Power as a Factor in Lawyers' Ethical Deliberations

Susan Carle (American University Washington College of Law) proposes a normative standard for how relative client power should be taken into consideration in lawyers' ethical deliberations in Power as a Factor in Lawyers' Ethical Deliberation (SSRN) From the abstract:

A fundamental disagreement among legal ethics scholars concerns the difference between client-centered and justice-centered approaches to lawyers' ethical obligations. Advocates of client-centered approaches put lawyers' duty to the client first. Justice-centered theorists critique the elevation of the client's interests over other important concerns lawyers affect through the work they do on behalf of clients. Scholars who adopt justice-centered approaches argue that lawyers' ethical obligations should be analyzed with a paramount focus on achieving justice.

Legal ethicists often view these two approaches as inconsistent with each other, but I argue in this Article that they are not necessarily so. Building on the growing awareness of the need for context-specific legal ethics analysis, I argue that a key factor responsible for the disagreement between client- and justice-centered legal ethics scholars is their focus on different practice settings, where different ethics concerns have priority. Ethicists concerned about the immense power of corporate clients to do harm to fragile structures of public regulatory law focus on lawyers' duties to concern themselves with the underlying justice of their representations, while ethicists immersed in practice settings involving the representation of relatively powerless clients or interests, such as in criminal defense and poverty law practice, are adamant about the need for client-centeredness. I argue that we can make much better sense of the debate between client- and justice-centered ethicists if we appreciate the importance of context in setting ethics priorities.

The challenge then becomes identifying the factors that vary with practice setting and account for the different emphases of justice- and client-centered approaches. I suggest that a key factor that accounts for ethicists' varying views about the appropriate balance to be struck between client- and justice-centeredness is the relative power of the lawyer's client in relation to other interests affected by the representation.