Tuesday, January 23, 2007
Posted by Alan Childress
Bradley Wendel (Cornell) has posted on SSRN--Law & Soc'y: Legal Prof. his article, "Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection," which will also appear in a Hofstra Law Review salute to Monore Freedman. Here is the abstract:
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.
[UPDATE: Brad Wendel, in this new post at LegalEthicsForum, applies his analysis of client identity and selection to the particular recent problem of the DOD's Cully Stimson's comments on representing "terrorists."]