48 Pages Posted: 13 Aug 2008 Last revised: 10 Jul 2009
Date Written: ,
This Article focuses on a set of legal ethics rules that encourage lawyers not to take the demands of role too far. These require or expect lawyers to act in the same way as other moral individuals when systemic conditions do not demand a departure from ordinary behavior. Following these "integrity rules" is not essential for a lawyer to perform well; indeed, sometimes obeying the rules will hinder performance. At their core, the rules suggest that lawyers do not shed the obligation to behave ethically - and should not even adopt a position of amorality - just because they are members of the bar.
Distinguishing integrity rules from rules of role is important for the broad normative debate over what legal ethics is, and should be, about. It may also have consequences for how the subject of professional responsibility is taught. But the Article focuses primarily on how conceptualizing ethics rules as consisting of both rules of role and integrity rules can help code drafters craft ethical regulation more coherently.
The Article's framework is useful with respect to three aspects of ethics regulation that have never received adequate attention from code drafters or scholars: (1) whether and when particular legal ethics provisions should be enforced through discipline; (2) how professional regulation interacts, or should interact, with other law governing lawyers; and (3) when lawyers and clients may contract around ethics requirements. The Article provides a methodology for thinking about ethics regulation in a way that facilitates meaningful conclusions about the enforceability, independence, and defeasibility of particular rules.
More generally, the Article provides both a descriptive and prescriptive reassessment of legal ethics codes. It suggests an understanding of professional regulation that honors traditional role requirements for lawyers, but also meshes with lawyers' personal sense that they ordinarily do not act immorally, or even amorally, in their professional behavior. The Article illustrates that the legal ethics codes are, and should be, designed to ensure that lawyers behave as ordinary human beings would behave if they were put into the same position as lawyers and understood the demands upon them.
Keywords: role-ethics, professional ethics, legal profession, advocacy, adversry system
JEL Classification: K00, K10
Suggested Citation: Suggested Citation