Law and Nonlegal Norms in Government Lawyers\u27 Ethics: Discretion Meets Legitimacy

This Essay is about the role of unwritten norms in the ethical decisionmaking of government lawyers. Because the ethical obligations of lawyers, including government lawyers, are closely tied to the legal rights and obligations of clients, this analysis necessarily depends on understanding the relationship between written law and unwritten norms. As we all know, however, written law leaves gaps, ambiguities, and zones of unregulated discretion. Prosecutors in the United States, for example, have virtually unreviewable discretion to decide who to investigate and charge, what charges to bring, and whether to offer immunity in exchange for cooperation. No one has a legal entitlement not to be prosecuted, nor does anyone else—official or private citizen—have the power to compel a prosecutor to bring charges. The president possesses nearly unconstrained discretion to grant clemency to people convicted of criminal offenses. The impeachment power of Congress is constrained only by the Constitution’s requirement that the president be charged with certain enumerated offenses, including the open-ended phrase “high Crimes and Misdemeanors.” In other areas, a government official may possess the legal authority to do something but may nevertheless be criticized for exercising that authority contrary to standards that are not reducible to positive law. The question is, what standards, norms, or ethical values, if any, constrain the actions of lawyers advising government officials who exercise their power within discretionary unwritten areas of the law? In other words, is there a type of official discretion that is distinguishable from the exercise of raw power or whimsical decision-making, despite being unconstrained by positive law? If so, what is its relationship to positive law and its claim to legitimate authority

Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions

One who shared Hauerwas\u27s theological commitments might find it difficult to serve as a lawyer, given that the principles of legal ethics are grounded in the kind of political liberalism that Hauerwas finds repellent. For example, Stephen Pepper\u27s well known liberal defense of the standard conception of legal ethics pretty much pushes all of the buttons that set off Hauerwas. Pepper argues that while the law necessarily imposes restrictions on what we may do, but no one else is empowered to place restrictions on our autonomy. In a complex, highly legalistic society, however, citizens are necessarily required in some cases to seek advice from legally trained professionals to determine whether their proposed course of conduct may violate the law, or to employ mechanisms provided for by the legal system (such as contrasts, wills and trusts, and business entities) to achieve their goals. In providing this assistance, lawyers should not impose their own views about the morality of their clients’ conduct; rather, they should assist their clients in implementing their own plans, providing technical assistance but not moral suasion. As any reader of Hauerwas knows, this is an aspect of the modernist anomie he warns about, in which the autonomy to decide for oneself is exalted into the first principle of ethics, with the result that individuals are cut off from the resources they need (traditions, communities, stories) to construct meaningful lives for themselves. This kind of alienation can be cured only by associating oneself with a community -- for Hauerwas this is the church -- and sharing in the ongoing development of its history. Thus, one may ask whether a Christian lawyer can follow some version of the standard conception, at least on Hauerwas\u27s conception of Christian social ethics. With considerable hesitation, given the size and complexity of the corpus of Hauerwas\u27s scholarship, this paper attempts to offer an engaged Christian legal ethics in which the primary obligation of lawyers, acting in their professional capacity, is to respect the law. The linchpin of the argument is a critique of Hauerwas\u27s anti-liberalism. Hauerwas’s objections to liberalism do not hold against a theory of politics that begins with foundational assumptions other than deracinated individuals, and assumes that politics is something more than merely a technology to satisfy pre-existing wants. A different liberal theory might assume, by contrast, that people have reasons to live together in communities and work out a common approach to living together, while treating one another as equals. To the extent there are good theological grounds for treating one another as equals, this version of liberalism can be understood as a political response to God’s presence in the world. A consistent theme in Hauerwas’s work is the dependence of values upon communities, traditions, and stories. I do not see why part of a community’s tradition and self-understanding cannot be pluralism and the corresponding need for some means of dealing with one another despite empirical uncertainty and disagreement about morality. If a community’s history and traditions can be so characterized, then any duties a citizen, public official, or lawyer may have toward the community’s institutions, including the legal system, may be understood as a way of expressing respect for one’s fellow citizens

