Abstract
“How can you represent those people?” actually poses two distinct questions: “how can anyone represent those people?” and “how can you, personally , represent those people?” The first question demands an objective response, a reasoned explanation for why representing someone accused of a crime is morally justified. The second question is more personal and subjective. It asks an individual lawyer to explain and justify her decision to spend her life doing the work of the criminal defender. The questions (and responses) are of course related, since a persuasive answer to the second question will almost certainly draw on the answers given to the first. Making the case for why the life I have lived is a good one, whether to myself or to others, normally involves explaining my choices in terms of values, principles, emotions, and experiences that have some universal resonance.
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Notes
Charles Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relations,” Yale Law Journal 85 (1976).
See ibid.; Monroe Freedman, Lawyers’ Ethics in an Adversary System (Indianapolis: Bobbs-Merill, 1975);
David Luban, Lawyers and Justice: An Ethical Study (Princeton: Princeton University Press, 1988);
David Luban, Legal Ethics and Human Dignity (New York: Cambridge University Press, 2007);
William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics (Cambridge, MA: Harvard University Press, 1998);
Monroe Freedman, “Personal Responsibility in a Professional System,” Catholic University Law Review 27 (1977–1978);
Monroe Freedman, “Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions,” Michigan Law Review 66 (1966);
William H. Simon, “Ethical Discretion in Lawyering,” Harvard Law Review 101 (1988): 1090;
Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues” Human Rights 5 (1975).
Monroe Freedman, “A Critique of Philosophizing about Legal Ethics,” Georgetown Journal of Legal Ethics 25 (2012): 101–102.
Godfrey Rupert Careless Davis, Magna Carta, rev. ed. (British Library, 1989), 7.
See Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 105.
Nigel Simmons, Law as a Moral Idea (Oxford: Oxford University Press, 2007), 66
That is, that comply with Fuller’s eight precepts of legality: that (1) the law must be a set of rules that must be (2) published, (3) prospective, (4) intelligible, (5) neither conflicting nor contradictory, (6) possible to comply with, (7) stable, and (8) congruent with the action of the state. Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969).
Alan Donagan identifies these as the central aspects of human dignity protected by the adversary system: accepting at least provisionally that a person’s beliefs are “defensibly reached and honestly held, even if mistaken” and that “no matter how untrustworthy somebody may have proved to be in the past” a story she tells now is given in good faith. Alan Donagan, “Justifying Legal Practice in the Adversary System,” in The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics, ed. David Luban (New Jersey: Rowman and Allenheld, 1984), 130.
Paul Butler, Let’s Get Free: A Hip-Hop Theory of Criminal Justice (New York: The New Press, 2009), 30.
Abbe Smith, “A Hip Hop Prosecutor Sings the Blues,” review of Let’s Get Free: A Hip-Hop Theory of Criminal Justice , by Paul Butler, Legal Ethics 14 (2011): 261–274.
Ferdinand von Schirach, Crime, trans. Carol Brown Janeway (New York: Alfred A Knopf, 2011), ix.
Allan Hutchinson, “Taking it Personally: Legal Ethics and Client Selection,” Legal Ethics 1 (1998): 178.
Bernard Williams, Moral Luck (Cambridge: Cambridge University Press, 1981), 18.
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© 2013 Abbe Smith and Monroe H. Freedman
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Woolley, A. (2013). Not Only in America. In: Smith, A., Freedman, M.H. (eds) How Can You Represent Those People?. Palgrave Macmillan, New York. https://doi.org/10.1057/9781137311955_15
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DOI: https://doi.org/10.1057/9781137311955_15
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