Structure and Integrity
31 Pages Posted: 29 Sep 2008 Last revised: 30 Oct 2008
Date Written: October 1, 2008
In this Review Essay of David Luban's Legal Ethics and Human Dignity, I argue that although Professor Luban has not had much to say until now about "structural" concerns - namely, how lawyers' locations within institutions that organize access to power shape or should shape those lawyers' conduct - in his most recent work, another approach slips in as a supplement to his individualist framework. In this emerging supplement, structural concerns become increasingly important. Although individual integrity continues to matter most in Professor Luban's world view, it increasingly matters in the context of structural relations in which lawyers' ethical duties to particular clients vary. Individual clients facing powerful institutional adversaries deserve client-centered representation, but lawyers representing impersonal and powerful institutions have different ethical responsibilities. In general, Professor Luban approves most of lawyers' work involving the protection of the less powerful against those who would exercise power to cause others great harm.
I discuss several important implications of this shift in perspective, focusing especially on tough questions that arise in thinking about lawyers' ethics in the face of chronic conditions of institutional injustice. Combined with a structuralist supplement, the analysis in Legal Ethics and Human Dignity points to key questions about how to design institutional mechanisms that protect and respond constructively to dissent. Legal Ethics and Human Dignity also compels us to think about these questions in the context of government lawyering, where questions of lawyers' ethical conduct within institutional constraints have become especially pressing today.
Keywords: Legal ethics, legal profession, individualism, structuralism, government lawyers, David Luban
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