Philosophical Legal Ethics: An Affectionate History

The modern subject of theoretical legal ethics began in the 1970s. This brief history distinguishes two waves of theoretical writing on legal ethics. The “First Wave” connects the subject to moral philosophy and focuses on conflicts between ordinary morality and lawyers’ role morality, while the “Second Wave” focuses instead on the role legal representation plays in maintaining and fostering a pluralist democracy. We trace the emergence of the First Wave to the larger social movements of the 1960s and 1970s; in the conclusion, we speculate about possible directions for a Third Wave of theoretical legal ethics, based in behavioral ethics, virtue ethics, or fiduciary theory

Civil Obedience

Discussions of legal ethics generally assume that lawyers should deliberate straightforwardly on the basis of reasons to act or refrain from acting. This model of deliberation fails to account for the role of the law in resolving normative disagreement and coordinating social activity by people who do not share comprehensive ethical doctrines. The law represents a collective decision about what citizens ought to do, which replaces the reasons individuals would otherwise have to act. This Article contends that legal ethics ought to be understood as an aspect of this theory of the authority of law. On this account, lawyers have a duty not to reintroduce contested moral beliefs into the law by relying on them as a justification for action within the lawyer-client relationship. Lawyers should not act on the basis of their principled moral beliefs, but on the basis of legal directives. This does not mean that lawyers should blindly defer to their clients\u27 wishes, and it does not entail the familiar maxim of zealous advocacy within the bounds of the law. In many cases, this conception of legal ethics is closer to the traditional vision of the lawyers as guardians of the public purposes of the law. In the course of developing this argument, this Article uses case studies of lawyering dilemmas to illustrate how respect for the law makes a difference to legal ethics

Government Lawyers, Democracy, and the Rule of Law

Criticism of the “politicization” of the role of federal government lawyers has been intense in recent years, with the scandals over the hiring practices at the Department of Justice, and the advice given to the administration by lawyers at the Office of Legal Counsel, concerning various aspects of the post-9/11 national security environment. Unfortunately, many of these critiques do not hold up very well under scrutiny. We lack a coherent account of what it means to “politicize” the practice of interpreting and applying the law. This paper argues that our evaluative discourse about the ethics of government lawyers is inadequately theorized. In particular, terms that are popularly used as epithets, such as “partisan,” “politicized,” and “biased” lawyering, as well as terms of praise such as “independence” and “impartiality,” need to be given a philosophically robust foundation. This is more difficult than it seems, however, because we expect government lawyers to respect two very different democratic ideals - majoritarian self-rule and the rule of law. The most sophisticated attempts to elaborate a theory of government lawyers’ ethics have tended to overemphasize one of these ideals at the expense of the other. The aim of this paper, therefore, is to hold on to the distinction between faithful interpretation of the law, on the one hand, and improper politicization of the role of government lawyer, on the other, while acknowledging that considerations of democratic legitimacy require that lawyers respect the substantive content of the President’s non-neutral policy agenda

Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection

Monroe Freedman is well known as a proponent of the standard conception of legal ethics - that is, that a lawyer cannot be criticized in moral terms for actions taken in a representative capacity. Surprisingly, however, Freedman has argued that client selection is a decision for which a lawyer may be required to provide a justification in ordinary moral terms. This apparent inconsistency reveals a conceptual distinction in normative ethical theory, which is often blurred, between justifying a practice (in this case, the legal system or some specialized practice such as criminal defense) and justifying an action falling within the practice (here, either actions of a lawyer while representing a client or the decision to accept or decline the representation of a client). A practice as a whole must be justified on the basis of moral concepts, such as consequences, rights, and other values. Once a practice exists, however, particular moves within the practice are justified on the basis of the constitutive rules which make up the practice, not on the basis of underlying moral concepts. This is the practice conception of rules, defended by John Rawls in an influential 1955 paper. This paper makes two arguments - one metatheoretical and one a substantive argument within legal ethics. The methodological or metatheoretical argument is that professional ethics should proceed at one level of abstraction or another, but not equivocate back and forth between them. One can give systemic reasons why a lawyer ought to act on rules of a practice, and not on the basis of an all-things-considered moral evaluation of what she ought to do in the situation. Once committed to this style of reasoning, however, consistency demands that the frame of reference for the argument not suddenly be shifted to ordinary moral considerations. On the other hand, one might believe that clarity or some other consideration demands addressing questions of professional ethics exclusively in terms of first-order moral values. If one adopts that stance, however, it is impermissible to appeal to blanket permissions on the basis of the rules of the game. Every action must be justified on an all-things-considered basis. Subtle shifting between the two levels of justification creates unnecessary confusion, and may account for the occasionally frustrating nature of debates in legal ethics, where the participants seem to be talking past each other. Moreover, it is part of the general pattern of ethical justification in the public domain - including political and legal ethics - that the primary focus of evaluation is the institutional structure through which action occurs. This evaluative perspective, which is one rough distinction between political and moral philosophy, excludes from deliberation the full range of reasons that would ordinarily be relevant in practical reasoning. The client-selection debate, like any controversy within legal ethics, should therefore be resolved not as a matter of straightforwardly applying ordinary moral values, but in the way suggested by Rawls, with due attention given to the institutional setting of the action. The substantive argument within legal ethics is that the concept of agency does not require that a practice build in significant opportunities for the exercise of judgment on the basis of ordinary moral values. Reflective self-consciousness, which is constitutive of moral agency, is consistent with opting into a practice at a relatively high level of generality, and considering onself bound by the rules of the game. At the very least, whatever one may say in terms of moral agency, in support of an argument that a lawyer has moral discretion in client selection, can be said in support of an argument that a lawyer ought not to follow the standard conception while acting in a representative capacity. Client selection and representation stand or fall together, from the point of view of their effect on agency

