Lawyer's Perspective - Draft 5.4

  • View

  • Download

Embed Size (px)

Text of Lawyer's Perspective - Draft 5.4

  • 8/2/2019 Lawyer's Perspective - Draft 5.4




    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: [email protected]

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    2 AYERS [11-Aug-11]



    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

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    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


    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.


    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.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    4 AYERS [11-Aug-11]

    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

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    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 ofone lawyerly virtue is unsuccessful, and why other approachesmight be more promising.


    A. The Practitioner and the Policy-Maker

    If we take the policy-makers perspective, we can approachlegal ethics much in the way we approach other legal subjects. Atheory of legal ethics constructed from this perspective would bemuch like theories of constitutional law or contract lawtheoriesthat aim to illuminate the underlying structure and purposes of abody of law and the social institutions it regulates. From thisperspective, the subject matter of legal ethics is a specific body of

    law and the social institutions that it regulates, including lawfirms and other organizations within which lawyers practice,attorney/client relationships, and the adversary system ingeneral.

    Policy-makers have reason to be concerned both with lawand with social norms. Policy-maker as I use the term means alawmaker who writes or re-writes the lawyering law itself or a

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    6 AYERS [11-Aug-11]

    judge who interprets it; but it also includes bar associationleaders concerned with the ethical character of the profession.

    Policy-makers often attempt to influence lawyers behaviorthrough law, but they sometimes try to influence lawyersbehavior through the social norms and values that influencelawyers behavior. Those norms are non-hierarchical in nature;we do not empower legislators or committees to determine what ismorally admirable. So the term policy-maker should not beunderstood to imply any formal authority. It includes anyonewho organizes a conference on civility, or writes a book designedto persuade lawyers that it is admirable to behave in a certainway.3 It is common for scholarswho frequently make claims

    about which legal rules are best and which social norms arejustifiedto take the policy-makers perspective.

    A different perspective is the perspective of the practicinglawyer.4 Practicing lawyers live under the rules and norms andwithin the institutions designed by policy-makers. For thepracticing lawyer, the central problem of legal ethics is not howthe system should be designed, but how to act within the systemas she encounters it. From the practitioners perspective, atheory of legal ethics is useful insofar as it helps give guidanceabout practical decisions.

    Practicing lawyers are necessarily concerned about the lawof lawyering. It governs their behavior. But they face specificchoices, relating to that body of law, that are different from thepolicy-makers choices. They must decide, for example, whetherto comply with the law or disobey it in a particular situation.Practitioners must also decide how to act when the law leaves achoice entirely to her discretion.

    Many legal ethics scholars write about the lawyers role. Itcan be seen from either perspective. But the questions that the

    3 As Robert Ellickson notes, it is difficult for individuals, or even groups, tomanipulate social norms intentionally. ROBERT C.ELLICKSON,ORDER WITHOUTLAW:HOW NEIGHBORS SETTLE DISPUTES 152-53 (1991).

    4 Murray Schwartz noted the difference between what he called thepersonal and societal perspectives. Murray J. Schwartz, The Zeal of the Civil

    Advocate, in THE GOOD LAWYER:LAWYERSROLES AND LAWYERSETHICS 150,152 (David Luban ed. 1984).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    practitioner and the policy-maker have reason to ask about thatrole are different. The policy-maker asks what social norms

    should apply to a given role in general. The practitioner can alsoask whether it makes sense for her on specific occasions to stepinto a certain role, and, if so, how far. A father can ask whetherhe should be fatherly today, and a lawyer can ask whether itmakes sense to be lawyerly in specific situations.

    The policy-makers perspective focuses on the content of thelawyers role itself, rather than on the choices facing individuallawyers who inhabit that role. It focuses on the hat that lawyerswear, rather than the individuals who wear it. When writersdiscuss the lawyers role from the systems perspective, they seethe role in the abstract, as one element of a complex socialinstitution. Much as we might distinguish the experiences anddecisions of any specific American president from the institutionof the presidency, we can distinguish the lawyers role, as thesetheories understand it, from the specific experiences anddecisions faced by individual lawyers who act in that role. Just asany American president may have interests that diverge from theinterests of the office, an American lawyer may have intereststhat diverge from the interests of the lawyers role.

    Practitioners and policy-makers need different things fromlegal ethicists. Policy-makers need theories of legal ethicsifindeed they doto help them choose the best rules, design thebest institutions, and influence social norms in ways that willhelp society realize its goals. The policy-maker might seek helpfrom legal ethicists with pursuing goals like advancing social

    justice, increasing public trust in the profession, lowering levels ofalcoholism and depression among lawyers, or finding the rightmetaphors (hired gun or officer of the court?) to express the socialexpectations to which lawyers should be subject.

    Practitioners, on the other hand, need theories of legalethicsif indeed they doto help them decide how to act insituations of practical choice. From the practitioners perspective,the purpose of theoretical scholarship in legal ethics is actionguidance. The practitioner might seek help from legal ethicists inpursuing goals like serving her client well while being honest

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    8 AYERS [11-Aug-11]

    with the court, avoiding a conflict of interests, or preserving herself-respect.

    One of the distinctive features of the policy-makersperspective is its generality. Policy-makers consider whatlawyers in general should do; the practitioner considers what todo in a specific situation. This means that the practitioner canchoose to do something she would not encourage others to do inthe same situation. She can also choose to act in a way that isinconsistent with the way she usually acts in comparablesituations. Whether either of these would be good choices issometimes a difficult question; the point here is that it is aquestion that arises for the practitioner, but not usually for thepolicy-maker.

    Of course, policy-makers can make exceptions to policies.But an exception to a rule is usually an exception for anyone whofits its criteria; exceptions to rules are themselves general rules.It is true that policy-makers sometimes act in truly non-generalways. Judges sometimes fail to follow the precedents thatgenerally apply to situations like the one before them.Legislatures sometimes pass private bills that apply to only oneperson. But when policy-makers act in these non-general ways,

    they raise questions about whether they are making good policy,andon some accountswhether they are making policy at all.5The questions that arise about the generality or generalizabilityof individual choices are very different from the questions aboutthe generality of policy-makers choices, as Part II of this articlewill explain.

    B. Which Perspective Should Legal Ethics Take?

    Legal ethicists have tried to construct theories that areuseful both to practicing lawyers and to policy-makers. Forexample, scholars who focus on legal doctrineon the law of

    5See LON L.FULLER, THE MORALITY OF LAW 46 (rev. ed 1969) (The firstdesideratum for subjecting human conduct to the governance of rules is anobvious one: there must be rules. This may be stated as the requirement ofgenerality.).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    lawyeringtake the practitioners perspective when they offeradvice on how to comply with the law. On the other hand, they

    take the policy-makers perspective when they debate whetherexisting doctrines should be modified.

    In legal ethics scholarship that focuses on more theoreticalquestionswhat is sometimes called philosophical legalethicsmost writers aim to produce theoretical accounts of thevalues that support the legal rules and social norms governinglawyers conduct. These theoretical accounts can be understoodas serving either or both of two purposes. First, they aim to helppracticing lawyers decide how to act and which attitudes to take.Second, they aim to help policy-makers understand how best tostructure the rules and social institutions that affect lawyersbehavior.

    Many of the principles offered by legal ethics theorists areframed as principles that aim to guide individual lawyers in theirpractical decision-making. William Simon, for example, claimsthat [l]awyers should take those actions that, considering therelevant circumstances of the case, seem likely to promote

    justice.6 Simon wants individual lawyers to apply this principlein their decision-making. In that sense, he is taking the

    practitioners perspective. But he also makes claims about theinstitutional structures that would support lawyers who followedhis maxim.7 In that sense, he is also taking the policy-makersperspective.

    Some writers explicitly argue for the importance of oneperspective or the other. Alice Woolley argues that the policy-makers perspectivewhich she usefully calls the societalperspectiveis the only perspective legal ethicists should take.8Woolley argues that legal ethicists should treat their subject as afield of doctrinal analysis; their project should be to expound and


    7 Simon discusses, for example, the possibility of a restatement oflawyering law that would clarify what promotes justice in many recurringsituations, id. at 197-198, and the possibility of lawyers making explicit intheir retainer agreements that they practice under his maxim, id. at 210-212.

