In The Practice of Justice, William Simon addresses a widely recognized dilemma -- the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes -- with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests. If lawyers were to do what this reorientation of their basic identity would dictate -- that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever ends their clients happen to desire -- the moral quality of litigation would improve, as would the reputation of the bar, and likewise the justice of the law itself? But even more telling, for Simon, a system under which lawyers understood the "practice of law" to mean the practice of justice, rather than the zealous but amoral advocacy of clients' ends, would confer meaning and moral purpose in a life presently constructed so as to be dangerously devoid of both.
Lawyers' professional lives are presently experienced as amoral, Simon argues, because they are amoral, but not for the reason often given by the members of the retiring bar themselves: That ungentlemanly, unprofessional, market-driven, young lawyers have forgotten their manners in pursuit of the legal buck, and have made life nasty and brutish for everyone. Nor is the lawyer's amorality in any way tied to the nihilistic excrescences of contemporary theoretical understandings of law, as argued by some contemporary scholarship on the subject. Rather, according to Simon, the amorality of lawyering stems directly from the stated ideals and aspirations of the profession itself. The ideal of lawyering espoused by the profession, and memorialized by the various codes of ethics that govern it, strips the lawyer of responsibility for the moral quality of not only his clients' ends but also of his own actions taken on his clients' behalf -- and all on the dubious bet that by so doing, the system, in some mechanistic and formalistic manner, will almost miraculously crank out justice as the outcome.
The bet at the center of this "dominant view," as Simon dubs it, is not a good one -- justice is not going to be the miraculous product of a system in which none of the actors are required to pursue it. The lawyer knows this full well, furthermore, and as a consequence both the lawyer and society bear a loss -- society by being saddled with a profession that permits and seemingly requires that individual lawyers aggressively pursue injustice and the lawyer by being saddled with a life-long and deeply hurtful existential alienation from his work. To address the harm, we need, essentially, to reorient the profession by redefining its core moral identity. The lawyer should indeed zealously advocate, but he should zealously advocate for justice, not for the satisfaction of the preferences of his particular clientele.
Simon is not alone in this view, and he is not the first to address the apparent amorality of lawyering with an argument that what the bar must do is drastically restructure the lawyer's adversarial role, rather than explain it to a doubtful public who obstinately fail to appreciate its social value. In fact, an entire school of criticism of adversarial ethics -- a criticism which Simon, following convention, calls the "role morality" or sometimes the "personal morality" critique -- has, over the last twenty years or so, sown seeds of doubt regarding the dominant view. "Role morality" critics fault the traditional adversarial model for its tendency to limit the moral obligation of the lawyer to his client, and to minimize to almost nothing the ordinary moral obligations that the lawyer, but for his professional role, would owe to others.
51 Stan. L. Rev. 973 (1999)
Scholarly Commons Citation
West, Robin, "The Zealous Advocacy of Justice in a Less Than Ideal Legal World" (1999). Georgetown Law Faculty Publications and Other Works. Paper 662.