Explanation in Legal Scholarship: The Inferential Structure of Doctrinal Analysis

This paper aims to understand the logic that underlies a familiar type of legal scholarship, in which the author purports to explain or render intelligible some legal doctrine or area of law in terms of an end or rationale. Loosely speaking, the argument is that some doctrine is all about some end. This form of argument is familiar but undertheorized, so this paper draws from the philosophy of science, particularly the notion of inference to the best explanation (IBE), to clarify the underlying rhetorical strategy of doctrinal legal scholarship. One way of making IBE arguments with reference to legal doctrine might be to employ Dworkin\u27s method of seeking coherence with a political community\u27s moral principles. Many legal scholars deny that they are methodologically indebted to Dworkin, but the burden may be on them to articulate a non-moral sense in which their proposed explanation is the best one. Criteria from IBE argments in the natural sciences, such as simplicity, consilience, fruitfulness, and even explanatory loveliness may therefore play a role in evaluating theoretical legal arguments

Busting the Professional Trust: A Comment on William Simon’s Ladd Lecture

It is truly an honor to be asked to Comment on the work of William Simon, one of the scholars who has done the most to contribute to the reputation of legal ethics as a field with intellectual rigor and depth, as well as one with significant implications for legal theory generally. The power of his critical faculties is unmatched: the platitudes offered by the organized bar in defense of the dominant view of legal ethics lie in tatters after the sustained assault in the first three chapters of The Practice of Justice. In fact, it can be difficult to find objections to the dominant view that Simon has not already articulated more forcefully. But his project is not merely critical, as his construction of the alternative contextual view of ethics shows. His Mason Ladd Lecture is a welcome extension of the contextual view, moving from the micro-evaluation of the ethics of individual lawyers into the macro level of institutional analysis and questions of regulatory regime design. Section I of this Comment is a brief review of this proposal. Simon\u27s work has been a tremendous influence on my own thinking about legal ethics, so I have good reason to fear the ignominious fate of commentators who end up agreeing with the subject of their evaluation. Indeed there is a great deal in this Lecture to agree with. Some of his suggestions for reform are so far-reaching, however, that one is bound to have a few reservations and questions. Section II of this Comment contains some questions about the details of using a market-based approach and a diversity of ethical norms to regulate lawyers. Simon has anticipated many of these objections, none of which are likely fatal to his project, but some of which seem to be a bit more problematic than he acknowledges. For example, even if a sufficient number of clients desire to hire high commitment lawyers, the transaction costs involved in matching up high commitment lawyers and clients may be sufficiently high to thwart the operation of the reputational market Simon envisions. Section III takes issue with the argument that nonlegal methods of regulation can avoid the corruption of regulation by self-interested professionals. Although nonlegal regulation offers many advantages over a formal scheme of legally enforceable rules, it is no less susceptible to capture by powerful actors than a system of legal regulation