    8 Alice Woolley, If Philosophical Legal Ethics Is the Answer, What is theQuestion?, 60 U.TORONTO L.J. 983, 997 (2010).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    10 AYERS [11-Aug-11]

    criticize lawyering law in the same way that legal scholars inother areas expound and criticize other kinds of substantive law.9

    For Woolley, the question framing the analysis should be notCan a good lawyer be a good person? but rather Can a societywith good lawyers be a good society?10

    Woolley thinks that legal ethicists should not take thelawyers perspective because she sees that perspective as a self-interested one. Legal ethics from the lawyers perspective, as sheunderstands it, involves a phenomenological investigation of theethical experience of the lawyers life.11 It is concerned with thelawyers identification of her life as ethical or unethical, as welllived or the converse.12 This, for Woolley, is not only anuninteresting focus but a troubling one.

    Woolley argues that the challenge to a lawyers ability tolead a well-lived life exists independently of the morality (orimmorality) of the lawyers role and should not be what motivatesour inquiry into the morality of the lawyers role nor affect theconclusions that follow from that inquiry.13 Legal ethics theoryhas focused too much on the ethical experience of the lawyerslife and should focus, instead, on what, in a free and democraticsociety, the role of the lawyer should be.14 Legal ethicists should

    not give priority to the point of view of the individual lawyersconscience, Woolley argues, because that would make thelawyer an especial object of social concern, greater than that ofothers, and doing so seems impossible to justify on any impartialbasis.15 [D]emonstrating the ethical problems with the lawyerslife does not necessarily have any relevance to the moral

    9Id. at 1001 (Legal ethics is itself legal doctrine, has the form of legaldoctrine, and must be engaged with in that way.).

    10Id. at 987. Woolley aptly describes writers who take this approach as

    trying to articulate the moral foundations of the lawyers role from theperspective of a democratic society. Id. at 997.

    11Id. at at 987.


    13Id. at 994.

    14Id. at 987.

    15Id. at 998.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    justification for what lawyers do, or any implications for whatlawyers do or should be required to do.16

    For Woolley, the ethical quality of lawyers lives is notworthy of special concern, at least not when it is opposed to thelegitimate interests of society in general. She analogizes legalethics to the rules governing the conduct of soldiers andimmigration officials, arguing that in our analysis of the meritsof those rules, we do not focus significantly on questions such as,Will an immigration officer lead a well-lived life?17

    This is not obviously correct. If society asks members of acertain profession to sacrifice some interest of theirs for societys

    good, it is appropriate to expect some special concern for them. Itmight even be appropriate for society to forego some benefits inthe name of reducing harms to professionals who sacrifice for it.(Of course, it is an open question whether lawyers are anythinglike soldiers.)

    That said, we can see Woolleys point. Even ifsomeoneshould be concerned about lawyers well-being, why should it belegal ethicists? Bradley Wendel formulates the thought this way:Unless one is prepared to argue that the obligations of aprofessional role should be modified to reduce immorality from a

    first-person perspective, what business is it of legal ethics thatlawyers may feel that their lives are not well lived? 18

    We should keep separate two issues. If the only problem isthat lawyersfeel that their lives are not well-lived, then it is aproblem for psychologists and career counselors, not ethicists. Itis like the problem of doctors feeling squeamish about blood. Butif lawyers rightly feel that their lives are not ethically admirable,then legal ethicists may have work to do.

    To know whether lawyers might rightly feel that their lives

    are not admirable, we will have to understand not just whether

    16Id. at 1001.

    17Id. at 1000.

    18 W. Bradley Wendel, Methodology and Perspective in the Theory ofLawyers' Ethics: A Response to Professors Woolley and Markovits, 60 U.TORONTO L.J. 1011, 1018 (2010).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    12 AYERS [11-Aug-11]

    the lawyers role is justified from societys perspective, but alsowhether lawyers could have any reason to be ethically troubled

    that is not apparent from the systems perspective. If there isnothing lawyers can see that the system cannot, then there is noseparate ethical question to be asked from the lawyersperspective, and lawyers feelings of discomfort will be nobusiness of the ethicists. Lawyers will be useful to ethicists onlyas canaries, whose reactions warn us when the gas of injusticeseeps into the mine-shafts of the law. This is Wendels view: thefirst-personal perspective is epistemically usefulin that it givesus information about how well or poorly our moral and politicalideals have been implementedbut not intrinsically

    significant.19 That is the right viewif the lawyers perspectivehas nothing substantive to add to legal ethics.

    Some legal ethicists disagree with the claim that thelawyers perspective is not worth taking.20 Recently, the case fortaking the lawyers perspective has been made forcefully byDaniel Markovits, whose first major work on the subject wastitled Legal Ethics from the Lawyers Point of View.21

    Markovits begins from the observation that even if theadversary system is justified overall, it still seems to require

    lawyers to take actions that are not, themselves, admirable.22

    The norms that form the core of adversary advocacy, according toMarkovits, require lawyers to be guilty of professional vices,which place a significant ethical burden on lawyers integrity. 23 Asystem that is justified from the policy-makers perspective,Markovits argues, can still be ethically unappealing from thepractitioners perspective.

    19Id. at 1018-19.

    20 Not many writers want to exclude first-personal concerns entirely from

    legal ethics. Tim Dare, for example, thinks they represent one importantstrand of critiques of the standard conception. Tim Dare,Philosophical LegalEthics and Personal Integrity, 60 U.TORONTO L.J. 1021, 1024 (2010).

    21 Daniel A. Markovits, Legal Ethics from the Lawyers Point of View, 15YALE J.L.&HUM. 209, 223 (2003).


    23Id. at 104.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    s that


    Markovits does not claim that the lawyers perspective isthe only perspective that matters. He argues at length that the

    institutions of lawyering are themselves morally justified fromsocietys perspectivefrom what I am calling the policy-makersperspective.24 But he argues that the lawyers perspective mustbe understood as separately and importantly relevant.

    For Markovits, the principal question that arises when wetake the lawyers perspective is whether it is possible to interpretlawyers actions in a way that will make them seem appealing tolawyers themselves. The question is whether [t]he life of thelawyer is worthy of commitment.25 As he writes, lawyersnaturally and for good reason wish to conceive of themselves asnot vicious at all,26 even if it is better for society that they act inthe vicious ways their role requires.27

    The idea that lawyers roles require acts that threaten theirintegrity is one of the oldest ideas in legal ethics theory. 28Wendel and Dare acknowledge that it is a problem, but theirsolution is simply for the lawyer to give up any of her idealare incompatible with lawyering. Wendel calls thisincorporationist solution.29 The agent is supposed toincorporate the values associated with a professional role

    24Id. at 171-211.


    26Id. at 107.

    27 It is important to distinguish the philosophical sense of vicious,meaning possessed of vices of character, from the more colloquial sensemeaning [f]ull of malice or spite; malignantly bitter or severe. Vicious,Oxford English Dictionary Online, visited February 21, 2011. Cf. Lou Reed,Vicious, on TRANSFORMER (1972) (When I see you walking down the street / Istep on your hands and I mangle your feet / You're not the kind of person that Iwant to meet / Oh, baby, youre so vicious).

    28 In a seminal article, Wasserstrom worried that even if lawyers roles arejustified, the lawyer qua lawyer will be encouraged to be competitive ratherthan cooperative; aggressive rather than accommodating; ruthless rather thancompassionate; and pragmatic rather than principled. Richard Wasserstrom,Lawyers as Professionals: Some Moral Issues, 5 HUM.RTS. 1, 13 (1975).


