A Rejoinder to Professors Kaufman and Luban

Abstract

Professor Pepper responds to Professor Luban's and Professor Kaufman's critiques of his defense of the lawyer's traditional amoral ethical role. While agreeing with much of Professor Kaufman's observations ("A Commentary on Pepper's 'The Lawyer's Amoral Ethical Role'"), Professor Pepper suggests why a guiding theory (a model) and rules for lawyer's ethics may be preferable to generally unguided discretion. In regard to Professor Luban's "The Lysistratian Prerogative: A Response to Stephen Pepper," the rejoinder suggests that friends and spouses are the wrong analogy for the lawyer's relation to the client. Lawyers are more appropriately thought of as part of the formal regime enabling access to and use of the law. Friends and spouses are not. They are more appropriately thought of as part of the more important and probably more effective informal net of restraint and judgment surrounding each of us. For that reason lawyers ought not to deny access to lawful conduct and legal devices to their clients on the basis of their varied personal and possibly idiosyncratic moral bases. For spouses and friends to do so, however, is perfectly appropriate and often admirable and helpful. Professor Pepper goes on to argue that Professor Luban's construct of "low realism" essentially avoids the difficult issue of legal realism for lawyers elaborated in his article rather than addressing it.