Monday, June 4, 2007

McGowan on Pearce on Lawyer Moralizing

Posted by Jeff Lipshaw

David McGowan has a post over at Legal Ethics Forum commenting on Russell Pearce's article, highlighted here by Alan a couple days ago, about the rise of "value-less" (or what Professor Pearce calls "Blue State") lawyering.  As I understand it, Professor Pearce's is a call for lawyers to shed the image of pure hired gun, and to take the lead in civil discourse about hotly debated issues.  David, in his usual straight-from-the-shoulder, unambiguous way, is skeptical whether lawyers as accommodationists versus lawyers as zealous advocates (I prefer that to hired guns) will be oil on troubled political waters. 

As I skimmed Professor Pearce's article and David's response, the issues struck me the same way Ronald Dworkin's casting of the issues about law and morality always strike me.  We find discussions of normative truths (particularly, in Dworkin's case, the claim that normative claims can be objectively true or false) in the most contentious issues facing us - abortion, genocide, capital punishment.  I think David is arguing that we are better off with the model of as lawyer as advocate in the marketplace of conflicting ideas.  I'm not sure I understand the either-or approach - perhaps accommodation is good when people begin to believe that the purity of their ideals justifies all means, including radical incivility.  I don't think Atticus Finch accommodated or compromised one bit.  But that wasn't the point I really wanted to make.

I've spent my career in far more quotidian circumstances, so I can't speak to being a lawyer in the face of the great issues.  I think lawyer as moral voice in the boardroom or at the negotiating table, or counseling a parent on how she will fashion her bequests in a will, or representing one spouse in a divorce is something to be valued, albeit, as David notes, with full disclosure that what is being offered is not legal advice, and that ultimately the client will decide the course of action.

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