The Lawyer Knows More than the Law
19 Pages Posted: 13 Feb 2012 Last revised: 20 Mar 2012
Date Written: February 10, 2012
This is a review of Brad Wendel’s Lawyers and Fidelity to Law to be published as part of a small collection of such reviews, including a response by the author, in a forthcoming issue of the Texas Law Review. Professor Wendel grounds his theory of lawyers’ ethics on a straightforward understanding of the function of law. In this view, law allows for cooperation and coordination among people with differing interests and, more importantly, with differing moral and political beliefs, conclusion and commitments. Law provides a mechanism for the provisional settlement of such disagreement and creates a framework for moving forward despite underlying and possibly fundamental background disagreement. This premise leads directly to two conclusions on which Wendel disagrees with many other theorists and practicing lawyers. First, lawyers’ ethics should not consist of applications of ordinary morality. The law, however imperfect it might be, has settled those questions. Second, lawyers should provide to their clients a relatively limited and circumscribed understanding of law. They should provide access to the law as objectively understood, not as manipulated or distorted to serve the client’s particular purposes or situation. This review provides a critique of each of these positions, articulating an understanding of lawyers’ ethics which accepts Wendel’s view of the basic functions of law, but draws quite different conclusions based on the lawyer’s function in connecting the application of law to the specific situation of the client. It considers several examples to illustrate the differences in approach and conclusions.
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