Ethics

I have had posted A Critique of Philosophizing About Lawyers' Ethics on SSRN. Here is the abstract:

In a recent article Professor William Simon wrote yet another critique by a moral philosopher about role differentiation as the source of all that is wrong with the ethics of practicing lawyers. The criticism is that lawyers, acting in their profession role, do things that they would not otherwise do as a matter of ordinary morality. Since Simon is one of the leading and most highly regarded of the legal ethics philosophers, I use this article for my own critique of the philosophical attacks on the alleged immorality of practicing lawyers. In brief, Simon?s conclusion is erroneous, and his analysis is demonstrably wrong in its factual and legal premises.

In the world of real lawyers and real clients, ?role differentiation? refers to a fiduciary relationship in which the lawyer promises the client to take all reasonable lawful means to attain the objectives of the client. This promise is an inescapable part of any meaningful moral analysis, but is typically ignored by philosophical ethicists. Also, lawyers function under ethical rules, many of which reflect ordinary morality, and violation of those rules can result in serious professional sanctions and malpractice liability. Those rules and that potential responsibility should not be ignored in proposals for radical changes in how lawyers serve their clients. In addition, lawyers in the United States are subject to a constitutionalized adversary system which defines and limits their professional responsibilities in fundamental respects. When moral philosophers ignore these practical concerns, they produce articles and books that have no significance in the world of real lawyers and real clients.

My point is not that the rules of lawyers? ethics are not in serious need of reform from a moral perspective. On the contrary, more practical moral criticism is badly needed. One of the reasons for my impatience with the work of the philosophical ethicists is that their moral sensitivity and keen intellects could be put to use to bring about much needed improvement in the ethics and practice of lawyers and judges.

[editor's comment: John Steele added the link and, to avoid confusion over where to find the paper, deleted two sentences written by Monroe.]