W. Bradley Wendel, Lawyers and Fidelity to Law (Princeton University Press, 2010).
In the 1970s and 80s, a significant debate emerged around the role played by lawyers. Based on the American Bar Association model code, associated documents and case-law, several moral philosophers, and a few lawyers, characterised legal representation as comprising two overarching principles.1 The principle of neutrality, they said, demanded that lawyers represent clients or causes they may disagree with morally. The principle of partisanship demanded that they fulfil their client’s wishes to the limits of the law. Provided they fulfil these tasks faithfully, they were morally absolved on the grounds that the role they perform is itself good. This constituted a third principle: non-accountability.
Numerous critics of this ‘standard conception’ of the lawyer’s role found it morally indefensible. Despite some spirited justifications2 and more nuanced rejoinders,3 the balance of debate moved on to the consequences of such a conclusion and the steps that should follow. At one end of the spectrum lay measures such as encouraging lawyers to select clients on moral grounds. The middle ground was occupied by proposals that lawyers have discretion to ignore ethical norms producing immoral outcomes. More radical solutions involved abandoning the adversarial system or the de-professionalization of lawyers. Wendel is one of many scholars who, often in book form, have recently revisited the issue of the standard conception of the lawyer’s role.4
The difficulty in justifying lawyers’ peculiar role morality was problematic for reasons other than the apocalyptic implications. First, lawyers are potentially significant figures in a society where the rule of law is constantly cited as a fundamental goal and organising principle. This is a time of worldwide changes to legal services markets. Lack of clarity could lead to changes in the roles of lawyers with dangerous consequences for the enforcement of rights. Second, in a society of plural values we recognise intuitively the fundamental importance of a neutral disposition towards those needing representation, coupled, on occasion, with intense zeal. Any corrective to the ethics of lawyers that resulted in these features being diminished or lost could negatively impact the protection of rights. Third, the question mark over the subject of legal ethics is particularly unfortunate at a time when, worldwide, legal professions are deciding that the subject is worthy of degree level study. The message that lawyers are slaves to clients’ wishes is not one that anyone concerned with the integrity of professional values wants to convey.
Assuming a continuation of the conventional role of lawyers, a new rationale is called for.
These efforts are generally commendable, striving to make the standard conception more palatable while accepting its underlying rationale as the autonomy of clients. Wendel also accepts the premise that the standard conception describes accurately the lawyer’s role, but seeks a new political-philosophical basis. His argument draws inspiration from the proposition that it is not fidelity to clients that is the underlying justification of the lawyer’s role, but fidelity to law itself. It is noticeable that, by fidelity to law, Wendel envisages fidelity to the kind of formal legality which is the dominant version of the rule of law in Western democracies. This conception of the rule of law does not explicitly equate with substantive justice, but with law that is general, prospective, clear and certain.5Therefore, the argument does not envisage lawyers exercising discretion to reach outcomes acceptable to ordinary morality. What is attempted is a justification of lawyers’ role morality rooted in the social and political significance of the role in the legal system of a liberal state.
The question that Wendel’s book strives to answer is ‘why the legal system deserves the allegiance of citizens, so that lawyers will be seen to play a justified role in society’. (P. 7). In answering this question, Wendell assumes a ‘reasonably well-functioning legal system’ which lawyers serve well by upholding its values. Within such a system, lawyers’ ethical duty is performed by providing that which clients are entitled to in law, rather than by delivering every advantage that the law allows. Wendel thereby provides a rational basis for limiting what lawyers may legitimately do for clients and, redraws the duty of loyalty. This suggests an ethically sound foundation for representation, particularly contrasted with the partisan obligation to deliver whatever client’s desire, within the limits of law.
Wendel’s position regarding neutrality is less consistent with the general argument. When it comes to client selection he conceives a moral permission to represent unpopular clients rather than a moral obligation. He would predicate selection decisions on legal rather than moral values, although the examples given suggest that, in most cases, arguments could be found for whatever outcome is preferred. To my mind, the logic of a system based on fidelity to law, and hence formal legality, in a society of plural values, is that all citizens should have representation in principle. This suggests that neutrality in client selection should be a governing principle.
Wendel’s conception of a lawyer’s role tackles some troubling aspects of the standard conception of the lawyers’ role while, in practical terms, avoiding the risks of other alternatives. A considerable strength is that it links the legal role more explicitly to the underlying purposes of the legal system in the pursuit of justice. The idea of fidelity to law resonates with renewed focus on the rule of law and the issue of determinacy of law. This, though, is the kind of justice reached through formal legality, rather than its substantive cousin. In the eyes of many, this will be a weakness of this re-imagining, but that, as they say, is a problem for another day.6 For the present, Wendel has shifted the theoretical foundation of legal ethics to represent ‘… a higher duty incumbent upon occupants of a professional role’. (P. 50).
- See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669 (1978); 66, William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 29 Wis. L. Rev. (1978); David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988).
- Monroe H. Freedman, Professional Responsibility of the Criminal Defence Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469 (1966); Charles Friedt, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L. J. 1060 (1976); Stephen L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 11 Law & Soc. Inquiry 613 (1986).
- Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669 (1978); David Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988).
- See, e.g., Tim Dare, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Ashgate Publishing Ltd., 2009); Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton University Press, 2009).
- See, e.g., Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004).
- See, e.g., some very important responses to Wendel from key figures in the original debate on the “standard conception” in 90 Tex. L. Rev. 69 (2012).