  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    14 AYERS [11-Aug-11]








    o, we will need toexplore what it means to take a perspective.

    her own practical identity.30 Then she can remain true to herown personal moral commitments while acting well within the

    role.31 This is only a solution if there is no real problem to begwith. Integrity, as Wendel sees it, is a problem that arisesinconsistent commitments; and as long as the norms of legaethics are justified from the policy-makers perspective, there isno reason for lawyers to resist incorp

    Markovits argues that there is such a reason. Where manyother writers see integrity as merely a psychological problemarisk that lawyers will experience alienation or related unhealthypsychological states32Markovits sees integrity as more than

    just a psychological concern. He wants to show that lawyersfirst-personal concerns about their integrity are genuinely ethicain nature and that a complete theory of legal ethics must takethem into account. This gives rise to a number of interestingissuesparticularly the question whether lawyers concernsabout their own integrity are a legitimate subject for ethicalinquirythat will not be addressed in this article. Instead, I wargue that there are other concerns visible from the lawyersperspective, and that legal ethicists have sometimes runserious conceptual problems because they overlooked those


    Markovits, like Woolley, sees the lawyers perspective asmainly a self-interested onenot in the sense of pursuing oneown economic or financial interests, but in the sense of beingprimarily concerned with ones own ethical well-being. Thepractitioners perspective, I will claim, involves much more thanones own well-being. To explain how this is s

    30 Wendel, supra note 29, at 163.


    32See, e.g., Gerald J. Postema, Moral Responsibility in Professional Ethics,55 N.Y.U. L.REV. 63 (1980); Gerald J. Postema, Self-Image, Integrity, and

    Professional Responsibility , in THE GOOD LAWYER, supra note 4, at286.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    C. Perspectives as Reasons

    To better understand the difference between the lawyersperspective and the policy-makers perspective, it will be useful tobring in the concept ofpractical reasons. Practical reasons aresimply the reasons we have for choosing one option over anotherin any situation. They are reasons for doing or feelingsomethingany consideration that counts in favor of an action,emotion, commitment, or attitude.33

    The term reason is used in philosophy in much the sameway it appears in everyday speech. I thought about it, we might

    say, but I realized that even though I wanted to do X, I didntreally have a reason for doing it. When we reflect on ethicalmatters, we look for reasons for or against each of our choices.

    And when we want to justify our choices to someone else, we offerour reasons for it.34 The goal of ethical philosophy is to help

    33 T.M.SCANLON, WHAT WE OWE TO EACH OTHER 17 (2000). Readers whodesire a better definition of reason are referred to Scanlons argument that nobetter definition can be offered, id., and Parfits argument to the same effect.DEREKPARFIT, 1 ON WHAT MATTERS 31 (2011). Practical reasons are oftenreferred to as reasons for action, which is slightly misleading; the word

    action in that phrase must be understood to include internal or mentalactions like hoping, being open-minded, or feeling disgusted. Practicalreasons are distinguishable from epistemic reasonsreasons for believing aproposition to be true or false. Epistemic and practical reasons aredistinguished because they do not overlap. For example, my loyalty to a friendmight give me strong practical reasons to hope that he did not steal my car.But it does not give me any epistemic reason to believe he is innocent, and Imake a serious mistake if I weigh my loyalty among the reasons to holdparticular beliefs. Seeid. at 420-27.

    34 As T.M. Scanlon writes, To justify an action to others is to offer reasonssupporting it and claim that they are sufficient to defeat any objections thatothers may have. Scanlon, supra note 33, at 197. The reasons that are of

    interest here arejustificatory reasons, not explanatory reasons. Anexplanatory reason is a reason that explains why, as a matter of historical andpsychological fact, a given person did something: He took his third bath of theday because he thinks he has to take a bath every time he sees Larry King onthe TV. A justificatory reason is agood reason, a consideration that reallycounts in favor of the thing in question. Scanlon, supra note 33, at 19. Ofcourse there are many deep philosophical questions about what makes thingsgood reasons, and how we can know what they are. I will not dive into thosequestions here; I assume that the reader agrees that it is meaningful to askwhat reasons people have for their actions or attitudes, and that it is

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    16 AYERS [11-Aug-11]

    answer the question, What do we have most reason to do?35Political philosophy is the sub-set of ethical philosophy that deals

    with what we have most reason to do when we act as policy-makers.

    To say we have a reason for doing something is to say thatthere is more than just a whim or an arbitrary desire pushing ustowards doing something; there is a consideration in favor of itthat can withstand careful reflection. When the reasons on oneside outweigh or override the reasons on the other side, we feelthat the choice is justified. In Christine Korsgaards words, [t]henormative word reason refers to a kind of reflective success.36

    The concept of a perspective can be understood moreclearly if we describe it in terms of practical reasons. To take aperspective on a situation is to include some reasons in ourthinking and to exclude others. For example, to view a choicefrom a financial perspective is to consider, when we evaluate thereasons for and against each option, the reasons that relate tomoneyand not other reasons. To view a choice from aneconomists perspective is to consider the reasons that economistsrecognize. Depending on the economist, these reasons willprobably include considerations like utility or welfare, and they

    will probably not include considerations like moral value. Toview a choice from a political perspective is to focus on thereasons relating to public discourse, public institutions, and thevalues associated with them.

    A choice can also be viewed from the perspectives ofdifferent people who are involved with it in different ways. Whenwe say that a choice looks different from different peoplesperspectives, we are using the people to represent the specifickinds of reasons with which those people are concerned. The factthat a major sports event will be on television tonight is a matter

    of indifference from my perspective, because I am not a sports

    meaningful to claim that some reasons are better than others. See PHILIPPAFOOT, VIRTUES ANDVICES 156 (1978) (I dont understand reasons for action,and I dont think anyone else does.).


    36 Korsgaard, supra note 1, at 93.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    fan. From my perspective, considerations that might count asreasons for sports fans to watch the gamelike the fact that two

    teams with a particularly bitter rivalry will face offdont countas reasons to do, or not do, anything.

    This article looks at whether there are significantdifferences between the perspectives on legal ethics thatpractitioners and policy-makers might take. Translated into thelanguage of practical reasoning, the question becomes whetherpractitioners and policy-makers are concerned with differentgroups of practical reasons. To answer that question, it will firstbe necessary to understand the kinds of claims about practicalreasoning that generally appear in legal ethics theory.

    D. What is the Standard Conception of Legal Ethics a

    Conception Of?

    Many theories of legal ethics focus on explaining, justifying orchallenging what is called the Standard Conception of legalethics.37 On most accounts, the standard conception consists ofthree related principles. The first is the principle ofPartisanship,under which lawyers should be partisans of their clients

    interests. The second is the principle ofNeutrality, under whichlawyers should refrain from reaching independent judgments ofthe justness of clients positions. The third principle is theprinciple ofNonaccountability, under which lawyers should not beheld morally responsible for the goals they pursue on their clientsbehalf.38

    These principles are controversial. Some writers defendthe Standard Conception, while others criticize it, and still otherstry to improve upon it. Although there is much disagreement

    37See, e.g., Dare, supra note 29, at 2.

    38See William Simon, The Ideology of Advocacy: Procedural Justice andProfessional Ethics , 1978 WIS.L.REV. 29, 36 (1978) (referring to principles ofpartisanship and neutrality); Postema, Moral Responsibility in ProfessionalEthics, supra note 32, at 73 (partisanship and neutrality); Wendel, supra note29, at 29-31.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    18 AYERS [11-Aug-11]

    about the merits of the Standard Conception, it is the place fromwhich many theories of legal ethics begin.39

    It is not always clear what the Standard Conception issupposed to be a conception of. There are at least three things itmight be a conception of. First, it might be understood as aconception of lawyering law. On this understanding, theprinciples of the Standard Conception represent the deep valuesthat are expressed in specific rules and regulations governinglawyers behavior. It is a conception of what lawyering law isreally about.

    Second, we might understand the Standard Conception as

    a conception of the informal social norms that constitute the roleof lawyer. On this understanding, the Standard Conception is aconception of the basic expectations that apply to lawyers in oursociety. On a deep level, we might claim, behaving in the waysdescribed by the Standard Conception, or aspiring to behave inthose ways, is what makes someone a lawyer.

