base from which to advance a “Leviansian (re)evaluation” rooted in a dignitarian “ethic of service.” Second, the freedom to self-define “leading works” leads to some truly creative explorations. Dare, for example, in his interrogation of Atticus Finch, introduces “the aesthetic notion of pentimento, a term typically applied to an image or forms or strokes that have been painted over by the artist” (P. 144) to advance an argument that Finch, as presented in Watchman, should not be considered the same character as Finch, as presented in Mockingbird. What we see in Watchman should be considered, according to Dare, as a pentimento that Lee painted over when writing Mockingbird. Third, while each chapter pursues a new subject matter in a unique voice, the chapters are, collectively, conversational. For example, we not only hear from Wendel himself about how past scholarship poses challenges to his positivist modification to the Standard Conception but also have Atkinson directly take up Wendel’s (and Dare’s and Markovits’) accounts and advocate for a more ambitious path forward more squarely aimed at “big justice.” (P. 111.) In her chapter, van Domselaar engages not only Wendel’s work but also other foundational scholarship featured in the collection, including Luban’s and Dare’s, in her sketch of “a luck-sensitive neo-Aristotelian to approach to legal ethics.” (P. 114.) That the chapters thread together in such interesting ways results in a rewarding read and reflects the maturity of the field. This is a discipline with sophisticated, shared inquiries and passionate, ongoing dialogue.
The conversation continues in Part II, which moves towards accounts more squarely rooted in empiricism.3 Rebecca Roiphe opens with her review of three book-length histories of the legal profession authored by J. Willard Hurst, Jerold Auerbach, and Richard Abel. Roiphe’s chapter provides an engaging transition between the two parts, offering insights about how these accounts might help us consider the viability of philosophical framings of the lawyer’s role, as explored in Part I. Next, Richard Moorhead and Steven Vaughan provide a wonderful tribute to the work of Deborah Rhode, using “recent approaches to [non-disclosure agreements] in England and Wales as a vehicle for showing both the ongoing salience of the problems [in lawyer regulation] Rhode spoke to 20 years ago and the (partly) successful attempts to give more professional salience to the public interest.” (P. 175.) Allan Hutchinson then takes us more directly to questions of identity in his review of David Wilkins’ 1998 article “Identities and Roles: Race, Recognition, and Professional Responsibility.” Hutchinson queries whether, contra Wilkins’ more optimistic view, the “traditional professional model” may be irredeemable and it might be “preferable to throw out the baby with the bathwater.” (P. 206.) A pair of chapters—one by Tigran Eldred and another co-authored by Justine Rogers and Hugh Breakey—take on the field of behavioral legal ethics, exploring, respectively, Stanley Milgram’s Obedience to Authority and James Rest’s four component model (FCM). The final chapter of the book—a look at Richard Susskind’s End of Lawyers by Renee Knake Jefferson and Russell Pearce—examines the influence that technology has brought to bear on the legal profession and its regulation, noting that “these developments are only the beginning.” (P. 270.) Written in a pre-ChatGPT context, Jefferson and Pearce’s contribution is particularly prescient.
In Part II, the chapter authors continue to sketch paths forward and bridges to broader conversations in the discipline. Rogers’ and Breakey’s contribution offers a particularly interesting bridging moment insofar as they detail how a behavioral legal ethics framework can integrate, and, indeed, prioritize, legal ethics theory. Part II is also very interdisciplinary, including work not only from historians and sociologists of the legal profession but also from psychologists Milgram and Rest and futurist Richard Susskind. This interdisciplinarity helps to highlight the dynamism and breadth of legal ethics as a field.
To be sure, Leading Works doesn’t represent the totality of legal ethics. The book itself acknowledges that, while offering contributions from several countries, the collection is “still not that international” and there are “some plausible gaps among the texts that many would consider leading.” (P. 23.) Within less than 300 pages, however, the book does accomplish something remarkable—the reader is taken on an eclectic, yet coherent, journey into the past and future of legal ethics through the profiling of a large amount of diverse scholarship. In providing opportunities to reflect, Leading Works is timely—its publication comes on the heels of a great loss (the book is dedicated to Deborah Rhode, an unboundedly generous giant in the field, who passed in 2021) and also at a time worthy of great celebration (in 2024, the International Legal Ethics Conference, co-founded by Webb, had its 20th anniversary). The enthusiasm and promise for legal ethics found in the book are also opportune as we find ourselves in a time of alarming political and ecological instability. The challenges that the world, and by extension, the legal profession, is likely to face in the coming years are profound. Pushing forward on engaged, thoughtful scholarship in legal ethics is urgent.
Informative, inspiring and ambitious, Leading Works is a landmark work in legal ethics. The care and effort put in by Webb, as editor, and the chapter authors shines through. The wide-ranging and thought-provoking territory that the book covers make it an invaluable resource to both newcomers and established contributors to the field alike.
- Us Canadians claim a 1990s birthday! See, Adam Dodek, Canadian Legal Ethics: A Subject in Search of Scholarship, 50 U. Toronto L.J. 115 (2000).
- For those unfamiliar with the term, the Standard Conception “is constituted by three value claims: (a) to neutrality, meaning a commitment to moral detachment regarding the client’s objectives; (b) to partisanship – whereby lawyers are obligated to advocate for the client, to the limits of the law, and (c) non-accountability. The latter follows the former, so that, if the proper conditions of neutrality and partisanship are met, then lawyers are not morally accountable for the outcomes of their advocacy.” (P. 3.)
- In providing this framing, I have the same caveat that Webb and Nicola Hard provide in the book’s Introduction, “this is not to say that philosophical legal work…[has] been blind to questions of ethics in practice.” (P. 20.)
