Monday, April 29, 2024

The New Legal Ethics by W. Bradley Wendel

Here is a thought-provoking article on legal ethics.  No matter how you view the article, it will make you think about the relationship between personal values and institutional principles in legal ethics.  There are no easy answers.

The New Legal Ethics by W. Bradley Wendel.

Here is the abstract:

In stark contrast to the traditional neutral partisanship or zealous advocacy model of legal ethics, a new approach has emerged in recent years, particularly among law students, recent graduates, and lawyers who identify as politically progressive. The new legal ethics, as I refer to it, has a number of characteristics, including (1) a very strong conception of complicity for involvement in the wrongdoing of others, even if the causal contribution it makes to the wrong is insubstantial; (2) profound mistrust of institutions, systems, procedures, and chains of command; and (3) comfort with the exercise of significant discretionary power by lawyers to make moral decisions. While not entirely new – in fact, Duncan Kennedy urged law school graduates in 1986 not to represent clients who are “trying to do something terrible, and wants to use your lawyer skills to do harm” – the new legal ethics appears to be regarded by younger lawyers as the mainstream position, not a radical critique.

This paper is the published version of the 2024 Howard Lichtenstein Distinguished Professorship in Legal Ethics Lecture at Hofstra Law School. It considers the normative core of the new legal ethics, which is the strong conception of complicity. The analysis proceeds via consideration of Christopher Kutz’s Complicity Principle, which separates the evaluation of complicity from the causal contribution of an action to the harm, to the description of actions in terms of the actor’s intentions. The assessment of moral blameworthiness based on the actor’s intentions is complicated by the multiple descriptions that can be offered of the act of representing a controversial client seeking to commit allegedly wrongful acts. To make this analysis more concrete, the paper considers two case studies: One is a lawyer who violated the rules of professional conduct in order to avoid what she regarded as complicity in the client’s wrongdoing. The second is persistent public criticism of a lawyer whose actions, while consistent with the rules, are deemed by progressive critics to amount to complicity in wrongdoing.

I end up with a position inspired by Alasdair MacIntyre and Bernard Williams: A lawyer should aim at a unified life narrative that takes into account both the personal and professional dimensions of actions and intentions. In some cases a coherent narrative will include a sense of reluctance or regret arising from the moral costs of professional permissible actions. This is an implication of the traditional neutral partisanship view, properly understood. It is messier than the new legal ethics but, I believe, better accounts for the normative demands of both the lawyer’s professional role and the moral agency of actors within an institutional role.

(Scott Fruehwald)

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