Beyond Cardboard Lawyers in Legal Ethics
University of Denver Sturm College of Law
Russell G. Pearce
Fordham University School of Law
June 11, 2012
Legal Ethics, Forthcoming
Fordham Law Legal Studies Research Paper No. 2082298
U Denver Legal Studies Research Paper, No. 12-20
In his thought-provoking book, Lawyers and Fidelity to the Law, Bradley Wendel offers an understanding of the lawyer’s role grounded in political philosophy as an alternative to the contrasting perspectives of the neutral partisan and the morally responsible lawyer. Wendel explains that law provides a “coordinating function” that allows “citizens to cooperate on common undertakings” and “makes stability, coexistence, and cooperation possible in a pluralistic society.” In their role as “political officials,” lawyers make the legal system work when they show fidelity to law by zealously assisting clients in pursuing their legal entitlements, but not their interests as Holmesian bad men.
Fidelity has generated great interest and many of the leading thinkers in the field have engaged with its insights. Some commentators question Wendel’s great faith in the law and obedience to it. Others challenge his commitment to fidelity to the law to the exclusion of common morality. While we share some of these debates regarding whether the law warrants the kind of fidelity Wendel envisions, we focus in this review on Fidelity’s conception not of law but of lawyers.
While Wendel makes an important contribution to the field of legal ethics, his theory does not fully address either the relational reality of lawyers’ work or the contrary – and dominant – belief that lawyers and clients are, and are best understood as, atomistic individuals who are autonomous actors. We argue that lawyers who understand both their clients and themselves as autonomously self-interested actors are likely to construe clients’ entitlements broadly, and consequently in good-faith collapse the view of fidelity into the “standard conception” of the lawyer as a neutral partisan which Wendel seeks to replace. Furthermore, in instances in which the law (and fidelity to it) runs out, such as when the law would permit a client to pursue alternative courses of conduct, fidelity to the law is disappointedly agnostic and silent, leaving practicing lawyers with little guidance as to how to counsel and represent their clients. Lawyers are therefore likely to fill this gap with guidance from the dominant culture of autonomous self-interest. Accordingly, a new perspective on lawyers’ role that would bridge the gap between the reality of lawyers’ work and the dominant culture of autonomous self-interest would need to offer a more comprehensive account of lawyers and clients as relational actors.
Number of Pages in PDF File: 19
Date posted: June 12, 2012 ; Last revised: June 26, 2012