    A third way of understanding the Standard Conception isas a set of claims about practical reasoning. On thisunderstanding, each of the principles of the Standard Conceptionis a claim about what sorts of considerations lawyers should

    recognize as reasons for action. The principle of Partisanship is aclaim that lawyers should treat as reasons for action only thoseconsiderations that relate to their clients interests. Being apartisan means recognizing your clients interests as reasons fortaking a variety of actions, but treating other parties interests asirrelevant to the decisions you face.

    Similarly, the principle of Neutrality can be understood aclaim that lawyers should exclude from their practical reasoning

    39 There are other ways to approach legal ethics theory. Scholars likeThomas Shaffer and Anthony Kronman have approached legal ethics by way oflawyers character, asking what traits make lawyers admirable, rather thanwhat norms govern their behavior in role. See THOMAS L.SHAFFER, FAITH ANDTHE PROFESSIONS (1987); ANTHONYT.KRONMAN, THE LOST LAWYER :FAILINGIDEALS OF THE LEGAL PROFESSION (1995).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    their own views about what is moral.40 In other words, the factthat my client wants to do something that I believe to be wrong or

    immoral does not give me reason to do, or not do, anything.

    The principle of Nonaccountability is not a claim aboutwhat lawyers should count as reasons; it is a claim about thereasoning of people who evaluate lawyers conduct. The principleof Nonaccountability answers the question whether we shouldcount as a reason for thinking a lawyers choices good or bad thefact that a lawyer pursued a morally bad aim, like the use oftechnical defenses to avoid a morally binding obligation. Theprinciple of Nonaccountability says that we should not count theclients aims as reasons for judging the lawyer to have acted wellor poorly.41 Although the principle of Nonaccountability isaddressed to anyone who evaluates lawyers conduct, that groupincludes lawyers themselves. Lawyers want to know whethertheir conduct is morally admirable or blameworthy. The principleof Nonaccountability tells them to exclude from theirdeliberations any concerns they may have about theirresponsibility for the clients aims.42

    Notice that the Standard Conception itself is not a set ofclaims about what reasons lawyers have for following the

    principles of Partisanship, Neutrality and Nonaccountability. Inother words, the Standard Conception tells lawyers whatconsiderations to recognize as reasons. But it does not offer

    40 Partisanship and neutrality are conceptually distinct, but they can alsobe represented as a single principle of professionalism. See David Luban,The Adversary System Excuse, in THE GOOD LAWYER,supra note 4, at 84, 90.

    41 Markovitss account of the Standard Conception interestingly re-formulates the principle of nonaccountability as a principle of reduced legal

    liability for negligence in the pursuit of a clients goals. Markovits, supra note22, at 31-34.

    42 It may seem from this description that the principle of Nonaccountabilityis a claim about reasons for belief, rather than reasons for action, because itrelates to reasons for believing that a given action was morally justified. Butthis would be the wrong conclusion. Every piece of practical or moralreasoning involves beliefs about what to do. Our beliefs about what tobelieveour epistemic beliefsare importantly different from our beliefs aboutwhat should be done. See Parfit, supra note 33, at 420-27.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    20 AYERS [11-Aug-11]

    second-order reasons for recognizing those considerations asreasons. That is where legal ethics theorists come in.

    It is easy to see why it might be necessary to call inspecialists to identify the reasons for following the StandardConception in ones own practice. It is not usually admirable topursue aims one believes are bad, to suspend ones moralconcerns about the actions in which one is engaged, or to denymoral responsibility for the aims one pursues. The StandardConception claims that lawyers have good reasons to act in theseways. The challenge for legal ethicists is to determine whetherthose reasons exist, and, if so, to show why they outweigh oroverride whatever reasons lawyers have not to act in these ways.

    Legal ethicists often begin their investigations bydescribing this challenge in a way that creates more confusionthan clarity. They sometimes fail to describe the problem clearly,I will argue in the next section, because they do not describe it interms of practical reasoning.

    E. Two Minor Puzzles, Solved

    In this section I will identify two ways in which certainkinds of confusion about legal ethics can be avoided when weunderstand legal ethics theory as a set of claims about practicalreasoning. This argument is not directly relevant to my mainclaim about the importance of the practitioners and policy-makers perspectives. But it will help illustrate the importance ofunderstanding legal ethics through the lens of practicalreasoning. And it will provide useful background for thearguments that come laterwhich relate to certain mistakesmade in some theories of legal ethicsbecause it will explain how

    conventional theories of legal ethics are generally organized.The first kind of confusion that we can avoid by describing

    legal ethics in terms of practical reasoning relates to the way inwhich legal ethicists identify the challenge facing them.

    Many legal ethicists begin their theory with claims aboutwhat they call ordinary morality. Specifically, they often assertthe practice of lawyering under the Standard Conception runs

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    afoul of ordinary morality.43 As Tim Dare observes, [A]lmost alltreatments of legal ethics begin[] by noting the perception that

    lawyers are grasping, callous, self-serving, devious andindifferent to truth and the public good.44 Lawyers roles, legalethicists often claim, require them to act in ways which mightproperly be condemned from the perspective of ordinarymorality.45

    The claim that lawyers roles are immoral from theperspective of ordinary morality sounds depressingly final. Itseems to imply that if lawyers morality is to be justified, it mustbe treated as something so fundamentally different that the twomoralities should be thought of as separate systems altogether.46Conventional theories make this implication clear when theyfocus, as many do, on the question of whether lawyerly morality isdifferentiated from ordinary morality.47

    The mistake here is to assume that the only way to justifylawyers actions is to separate lawyers morality, understood as asystem, from ordinary morality, understood as a system.48 The

    43See, e.g., Dare, supra note 29, at 3 (According to this critique . . . lawyersacting under the standard conception are alienated from ordinary morality).For a somewhat different take on this problem, see Rosalind Hursthouse, TwoWays of Doing the Right Thing, in VIRTUE JURISPRUDENCE 236, 236-237(Farrelly & Solum ed. 2008).

    44 Dare, supra note 29, at 148.


    46 For example, Wendels book opens with the assertion that popularcriticism of lawyers is based on a tacit assumption: that lawyers ethics is abranch of ordinary, common, everyday moralityethics for people as people,not as occupants of defined social roles. Wendel, supra note 29, at 1. Ofcourse, popular critics could only be making such an assumption if there reallyis a meaningful distinction between ordinary morality and lawyers ethics.


    On role-differentiation, see ALAN






    OF PROFESSIONAL ETHICS 2-3 (1980). Tim Dare devotes a chapter of his book toanalyzing the ways in which a roles morality may be differentiated fromordinary morality. Dare, supra note 29, at 29-58.

    48 William Simon rightly criticizes various accounts of legal ethics forexaggerat[ing] the necessary distance between ordinary morality and legalethics. William H. Simon, Role Differentiation and Lawyers Ethics: ACritique of Some Academic Perspectives, 23 GEO.J.LEGAL ETHICS 987, 988(2010).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    22 AYERS [11-Aug-11]

    idea of differentiation from ordinary morality suggests that theonly way to accept lawyers actions is to reject the whole system of

    ordinary morality. But this implication is a dangerous one. It isnot a good idea to suggest to lawyers that the only way for themto accept the obligations of their role is by some Nietzscheanoverthrow of an entire moral system. We should not encouragelawyers to declare independence from the moral thinking theygrew up with.

    Fortunately, it is not true that our only hope for justifyinglawyers conduct is to treat ordinary morality and role morality asseparate systems. The language of practical reasoning gives us amore careful way to describe the challenge facing legal ethicstheorists. When Dare and other writers talk about lawyersconduct being condemnable from the perspective of ordinarymorality,49 we should remember that a perspective is a cluster ofreasons. To say that lawyers actions are condemnable from theperspective of ordinary morality is to say simply that there areordinary moral reasons not to do what lawyers do.

