30 Pages Posted: 24 Jun 2010 Last revised: 22 Mar 2012
Date Written: June 23, 2010
In the practice of law, to what extent and in what ways are law and morality separate? In what ways can they best be integrated? This essay responds to William Simon’s critique of what he sees as too sharp or strong a separation between the two in contemporary theories of lawyers’ ethics. In “Role Differentiation and Lawyers’ Ethics” (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1496988, previously posted under the title “Moral Freaks: Lawyers’ Ethics in Academic Perspective”), Professor Simon uses some of my prior work as a paradigm example. In this response I suggest that our disagreement is not so much about the degree or sharpness of the separation between law and morality as it is about the manner in which they ought to be integrated in the day to day practice of law. Professor Simon’s essay, this response, and a response by Daniel Markovits will be published in a forthcoming issue of the Georgetown Journal of Legal Ethics.
In my view, Professor Simon’s understanding gives insufficient respect to the client and fails to appreciate moral dialogue and deliberation with the client as crucial to the ethics of lawyering. Part I of this essay describes the process I think most effectively integrates morality into the practice of law. The function of the legal profession is to provide access to “law” as broadly understood. The lawyer should provide information and assistance to the client in understanding the law, how it may affect her, and her legal options. Ordinarily it is appropriate for the lawyer to assist the client in lawful uses of the law, or in responding to the uses of the law by others. When the client’s possible use of the law is morally problematic, however, the lawyer should inform her of this potential problem and deliberate with her concerning the available options and their arguable moral significance. The choice as to how to proceed is primarily the client’s, subject however to the lawyer’s moral influence and counsel. Part II outlines and criticizes Professor Simon’s quite different recommended approach. Part III provides a limited, more targeted response to several of the arguments made in Simon’s essay. Part IV analyzes the application of the Model Rules to the “mistake of law” scenario, Professor Simon’s primary example, reaching a different conclusion than does he. Part V briefly turns to a quite different understanding: neo-Aristotelian or virtue ethics are briefly explored in relation to the questions considered. For purposes of illustration and clarity, several examples are presented and considered throughout the discussion.
Suggested Citation: Suggested Citation
Pepper, Stephen, Integrating Morality and Law in Legal Practice: A Reply to Professor Simon (June 23, 2010). Georgetown Journal of Legal Ethics, Vol. 23, p. 1011, 2010; University of Denver Legal Studies Research Paper No. 10-19. Available at SSRN: https://ssrn.com/abstract=1629391