Legal Ethics and the Rule of Law
The legal profession is an institution that promotes the cluster of values identified by Anglo-American philosophers with the ideal of the rule of law. This in any event is one perspective on the morality of the lawyer’s role. It challenges the long-standing assumption by philosophers that actions within a professional role must be given the kind of justification that could be offered by moral agents not occupying a professional role (Dare 2009). The qualities that make a legal system worth having, and which distinguish legality from other modes of governance, are worth promoting (Waldron 2008). To the extent lawyers contribute to the realization of the ends promoted by the rule of law, their actions have prima facie moral value. The rule of law thus provides the basis for a role-differentiated morality for lawyers.
Role-Differentiated Morality and the Value of Legality
Lawyers do things in the course of representing clients that appear to violate principles of ordinary morality, such as honesty and respect for human dignity. Criminal defense advocates may represent clients they reasonably believe to be guilty of the charged offense, corporate counsel may keep secrets that, if disclosed, could prevent harm, and lawyers may lend their assistance to client projects that promote social injustice, such as providing advice on how to minimize taxes lawfully. Lawyers remain moral agents even when acting within a professional role and are therefore subject to the demands that morality makes on all persons. The role also makes normative demands, however, and lawyers must somehow reconcile these competing sources of obligation (Applbaum 1999). The usual approach to this reconciliation is to rely on a common moral value supposedly promoted by the professional role, such as trust, loyalty, or autonomy (Fried 1976). Even when the justification is successful, however, the argument from common moral values overlooks the distinctive political role of law and the legal profession. A signal characteristic of many modern societies is ethical pluralism, that is, the existence of a diverse range of comprehensive doctrines about human goods, values, ideals, and virtues. As a result, reasonable disagreement is a fact of life in many political communities (Rawls 1993). The task of governing a pluralistic society characterized by reasonable disagreement and conflict presents distinctive problems, and the various political and institutional arrangements for governing societies have moral features of their own (Luban 1997, pp. 117–120). It follows that the moral permissions and demands associated with the lawyer’s role should have something to do with the moral properties of the legal system upon which the role depends.
The rule of law, or the value of legality, is a contested concept. It is sometimes used loosely to refer a good government under law, such as one characterized by the existence of strong property rights and investor protections, which may correlate with the size of a country’s capital markets (La Porta et al. 1997), or protection for human dignity and human rights (Bingham 2007). The rule of law may also refer to formal features that a legal system ought to have, such as laws that are publicly promulgated, clear and understandable, consistent, openly and impartially administered, or at the very least capable of being obeyed (Fuller 1964; Raz 1979). In the British Commonwealth, it is often associated with Dicey’s critique of official discretion. All of these conceptions of the rule of law share an underlying feature which is relevant to the moral value of legality. Governing a society by law is arguably different from ruling by unconstrained fiat. Vindicating this argument, however, requires articulating an underlying theory of law (Marmor 2004, p. 4). On a crude, Austinian command-sanction theory of law, any command issued by the sovereign is a law, regardless of its form, consistency with other commands, whether the command is binding on the sovereign, and the like. Modern theories of law, such as Kelsen’s and Hart’s, which emphasize the systematicity, generality, and publicity of law, suggest a conception of the rule of law as responsive to the needs of autonomous, self-governing citizens (Waldron 2008). Governance through a system of reasoned articulations of general norms manifests an attitude of respect toward the subjects of law as agents and bearers of dignity (Woolley 2014, p. 767). The positivity of law – that is, its deliberate creation and openness to change by a human community – enables the use of law as a means of governance in a society in which citizens disagree about what morality requires. (Even classical natural law theorists such as Aquinas emphasize the need for human governors to specify, or “determine,” the general demands of natural law as they apply to the problems faced by particular communities (Aquinas 2002))
Lawyers are not formally legal officials, at least in common law countries which emphasize the independence of the bar from the government. But lawyers may be said to “mediate” between citizens and the state by interpreting and applying the general requirements of the law to the specific situations encountered by clients. For example, a law stated in general terms may require corporate directors to exercise duties of care and loyalty when evaluating an offer to acquire the corporation. Do these duties require directors to attempt to negotiate with third parties in an effort to obtain a better sale price for the corporation? The corporation and its directors need expert assistance to determine what they are required by law to do, and this is precisely what lawyers provide. On the so-called standard conception of legal ethics, lawyers must provide competent advice about the requirements of law, untainted by the lawyer’s own beliefs about the morality of the client’s objectives and the means used to accomplish them. Because laws are established in the name of the whole society (Waldron 2008, p. 20), lawyers are professionally obligated to ascertain the content of the community’s laws, not to base their advice on moral principles that may be controversial in a pluralistic society (Wendel 2010).