    This is a more reasonable claim. Rather than saying thatadvocacy violates ordinary morality, and that lawyers moralitymust be differentiated from ordinary morality if their actions are

    to be justified, we should say that there are ordinary moralreasons not to pursue aims we think are bad, or to suspend ourmoral concerns about the actions we perform, or to deny ourresponsibilities for the aims we pursue.

    We do not need to invoke any particular theory of moralityto acknowledge that there are certain moral reasons that applyuncontroversially to everyone. All of us ordinarily have reason topursue only aims that we think are morally good, and to exerciseindependent moral judgment about the aims we pursue. Thus,there are ordinary moral reasons to reject the principles of

    Partisanship and Neutrality. And everyone has an ordinarymoral reason to take responsibility for our actions. So we haveordinary moral reasons to reject the principle ofNonaccountability. These reasons, then, count against followingthe Standard Conception. But they do not imply that we must


  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    renounce ordinary morality altogether if we are to accept theStandard Conception. They merely imply that we must find

    countervailing reasons.

    The mere fact that there are ordinary moral reasons not tofollow the Standard Conception hardly establishes that lawyerswho follow it operate under a separate moral system. 50 If weframe the question in terms of practical reasoning, we canexpress the problem that motivates legal ethicists withoutimplying that lawyers must secede from ordinary morality if theywish to consider their conduct admirable. Instead, we can say,simply and accurately, there are ordinary moral reasons not tofollow the Standard Conception. This claim is more than enoughto get a theory of legal ethics started.

    A second kind of confusion that can be avoided byunderstanding legal ethics theories as theories of practicalreasoning relates to the structure of those theories. Manytheories of legal ethics take the metaphorical structure of a legalproceeding. As discussed above, many theories begin with a claimthat lawyers violate ordinary morality.51 Writers who take thisapproach treat the purported violation of ordinary morality as asort ofprima facie claim against lawyers, with ordinary

    morality playing the role of the governing legal regime. Thisprima facie claim of a violation of ordinarily morality, they say,shifts the burden of persuasion to the defensethat is, to lawyersor those who wish to defend their conduct.52 The theorist thenexamines the possible defenses, excuses, and immunities that

    50 As noted in Mike W. Martin, Rights and the Meta-Ethics of ProfessionalMorality, 91 ETHICS 619, 620 (1981). See also Benjamin Freedman,A Meta-Ethics for Professional Morality, 89 ETHICS 1 (1978); Benjamin Freedman,What Really Makes Professional Morality Different: Response to Martin, 91ETHICS 626 (1981); Mike W. Martin,Professional and Ordinary Morality: A


    ROLES IN PUBLIC AND PROFESSIONAL LIFE 3, 42, 45 (1999). Cf. McDonnellDouglas Corp. v. Green, 411 U.S. 792 (1973).

    52See, e.g., Wasserstrom, supra note 28, at 34. Applbaum similarly askswhether lawyers are liars, concluding that they are at least serial deceivers,andusing burden-shifting languagethat deception is presumptivelywrong. Applbaum, supra note 51, at 76, 104.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    24 AYERS [11-Aug-11]



    lt in a


    not decide what to do if we cannotidenti

    might apply to lawyers conduct.53 (Burden-shifting languagewas used in moral philosophy long before legal ethicists took it

    up, but it is perhaps not surprising that lawyers find itrtable.54)

    It may seem strange to find a burden-shifting paradigmthe context of ethics. In legal procedure, burden-shifting is aprocedural device used to determine which of two adversariesshould lose if there is no evidence on a question or if the answeris too hard to find.55 As Judge Posner writes, the function of thiskind of device is to allow a court to reach a definitive resucase where it may not have the faintest idea whether thedefendant wronged the plaintiff, and if so how seriously. 56 Adevice of this kind has no obvious relevance to practical ethidecisions, where there are no adversaries and the goal is toidentify the right thing to do,

    fy the correct answer.

    53 The most well-known defense argument is what David Luban dubbed theAdversary System Excuse, under which the lawyers bad acts are claimed tobe permissible because of their contribution to the system in which shepractices. See Luban, supra note 39. Other defense arguments seek to rebut

    theprima facie case, contending that what might seem to be a violation ofordinary morality is not a violation after all. This strategy is known as role-based redescription. SeeApplbaum, supra note 51, at76-109 (1999). Stillother arguments for the defense are in the nature of a claim of immunity or alack of jurisdiction: a claim that the regime of ordinary morality does notapply to the moral territory on which lawyers practice. As Murray Schwartzobserves, this kind of argument is a demurrer, not an answer, to moralcriticism. Schwartz, supra note 4, at 150, 151.

    54 Burden-shifting has been used in philosophy since at least 1702, whenLeibniz argued for a presumption in favor of the existence of God that wouldshift the burden of proof to disbelievers. See RICHARD H.GASKINS,BURDENS OFPROOF IN MODERN DISCOURSE 1 (1992). A more recent example is Judith

    Andre, Role Morality as a Complex Instance of Ordinary Morality, 28 AM.PHIL.QUART. 73 (1991).


    56 RICHARDA.POSNER, THE PROBLEMS OF JURISPRUDENCE 215-216 (1990).Posner is talking about burdens of proof, but the same is true of presumptionsand burden-shifting devices. For a discussion of the difference between theseand other procedural devices, see FREDERICKSCHAUER, THINKING LIKE ALAWYER:ANEW INTRODUCTION TO LEGAL REASONING 219-229 (2009).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4






    t toy do. The question, then, is how the burden, once


    low the Standard Conception, and thattherefore we should not follow it unless other reasons outweigh oroverride those reasons.



    reasons for policy-makers to consider in their decision-making.But they are not necessarily important reasons for practitioners.

    If we understand the burden-shifting metaphor in terms opractical reasoning, it becomes easier to understand. Burden-

    shifting is an apt metaphor for the way reasons work. Reasoretain their force until something cancels or defeats them.57 Ifyou are facing a decision, and there is only one reason to doanything, you should do what that reason is a reason for. 58 Ifthere is a reason that counts against doing a thing, you shounot do that thing unless there are reasons that count in the otherdirection. So if the burden shifts to lawyers to defend theirconduct, it is just because there is an ordinary moral reason nodo what the

    , can be methow an ethical reason can be defeated or

    cancelled.Rather than saying that the burden shifts to lawyers to

    justify their actions, we should say simply that there are ordinarymoral reasons not to fol


    The last section argued that we should understand theperspectives of the practitioner and the policy-maker in terms ofthe practical reasons that each of them consider in their decisimaking. This section argues that those reasons are different inan important way. Legal ethicists often argue that desirableconsequences will follow if lawyers in general act in a particularway. When such claims are true, they are necessarily important


    58See JOSEPH RAZ, THE PRACTICE OFVALUE 144 (2003) (possession of avalue property . . . constitutes a presumptively sufficient reason for action).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    26 AYERS [11-Aug-11]

    A. Aggregate Consequences

    Many arguments in legal ethics theory deal with socialgoods that would be promoted or protected if lawyers in theaggregate acted in a certain way. These arguments claim thatcertain goods will be promoted or protected if lawyers generallybehave in a certain way: our legal system will perform better, orour democracy will better preserve its legitimacy, or our societywill do a better job of protecting legal rights. These are claimsabout the consequences of certain kinds of lawyerly behavior.

    For example, in one of the earliest works on legal ethics,

    George Sharswood wrote that the way to decide whether the useof contingent fees was morally acceptable was to look at whatwould be the results of such a practice, if it became general.59It is one of that class of actions, he wrote, which in particularinstances may be indifferent, but their morality is to be tested byconsidering what would be the consequences of their generalprevalence.60 In other words, Sharswood claimed that lawyersshould decide whether to charge contingent fees by asking whatconsequences would follow if lawyers in the aggregate chargedcontingent fees.61

    Making claims about consequences does not commit one to aconsequentialist moral philosophy. As Bernard Williams notes,no sane person denies that consequences are relevant to ethicaldecision-making.62 The word consequence refers to any state ofaffairs that is brought about as a result of a decision or a set of




    Sharswood argued that contingent fees would corrupt the character ofthe profession by making lawyers too interested in their clients claims; alawyer whose fee was contingent on success would be unable to see that thefacts in a particular case were strongly against his clients position and that itwas his duty to retire from it. Id.

