Misplaced Fidelity

David Luban, Georgetown University Law Center


This paper has been updated and posted elsewhere within the Georgetown Law Faculty Publications series in the Scholarly Commons. It is currently available at http://scholarship.law.georgetown.edu/facpub/866/

Review of Lawyers and Fidelity to Law by W. Bradley Wendel (2010).

The contemporary subject of theoretical legal ethics began with a handful of papers in the 1970s and early 1980s, mostly by moral philosophers troubled by the apparent dissonance between impartial morality and the one-sided partisanship of the lawyer’s role. The so-called standard conception of the lawyer’s role, captured in the mantra of zealous advocacy, combines three elements: partisanship, neutrality, and non-accountability. Partisanship requires lawyers to pursue lawful client ends by any lawful means necessary, regardless of the morality of the ends or the damage the means might inflict on the innocent. Neutrality means that lawyers must not exercise moral judgment over their clients’ lawful ends or the lawful means used to pursue them. And lawyers cannot be held morally accountable for acting on their clients’ behalf. The central question raised by the standard conception is why lawyers get a free pass from morality in a pastime that is far from victimless. As Richard Wasserstrom and Gerald Postema observed, the lawyer does her work through speech and persuasion. Her moral faculties are fully engaged in a way that seems uniquely hard to square with non-accountability.

The general issue animating most of this work is the problem of role morality: how can it be that her professional role might require a lawyer to do things that would be morally forbidden to a non-lawyer? Charles Fried asked, “Can a good lawyer be a good person?” And Wasserstrom wondered whether “the lawyer-client relationship renders the lawyer at best systematically amoral and at worst more than occasionally immoral.” To the response that the adversary system requires lawyers to play a partisan role, philosophers scrutinized the “adversary system excuse” and found it wanting. Others defended both the standard conception and the adversary system. The critics were less concrete in identifying alternatives to what Wasserstrom called the “simplified moral world” of the standard conception. Postema re-conceived the lawyer’s role as a “recourse role,” meaning that it has built into it the recourse of breaking role when morality requires it. Wasserstrom and William H. Simon called for deprofessionalization (although Simon eventually developed a different approach). The position of the author of this review replaces the standard conception with a stance that he labeled “moral activism,” in which lawyers must act as they would if the adversary system excuse was unavailable to them.