Just and Unjust Laws
Of course, the mere fact that something is a law does not guarantee that it is consistent with the requirements of morality. Some natural law theorists would maintain that an unjust law is not a law at all (lex injusta non est lex), but others would criticize it as a law, albeit a defective one (Finnis 1980; Murphy 2006). Legal positivists, on the other hand, are united in insisting on a conceptual distinction between the existence of a law and the evaluation of its content as just or unjust (Hart 1958). On the assumption that a law may be unjust but still be a law, lawyers may encounter an ethical dilemma when faced with a client seeking to obtain an advantage under an unjust law, or a client using an otherwise just law to accomplish an unjust end. Consider a much-discussed example of a client who wishes to write a will disinheriting his son for his antiwar activities (Wasserstrom 1975, p. 7). The man’s lawyer may believe, with justification, that the man’s intended action would be unjust – petty, mean-spirited, and likely to be detrimental to one of the most important relationships in his life. The lawyer is free to counsel his client to change his mind, but if the client insists on a provision in his will disinheriting his son, it is clear that that law permits him to include it. If the lawyer does not resign from the representation (and some lawyers would at this point), the ethical issue is joined. Is the lawyer subject to well-founded moral criticism for assisting the client in an action that is legally permitted but unjust?
Philosophers who emphasize the connection between the rule of law and legal ethics observe that the law creates rights and duties to permit citizens of a political community to live together and cooperate on common projects even though they may have many disagreements about empirical or normative matters. Whether something is just or unjust is likely to be a matter of contention in a pluralist society. The rights and duties established by law may be used for good or for ill, but they go a long way toward securing community among people who otherwise would be divided by reasonable but conflicting moral beliefs. Clients need lawyers to understand what is required of them and permitted by law. If lawyers refused to provide assistance to a client on the ground of the lawyer’s belief that the client’s end was unjust, the efficacy of the law as a strategy for building a relatively stable political community would be undermined (Dare 2009, p. 74). While one might understand a lawyer’s reluctance to assist a client in doing something that is lawful but morally distasteful, the moral blame should fall on the client. The lawyer’s action is best described not as providing assistance to the commission of an unjust act, but in helping to administer a political institution whose goal is to provide a framework for co-existence and interaction among people who disagree about the requirements of morality.
An account of the ethics of the lawyer’s role centered on the value of legality supports normative criticism of lawyers who abuse or manipulate the law in the service of their clients’ ends. Lawyers should not interfere with their clients’ access to the rights secured to them by the law, but neither should they use their training and expertise to thwart a legal prohibition on a client’s actions. Much of the criticism of lawyers who represent corporations and wealthy individuals centers on their use of the law to evade taxation, shelter assets from creditors, or otherwise get around the limitations that apply to ordinary citizens who cannot afford expensive lawyers. Some of the means employed by lawyers are entirely lawful, in which case the proper target of criticism is the law that permits the conduct in question. In some instances, however, lawyers are able to manipulate legal forms and take advantage of complexity and the high cost of enforcement by the state or private parties to establish a de facto power on the part of their clients to evade the requirements of law. This type of abuse should be criticized in the strongest terms.
A Duty to Obey the Law?
This approach to the ethics of the lawyer’s professional role takes no position on whether there is a moral obligation to obey the law, whether conclusive or merely prima facie (Simmons 1979). The conception of the rule of law that focuses on governing through general, public norms as a way of respecting the dignity of the law’s subjects is a substantive moral thesis about the good secured by a legal system (Waldron 2008, p. 41). Thinking about the law in this way may support associative theories of obligation for citizens, grounded in jointly manifested attitudes of commitment to a common project (Gilbert 1993). But it need not, and issues related to legal obligation and obedience for citizens can be set aside when thinking about the role-based ethical obligations of lawyers. Some roles create obligations that are more demanding than those that exist as a matter of background morality, but these heightened obligations may have limited scope. Parents, for example, are required to provide care and support for their children far beyond that which is owed to persons generally, and judges have duties of impartiality that require them to set aside presuppositions and biases that might affect their views of the parties. These role-specific obligations follow from the end that a natural or social role serves. If it is the case that the role of lawyer serves the end of providing access to information and expertise about the law, so that clients can plan and act with reference to a socially established scheme of rights and duties, then lawyers have an obligation to promote the good working order of the legal system. They do so by advising their clients competently and candidly about the content of applicable laws, not interfering with their clients’ rights under the law based on a moral objection to the client’s ends, and refraining from manipulating or evading the law.
Philosophical legal ethics has generally sought to derive principles of right action for lawyers directly from ordinary moral values such as trust, loyalty, and dignity. This derivation either ignores or under-emphasizes the institutional context in which lawyers act for clients. The rights and duties that form the basis for their advice to clients are established by political processes which themselves aim to promote social goods such as stability and solidarity. People remain moral agents even when acting in social roles. However, the moral evaluation of official and quasi-official actors like lawyers should take into account the purpose for which a role is constituted. Even legal positivists concede that the law has as a moral aim the end of enabling cooperation among people who otherwise would disagree about matters such as rights and justice (Shapiro 2010). If the law realizes this moral aim, then the professional activities of lawyers partake of this moral value. Just as Rawls aimed to defend a freestanding political conception of justice that did not depend on any particular religion, tradition, or any other comprehensive moral doctrine (Rawls 1993), it may be possible to construct a freestanding political system of ethical principles for lawyers that is grounded in considerations related to the value of legality.
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