Ethics

If you haven't read Brad and Alice's new paper, Legal Ethics and Moral Character, you should.  It offers a promising new angle into some of the familiar arguments about the lawyer's role, and it's an angle that warrants further exploration.  I need to think a lot more about their analysis, but one reaction I have is to question some of the assumptions they seem to make in moving from theory to attribute.  In particular, they appear to equate a willingness to stand up to a client or firm with an individualist ethic.  For example,

[William] Simon's lawyer is, in a word, a maverick.  She is confident in her own judgments, disinclined to defer to institutional authority and procedures, and willing to ruffle feathers.  (p 20)

[David] Luban's ideal lawyer bears some relationship to Simon's, in that she is willing to make, and capable of making, complex multifactorial judgments about what she ought to do, with relatively little reliance on roles, rules, or the directives of institutional authorities.  She must be highly -- perhaps even radically -- individualistic in her approach to decision-making. (p 26)

I agree that the approaches of both Simon and Luban require a lawyer who is willing to ruffle feathers and a willingness to look beyond professional role constraints, at least as those constraints are interpreted under the dominant paradigm.  But why does that mean that the ideal lawyer is individualistic in her approach to decision-making?  The ideal lawyer is operating under a moral framework that takes precedent over the legal profession's moral framework, but why should we assume that the former is individualistic, whether in terms of its substantive claims or the process by which the implications of its claims are discerned?  Perhaps, by importing (or extending) a competing moral framework to her professional role, the ideal lawyer is finally able to live out her relational framework more fully.  For example, Tom Shaffer's ideal lawyer has a lot in common with Luban's, but no one could label Shaffer's lawyer "individualistic" in her approach to decision-making.  It is all about allowing the lawyer's overarching moral commitments -- which include commitments derived from membership in a particular community -- to shape her work as a lawyer.  I may be misreading Alice and Brad (and if so please correct me), but this strikes me as an important point: lawyer-individualism is not the only alternative to prevailing professional norms.  Sometimes professional norms can be "radically individualistic" -- both in terms of the substance and methodology of the lawyer's decision-making -- and the "maverick" may in fact be bringing a more robust vision of our social nature into the process.

That said, this is an important paper offering a fresh look at legal ethics discourse.