Lawyer's Perspective - Draft 5.4

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    THE LAWYERS PERSPECTIVE

    THE GAP BETWEEN INDIVIDUAL DECISIONS ANDCOLLECTIVE CONSEQUENCES IN LEGAL ETHICS

    Andrew B. Ayers*

    (Forthcoming, JOURNAL OF THE LEGAL PROFESSION (2011))__________________________

    Legal ethicists often make arguments about what will happenif lawyers in general behave in a certain way. They sometimesassume that these arguments about the collective consequences of

    lawyers actions can help individual lawyers decide what they havemost reason to do. But collective consequences are not necessarilyreasons for individual lawyers to choose one action over another.

    To understand why arguments from collective consequencessometimes fail, it is important to understand two ways of looking atlegal ethics. The first is the policy-makers perspective. Policy-makers are necessarily concerned with collective consequences,because legal rules and social norms operate generally. Butindividual practitioners do not make decisions about what lawyerscollectively will do. And they often know that their individual choices

    will not have any real impact on collective goods. For example,society generally may depend on lawyers to make sure thatunpopular views are represented in court. But my individual decisionto turn away an unpopular client will not undermine that value.

    One solution to this problem is for lawyers to find intrinsicvalue in the kinds of actions which, in the aggregate, promote goodconsequences. Legal ethicists should aim to help lawyers understandhow it can be intrinsically valuable for them to act in certain wayseven when their individual choices will not affect collective goods.But intrinsic value can be understood only from the lawyers

    perspective.* Assistant Solicitor General, Office of the Solicitor General of New York.

    The views expressed here are the authors alone. Thanks to Rajit A. Dosanjh,Andrea Oser, Alice Woolley, Barbara D. Underwood, and especially James B.Ayers for comments, consultation, and help. Emily Ayers, Barbara andThomas Mitchell, James B. Ayers, Miriam Trementozzi, and Lauren K. Ayerswatched my children while I wrote this article. Comments gratefully receivedat: AndrewBAyers@gmail.com.

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    TABLE OF

    CONTENTS

    I. PERSPECTIVES AND REASONS IN LEGAL ETHICS .....................................5A. The Practitioner and the Policy-Maker .........................................5B. Which Perspective Should Legal Ethics Take? .............................8C. Perspectives as Reasons .................................................................15

    D. What is the Standard Conception of Legal Ethics a

    Conception Of?..............................................................................17E. Two Minor Puzzles, Solved............................................................20

    II. THE GAP BETWEENAGGREGATE CONSEQUENCES AND LAWYERSREASONS ..............................................................................................25

    A. Aggregate Consequences ................................................................26B. Indirect Strategies..........................................................................32C. The Gap ..........................................................................................37

    D. Can We Avoid the Gap? .................................................................46E. Should We Ignore the Gap? ...........................................................49

    III. HOW INTRINSICVALUES BRIDGE THE GAP ..........................................51A. How Intrinsic Value Works............................................................55

    1. The First Requirement: Good AggregateConsequences.........................................................................58

    2. The Second Requirement: Secession or Stability? ...............59B. Intrinsic Values in Legal Ethics....................................................66C. Where Should We Look for Stabilizing Values?............................73

    CONCLUSION ..............................................................................................79

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    [v. 5.4] THE LAWYERS PERSPECTIVE 3

    Trying to see the value of humanity from

    the third-person perspective is like trying to see

    the colours someone sees by cracking open his

    skull.

    Christine Korsgaard1

    The protagonists of Raymond Chandlers detective storiessometimes come across the dead or unconscious bodies of peoplewho owe them moneyusually people who had also tried to kill or

    cheat the detective earlier in the story. When the detective findsthe body, he digs out the mans wallet and removes some bills.Then he digs out his own wallet, and puts back into the othermans wallet the correct change.2 It is one of literatures nicerillustrations of the concept ofintrinsic valueof actions ordispositions whose value does not depend on their consequences.