    62 To engage in moral thinking without considering the consequences of anaction would be merely insane, if intelligible at all. Bernard Williams,ACritique of Utilitarianism, in Smart and Williams, UTILITARIANISM:FOR ANDAGAINST 133 (1973).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4





    decisions. Legal ethicists sometimes seem to imply thatconsideration of consequences implies a denial that some actions

    are intrinsically wrong or that integrity is intrinsicallyvaluable.63 That is a mistake. Consideration of the consequeof our actions does not entail a belief that the ends justify themeans. Everyone has reason to ask what will be the outcomehowever broadly we understand outcomeof the choices thatwe make. No matter what moral theory we adopt, this question iof great interest.

    Even if one does accept a consequentialist moral theory, thatacceptance does not imply a belief that the ends justify themeans, or a rejection of the idea that some kinds of actions areintrinsically wrong. Evaluation of consequences can includeevaluation of any aspect of a state of affairs. One way that a stateof affairs can be intrinsically good is if the people involved in itexperience more pleasure and less pain. If you are a utilitarian,you believe this is the aspect of a state of affairs that mattersmost.64 But consequentialists can also recognize other aspects ofstates of affairs as intrinsically good. For example, someconsequentialists believe that a state of affairs is good insofar asgoods are distributed fairly among the people involved in it.65Other consequentialists claim that a state of affairs is

    intrinsically good when the people involved in it are not engagedin intrinsically wrong actions like lying.66 So consequentialists

    63 Daniel Markovits writes, for example, that a consequentialist cannotrecognize the importance of an agents integrity. He thinks that the agent maylegitimately wish, for example, not to murder one of twenty hostages to savethe rest of the group from being killed. Markovits, supra note 22, at 130. Butconsequentialists can recognize that an agents integrity has value to her, justas they can recognize that an agents children have special value to her. Whatthe consequentialist cannot accept is a claim that the agents integrity hasmore value than another agents integrity. Consequentialists are generally

    committed to impartiality. See BRAD


    , IDEAL




    ORLD110(2002). But impartiality does not imply denying that agents special

    relationships to their own actions give rise to special kinds of value, includingthe value of integrity.

    64 J.S. Mill, UTILITARIANISM 7 (1861, repr. 2005).

    65 This is called prioritarian consequentialism. See Hooker, supra note63, at 45.

    66See Parfit, supra note 33, at 373-74.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    28 AYERS [11-Aug-11]

    are perfectly capable of recognizing the value of intrinsically goodactions, or values that arise out of special relationships like the

    relationship between a parent and a child. A consequentialist canalso recognize that an agents integrity has value to her. Whatconsequentialists usually deny is that an agents integrity hasmore value than another agents integrity.67 That, however, is alarge question that is well beyond the scope of this article.

    The question I want to consider here is how consequencesare analyzed in legal ethics. The type of consequences on whichthis article will focus are aggregate consequences, by which Imean consequences that flow from an aggregated group ofdecisions, rather than any single decision viewed in isolation.

    Aggregate consequences feature prominently in legal ethicstheory.68 Writers often claim that certain kinds of lawyerlyactions or dispositions will have the consequence of promoting orprotecting collective goods.69 Many theorists begin with a claimthat law helps society resolve or avoid moral conflicts, and that ittherefore helps promote cooperation and peaceful coexistence in asociety where there are many different moral beliefs. BradleyWendel, for example, argues that law is a collective good or acollective achievement that helps society achieve a number of

    important goals.70

    Drawing on the work of political philosophers,Wendel argues that law allows societies to to supersedeuncertainty and disagreement and provide a resolution of

    67 What makes a moral theory consequentialist, on most accounts, is that itconsiders consequences important without regard to who brings them about. Aconsequentialist could claim that I should tell a lie if it will prevent three otherlies, or commit murder if it prevents three other murders, because whatmatters is the state of affairs, not my relationship to it. A non-consequentialistcould claim that I should prefer a state of affairs in which I tell no lies and youtell three lies to a state of affairs in which I tell one lie and you tell none. The

    difference is that non-consequentialists see the agents personal relationship tothe state of affairs as significant, while the consequentialist asks the agent toview the situation impartially.

    68 David Luban observes that one need not be a consequentialist to acceptthe importance of aggregate consequences. Luban, supra note 62, at 439.

    69 For a definition of collective goods, see RUSSELL HARDIN, COLLECTIVEACTION 19 (1982).

    70 Wendel, supra note 29, at 4.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    competing claims of right, so that citizens can coexist and worktogether on mutually beneficial projects.71 Law serves a crucial

    coordination function; it allows citizens to solve social problemscollectively without coming to agreement on their visions of thegood.72 Citizens need not debate which side of the road we shoulddrive on because they can agree that the law has settled thatquestion for all practical purposes. Once Wendel has identifiedthe collective goods that law promotes, the question becomes howlawyers can best help it promote those goods. His theory of legalethics is an attempt to answer that question.

    Other legal ethicists begin from similar accounts of lawsrole in society. Tim Dare, like Wendel, emphasizes laws functionas a mediator between different views in a pluralistic society. Heargues that the fundamental function of law in Westerndemocracies is to mediate between reasonable but inconsistentviews of what we should do as a community.73 Daniel Markovitsalso bases his theory on laws role in facilitating the resolution ofsocial conflict, emphasizing the way in which the adversarysystem can help people accept whatever resolution of theirdisagreements the legal system offers.74 Alan Goldman similarlyclaims that that the stability of the legal system depends uponthe willingness of citizens to settle their disputes within it. 75

    Each of these writers goes on to explain how lawyers actions anddispositions can promote and protect the collective goodsassociated with living under law.

    Critics of the Standard Conception also make claims aboutthe consequences of lawyers actions. David Luban argues inLawyers and Justice that laws are worthy of respect if they aregenerally beneficial, and that lawyers play a particularly

    71Id. at 54. Wendel does not claim that this is laws only function.

    72Id. at 88. Interestingly, this is precisely what Thomas Shaffer dislikesabout law. See THOMAS SHAFFER,ON BEING A CHRISTIAN AND A LAWYER 186(1981).

    73 Dare, supra note 29, at 74.

    74 Markovits, supra note 22, at 174-85.

    75 Goldman, supra note 47, at 153. Goldman rejects the idea that thiscollective interest counsels in favor of zealous partisan advocacy. Id.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    30 AYERS [11-Aug-11]

    important role in determining whether a societys laws satisfy therequirement of generality.76 The requirement of generality is a

    requirement that law must transcend the particular case, thatsimilar cases should be treated similarly.77 Luban claims thatcertain kinds of lawyering amount to attacks on laws generality.

    A lawyer effectively attacks laws generality when she creates orexploits loopholes in tax law that are, as a practical matter,available only to the wealthy and well-counseled. This kind ofinstrumentalist lawyer, Luban writes, tries to ensure that hisor her client need not play by the same rules as the rest of us. 78

    Lubans concern about lawyers impact on the generality oflaw is a concern about lawyers impact on the structure of societyas a whole. He writes that [t]he existence of a regime ofinstrumentalist lawyers threatens to undermine the generality oflaw and thus to abrogate the moral authority of law.79 Lubanwarns, Undermine generality and you undermine the verylegitimacy of law, reducing it once again to coercion.80 Lubanseems to intend the you in this sentence as a plural you,rather than a singular one.81 His claim is that lawyers generallyrisk reducing law to coercion when they take an instrumentalistapproach, not that a single lawyers exploitation of a tax loopholeundermines the legitimacy of law. (That would be a more

    complicated claim to support.)

    Sometimes it is possible to interpret a claim as relatingeither to aggregate consequences or to individual choices.Consider, for example, Richard Wasserstroms warning about the


    77Id. at 44.

    78Id. at 49.



