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Role Differentiation and Lawyers’ Ethics: A Critique of Some Academic Perspectives [formerly titled: Moral Freaks: Lawyers’ Ethics in Academic Perspective]

25 Pages Posted: 31 Oct 2009 Last revised: 27 May 2010

William H. Simon

Columbia University - Law School; Stanford University - Stanford Law School

Date Written: May 22, 2010

Abstract

Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error. I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older jurisprudential tradition in which legal ethics is more convergent with ordinary morality.

Suggested Citation

Simon, William H., Role Differentiation and Lawyers’ Ethics: A Critique of Some Academic Perspectives [formerly titled: Moral Freaks: Lawyers’ Ethics in Academic Perspective] (May 22, 2010). Georgetown Journal of Legal Ethics, 2010; Columbia Public Law Research Paper No. 09-215. Available at SSRN: https://ssrn.com/abstract=1496988

William H. Simon (Contact Author)

Columbia University - Law School ( email )

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Stanford University - Stanford Law School ( email )

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