    Chandlers detective has no illusion that his act of honestywill make his society a better place. His ethical action will nothelp prop up social values like honesty, dignity, and mutual trust,because Chandlers society has no such values; it is rotten to thecore. That is precisely why we admire Chandlers detective fordoing the right thing: not because society depends on his gooddeeds, but because nothing depends on them. He does them fortheir own sake.

    One way to understand the challenge facing writers onlegal ethics is this: we want to find a way of explaining or

    justifying the kind of actions that seem admirable in Chandler.

    1 CHRISTINE M.KORSGAARD, THE SOURCES OF NORMATIVITY124 (1996).

    2 For variants on this pattern, see RAYMOND CHANDLER,Pickup on NoonStreet, in COLLECTED STORIES 425, 459-460 (2002);Pearls are a Nuisance, inCOLLECTED STORIES 935, at 984. In another story, the detective knocksunconscious a man who had kidnapped and beaten him: I went through mypockets. The money was gone from my wallet. I went back to the man withthe white coat. He had too much money for his job. I took what I had startedwith . . . RAYMOND CHANDLER, FAREWELL MYLOVELY173 (1940, repr. 1992).There is more than one level of irony when the detective says, elsewhere, Im aTibetan monk, in my spare time. CHANDLER, FAREWELL,MYLOVELYat 130.

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    We want to identify the social values and collective goods thatlawyers promotejustice, freedom, democratic legitimacy, and so

    onbut we dont want lawyers to act ethically only when theythink it will promote those goods. We want to give lawyers areason to act well when acting well will have no goodconsequences. We want to tell lawyers what sorts of thingsshould be done for their own sake.

    There are other ways to understand the challenge facingwriters on legal ethics. Rather than asking what lawyers shoulddo in specific situations of practical choice, we could ask how thelaw of lawyering, and the institutions and practices governed byit, can best help our society achieve its collective goals. Legalethicists can imagine themselves not Chandlerian detectives, butas benevolent dictators trying to design the best possible society.We could approach legal ethics, in other words, as policy-makers.

    Both of these perspectives are important. But if legalethicists want to help lawyers understand why they should followethical norms even when no good consequences flow from theirchoices, they will have to take the lawyers perspective.

    This article proceeds in three parts. Part I explains thedifference between the policy-makers perspective and the

    practitioners perspective. It does so in terms ofpracticalreasoning. Perspectives can be usefully understood in terms ofwhat lawyers have reason to do. When we take the policy-makers perspective, we ask what lawyers collectively have mostreason to do. But when we take the practitioners perspective, weask what I individually have most reason to do.

    Part II explains why these different questions elicitimportantly different answers. Legal ethicists often argue thatlawyers should act in a certain way because society will benefit incertain ways if they do. In other words, they argue that a certain

    kind of lawyerly action, in the aggregate, will have desirableconsequences. Aggregate consequences give the policy-maker agood reason to adopt a particular policy. But from the perspectiveof an individual practitioner, it is often unlikely that a specificchoice will have any impact on the collective good in question.There is a gap, in other words, between the claim that Society

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    [v. 5.4] THE LAWYERS PERSPECTIVE 5

    will benefit if lawyers in general do X and the claim that I,today, should do X.

    Part III explores how the gap can be crossed. For cases inwhich the gap presents itself, it will be necessary to claim thatlawyers should choose actions that collectively bring goodconsequences even when their specific choice will not bring thoseconsequences. In other words, it will be necessary to claim thatthe lawyer should choose the action that is intrinsically goodgood without regard to its consequences.

    Adopting Bernard Williamss conception of intrinsic value,I argue that actions (or dispositions or feelings) can be regarded

    as intrinsically good on two conditions. The first is that theaction must have good aggregate consequences. The second isthat the value of the action must be stable in relation to theagents other values. The article ends with some ideas about whyDaniel Markovitss recent attempt to show the intrinsic value ofo