    81 In Lubans argument, the same generality that lawyers are urged todefend is what gives lawyers their obligation to respect the law in the firstplace. Lawyers have an obligation to respect the law because it is general; andlawyers have an obligation not to undermine laws generality because doing sowill undermine peoples reasons to respect it. Id. at 43-47. Lubans argumentserves as an illustration of what Lon Fuller called the cooperative nature ofthe task of maintaining legality. Fuller, supra note 17, at 91.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    danger that certain kinds of decisions by lawyers will lead to anoligarchy of lawyers. Wasserstrom imagines a lawyer who

    disagrees with a clients decision to disinherit a child because ofthe childs opposition to the war in Vietnam.82 The lawyer istempted not to facilitate the disinheritance. But for the lawyer tosubstitute her own private views of what ought to be legallypermissible and impermissible for those of the legislature,Wasserstrom argues, would constitute a surreptitious andundesirable shift from a democracy to an oligarchy of lawyers. 83

    The term oligarchy obviously refers to a kind ofgovernment, and so it is probably best to interpret Wasserstromsargument as a collective one. The avoidance of a lawyersoligarchy is, on this interpretation, a desirable aggregateconsequence of lawyers actions. If lawyers in general vetoedclient requests on moral grounds, the argument goes, lawyerswould impose an additional layer of government between the realgovernment and the client.84 In Alan Goldmans words, theconcern is that we as a society will substitute a government oflawyers for a government of law.85

    82 Wasserstrom, supra note 28, at 10.


    Id. at 11. The claim that morally activist lawyers substitute theirjudgment for the legislatures is questionable; we have no reason to think thatKorsgaards lawyer disagrees with the legislature. She might well agreepassionately that the law should leave people in general free to dispose of theirestate as they wish. But she could also believe that in this situation, she hasgood reason to suppress it.

    84 David Luban observes that lawyers lack a hidden Central Committee,so there is no real danger of an actual oligarchy of lawyers. Luban, TheLysistratian Prerogative: A Response to Stephen Pepper, 11 AM.BAR FOUND.RES.J. 637, 641 (1986). Rather, the concern should be understood asmetaphorical: Wasserstroms claim is that lawyers will become like anoligarchy. The arguments later offered by Dare and Wendel make can be

    understood as responses to Lubans claim in The Lysistratian Prerogative thatthere is simply nothing wrong with lawyers acting as informal filters ofpeoples legally permissible projects, id., given how deeply our society dependson informal moral filters for the success of legal institutionsand, for thatmatter, every institution. We are all oligarchs to each other, and we would notbe much of a civilization if we were not. One of the central questions for legalethics theory is whether there is any principled way to determine when thissort of private oligarchishness is justified.

    85 Goldman, supra note 47, at 129.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    32 AYERS [11-Aug-11]

    It is also possible, however, to interpret Wasserstromsclaim as a claim about individual circumstances. Understood this

    way, it would go something like this: A lawyer who exercises themoral trump is, in that particular situation, acting like anoligarch. The lawyer diminishes a specific individuals autonomy,rather than diminishing the collective good of society-wide respectfor autonomy.

    Tim Dare appears to make both versions of the oligarchy-of-lawyers claim, First, Dare says that lawyers who calibratetheir efforts according to their own view of the good privilegetheir view and disenfranchise the view of the client. This is theindividual version of the claim.86 Second, Dare says that suchlawyers undercut the strategy by which we (meaning our society)secure community between people with divergent views.87 This isthe aggregate version of the claim.

    B. Indirect Strategies

    The promotion of good consequences, whether they areaggregate or individual, sometimes requires indirect strategies.It is often true that when we seek to promote a good consequencewe are more likely to succeed if we do not directly aim at it.When Hamlet says, I must be cruel only to be kind, 88 he meansthat he must cruelly tell his mother the truththat her husbandis a murdererto allow her to redeem herself.89 Being kind at

    86 David Luban makes an argument related to this one when he claims thatpaternalistic lawyers infringe their clients dignity by riding roughshod overtheir clients deep commitments. DAVID LUBAN, Lawyers as Upholders ofHuman Dignity (When They Arent Busy Assaulting It), in LEGAL ETHICS ANDHUMAN DIGNITY65, 76 (2007).

    87 Dare, supra note 29, at 74.

    88Hamlet III.iv.178. Hamlet is also echoing the pun on kind thatappeared in the first line he speaks in the play, A little more than kin, andless than kind. Hamlet I.ii.65. In this sense, Hamletwho has accidentallykilled the innocent, if annoying, Poloniusmay also mean that he has to becruel in general in order to be a good son to his father, because a good sonwould go cruelly about the business of avenging his fathers death.

    89 As A.C. Bradley writes, Her only chance was to be made unhappy. A.C.Bradley, SHAKESPEAREAN TRAGEGY137 (1904, repr. 1962).

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    this moment would mean keeping silent, but that would not bekind in the long run.

    As a society, we adopt an indirect approach to thepromulgation of good ideas when we embrace the marketplace-of-ideas justification of free speech.90 Thus, Oliver Wendell Holmesargued that the ultimate good desired is better reached by freetrade in ideas than by censorship, because the best test of truthis the power of the thought to get itself accepted in thecompetition of the market.91 He sought to promote the goal ofreducing the number of bad ideas in circulation by allowing badideas to circulate freely.

    Claims about indirect strategies are very common in legalethics.92 Many writers claim, like Stephen Lubet, that lawyersprovide a widespread social benefit by single-mindedlyrepresenting individual interests.93 In other words, lawyerscollectively promote good consequences by aiming at things otherthan those consequences.

    As Arthur Applbaum observes, when we adopt an indirectstrategy for the promotion of good social consequences, it isimportant to specify the mechanism by which we think thoseconsequences will indirectly come about.94 In the case of free

    speech, the mechanism is the testing of ideas by their ability toachieve widespread acceptance in society. In the case of legalethics, a related mechanism is sometimes thought to operate.

    The adversary system is an obvious example of an indirectstrategy for promoting good consequences that figures

    90See John Stuart Mill, ON LIBERTY, ch. II.

    91 Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J.,dissenting).

    92See David Wasserman, Should a Good Lawyer Do the Right Thing?David Luban on the Morality of Adversary Representation, 49 MD.L.REV. 392,401 n.49 (1990).


    94 Applbaum, supra note 51,at 170-180. Applbaum claims that when anindirect strategy involves harm to others, we should treat it as presumptivelywrong. Id. at 177-79.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    34 AYERS [11-Aug-11]

    prominently in legal ethics. On many accounts, the adversarysystem is supposed to produce accurate verdictsa good

    consequenceby allowing litigants to aim at their preferredoutcome rather than the outcome that is impersonally orobjectively best.95 The lawyers are not supposed to aim at thetruth; they are supposed to aim at presenting the best version ofthe case for their clients position. They help the court reach thebest conclusion not by tryingto help the court reach the bestconclusion but by ensuring that the best available arguments forboth sides are made to the court. They aim at one thing toaccomplish another. Adversary advocacy, on this account, is anindirect way of promoting the desirable consequence of accurate

    verdicts.Indirect strategies for promoting collective goods can lead to

    arguments that take a strange shape. Legal ethicists sometimesargue that lawyers should do something because of a collectivegood even when that collective good is plainly not at issue in thespecific situation.96

    An example is the recent controversy over the law firm King& Spaldings disavowal of its representation of the House ofRepresentatives in a high-profile case involving the federal

    Defense of Marriage Act (DOMA).97

    In February 2011, theUnited States Department of Justice announced that it would notdefend the constitutionality of section 3 of DOMA, which preventsthe federal government from recognizing the validity of same-sexmarriages.98 In response, the House of Representatives hired

    95See Luban, supra note 76, at 69-73.

    96 William Simon argues that lawyers end up demoralized because of suchindirect strategies. He argues that the connection between the practical tasksof lawyering and the just outcomes that are supposedly brought about by

    those tasks is so attenuated that it requires a deferral of ethical gratificationthat is painful for practitioners. Simon, supra note 6, at 2. The problem asSimon sees it is that lawyers are forbidden from pursuing the valuejusticethat provides the justification of their role. Id. at 1-2.

