The Lawyer’s Perspective: The Gap Between Individual Decisions and Collective Consequences in Legal Ethics
Andrew B. Ayers
Office of the Solicitor General of New York
36 J. Legal Prof. 77 (2011)
Legal ethicists often make arguments about what will happen if lawyers in general behave in a certain way. They sometimes assume that these arguments about the collective consequences of lawyers’ actions can help individual lawyers decide what they have most reason to do. But collective consequences are not necessarily reasons for individual lawyers to choose one action over another.
To understand why arguments from collective consequences sometimes fail, it is important to understand two ways of looking at legal ethics. The first is the policy-maker’s perspective. Policy-makers are necessarily concerned with collective consequences, because legal rules and social norms operate generally. But individual practitioners do not make decisions about what lawyers collectively 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 that unpopular views are represented in court. But my individual decision to turn away an unpopular client will not undermine that value.
One solution to this problem is for lawyers to find intrinsic value in the kinds of actions which, in the aggregate, promote good consequences. Legal ethicists should aim to help lawyers understand how it can be intrinsically valuable for them to act in certain ways even when their individual choices will not affect collective goods. But intrinsic value can be understood only from the lawyer’s perspective.
Number of Pages in PDF File: 61
Keywords: legal ethics, intrinsic valueAccepted Paper Series
Date posted: March 13, 2011 ; Last revised: July 21, 2012
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