    97 Pub.L. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7 and 28U.S.C. 1738C.

    98 Mark Ambinder, Obama Won't Go to Court Over Defense of Marriage Act,NATL.J., Feb. 23, 2011.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    Paul Clement, then a partner at King & Spalding, to defend it. 99Some gay-rights advocates condemned the firm for defending

    DOMA. The president of the Human Rights Campaign said thefirm was aiding and abetting an effort to score cheap politicalpoints on the backs of same-sex couples.100 Not long afterwards,King & Spalding disavowed the decision to defend DOMA, sayingthe firms vetting process had been inadequate.101 In response,Clement resigned from the firm, writing that a representationshould not be abandoned because the client's legal position isextremely unpopular in certain quarters. Defending unpopularpositions is what lawyers do.102

    Both the popular debate and the scholarly debate aboutthese events focused on what consequences might flow from them.

    All parties to the debate assumed that DOMA was an unjust law,and so this article will proceed on that assumption as well.Readers who do not share that view are asked to substitute a lawthey view as suitably odious.

    An editorial in the L.A. Times invoked the aggregateconsequences of adversary advocacy, saying that Clements criticsmisunderstand[] the adversarial process.103 The editorialargued that with sharp-witted counsel on both sides making the

    strongest possible arguments, it is more likely that justice will bedone.104 Invoking a different kind of consequence, it also arguedthat a lawyer who defends an individual or a law, no matter howunpopular or distasteful, helps ensure that the outcome is viewedas fair.105

    99 Aaron Couch,DOMA: Republicans lose big-money law firm but keep keylawyer, CHRISTIAN SCIENCE MONITOR, Apr. 25, 2011.

    100 Quoted inDefending a bad law, editorial, L.A.TIMES, Apr. 21, 2011.

    101 Couch, supra note 99.

    102 Deborah Rhode,King & Spalding Was Right to Withdraw, Natl L. J.(May 3, 2011). Letter on file with author.

    103Defending a bad law, supra note 100.


    105Id. The editorial specifically tied its argument about public acceptanceof judicial outcomes to the specific case at issue, arguing that [i]f DOMA is

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    36 AYERS [11-Aug-11]

    A debate among legal ethicists focused on a different kind ofconsequence. Stephen Gillers argued that King & Spaldings

    timidity here will hurt weak clients, poor clients, and despisedclients.106 Deborah Rhode, arguing that it was fair to criticizeClement for agreeing to represent DOMA,107 pointed out that theRepublican leadership [of the House] is scarcely weak or poorand was hardly prejudiced by this decision.108

    The argument between Gillers and Rhode concerns theindirect consequences of the firms behavior. Rhode is of coursecorrect that the Republican leadership of the House ofRepresentatives is neither weak nor poor. But presumably thatwas not Gillerss point. Gillers was invoking aggregateconsequences, not the specific consequences of Clements choice.It is better for all of us, the argument goes, to live in a society inwhich unpopular clients are able to find representation, andunpopular positions receive their day in court. In order topromote this state of affairs, it is necessary for lawyers to adoptan indirect strategy. Lawyers must represent even those viewsthey are sure are unjust. The argument is, in short, that it wasgood for Clement to defend DOMA because society is better offwhen lawyers in the aggregate do what Clement did.

    The pro-Clement position makes sense only as an argumentabout the indirect promotion of aggregate consequences, ratherthan their direct promotion. The specific collective good atissuethe ability of unpopular views to find legalrepresentationwas never at stake in Clements individualchoice. Clement did not save the House from goingunrepresented; he saved it from having to make another phonecall or two. The chances of the House failing to find counsel todefend DOMA were precisely zero. And the House ofRepresentatives is not, in any meaningful sense, unpopular. It is

    struck down, the fact that it was defended effectively will make the victory forits opponents more credible. Id.

    106 Quoted in Michael D. Shear and John Schwartz, Law Firm WontDefend Marriage Act , N.Y.TIMES, Apr. 25, 2011.

    107 Rhode, supra note 102.


  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    impossible to gain control of the House without achieving at leasta substantial level of popular support.109

    Clements defense of DOMA cannot be defended with anargument that it directly ensures that unpopular views arerepresented. Rather, Clements defenders will have to argue thatClements choice was part of an indirect strategy of promotingthat collective good. It is better that Clement not try to rejectunjust clients, the argument would go, because there will be badconsequences for our society if lawyers generally rejected clients

    they thought were unjust. This argument has the right shape.But there is a hole in the middle of it.

    C. The Gap

    Many legal ethicists claim that lawyers can bring aboutdesirable aggregate consequences through various indirectstrategies. It is obviously appropriate to address claims of thiskind to a policy-maker. Anyone drafting rules that are to governlawyers behavior, for example, is necessarily interested in theaggregate consequences of lawyers choices. But complicationsarise when we address claims about aggregate consequences toindividual practitioners.

    Part I.C of this article argued that the practitionersperspective is best understood in terms of practical reasons.Claims about what individual lawyers should do are claims aboutwhat lawyers have most reason to do. The challenge for legalethicists is to help lawyers identify which considerations shouldcount as reasons for them to choose or not choose a particularaction. A claim about aggregate consequences, when addressed toan individual practitioner, is a claim that the aggregate

    consequences of a particular choice give the practitioner reasonsto choose or reject one of the available alternatives.

    109 True, members of the House need maintain only the support of aplurality of voters in gerrymandered districtsbut this is still a kind ofpopularity.

  • 8/2/2019 Lawyer's Perspective - Draft 5.4


    38 AYERS [11-Aug-11]

    As David Wilkins explains, it is important not to confuse theperspective of the system-designerthe policy-makerand thepractitioner when we talk about consequences.110 If lawyers inthe aggregate begin to reject certain kinds of fundamental norms,the system will likely collapse.111 That is the policy-makersconcern. But for an individual lawyer, a single act ofnullificationthat is, an act which does not follow the norms thatapply to lawyers generallyposes no such threat.112

    For example, Gillerss claim about the King & Spaldingaffairunderstood from the lawyers perspectiveis that

    (1) lawyers willingness to defend unjust laws helps ensurerepresentation of the poor and the weak; and (2) this fact givesKing & Spalding a reason not to withdraw from defendingDOMA. There is a gap in this claim.

    It might be thought that the problem with Gillerssargument is that the House of Representatives is neither poor norweak. But there is nothing inherently implausible about indirectstrategies for pursuing collective goods. We might agree with

    Arthur Applbaum that anyone advocating an indirect strategywhich harms people should be careful to specify just how their

    strategy works.113 Someone who defends an unjust law in thename of justice can reasonably be asked to identify themechanism on which their strategy depends. But there is nothingwrong with the form of the argument.

    110 David Wilkins, Legal Realism for Lawyers, 104 HARV.L.REV. 468, 508-509 (1990).

    111Id. at 513. Wilkins is specifically discussing William Simons claim thatlawyers should try to promote just outcomes in specific cases. It is not clear

    whether Simon believes that lawyers should ignore aggregate consequences.On one hand, Simon claims that the lawyer should take such actions as,considering the relevant circumstances of the particular case, seem likely topromote justice. Simon, supra note 6, at 9 (emphasis added). But it may beplausible to interpret the relevant circumstances of the particular case asincluding the aggregate consequences of the kind of decision at issue.

    112 Wilkins, supra note 110, at 511-13.


  • 8/2/2019 Lawyer's Perspective - Draft 5.4



    The problem, rather, is that the argument from aggregateconsequences to lawyers practical reasoning commits what is

    sometimes called the fallacy of division.114 It assumes that iflawyers as a group should do X, it must be true that anyindividual lawyer should do X. But that is not necessarily so.

    There are many cases in which it is true that a group ofpeople should do something, but false that an individual memberof the group should do that thing. For example, it might be truethat law firm partners in general should not overwork theirassociates.