What if Legal Ethics Can't Be Reduced to a Maxim?
58 Pages Posted: 22 Jul 2012 Last revised: 11 Jul 2013
Date Written: July 20, 2012
Most theories of legal ethics try to identify a maxim for lawyers to follow, like “act zealously within the bounds of law” or “do what will best promote justice under the circumstances.” But these maxims fail to capture the ethical complexity of lawyering.
Legal ethics can’t be reduced to a maxim unless the ethical world of lawyering can be reduced to a single value. If justice were the only value at stake, then it would be right for lawyers to follow the maxim “promote justice.” But there are multiple values at stake in the practice of law. No maxim can tell lawyers how to reconcile conflicts between genuine values like justice, autonomy, and political legitimacy. Instead of trying to identify maxims that lawyers can use to resolve ethical dilemmas, legal ethics scholars should try to understand the virtues and skills that make it possible to act admirably when values conflict. Among these is the capacity to tolerate ethical tension — to keep struggling, when faced with an apparent dilemma, to find a third way out.
Maxims are guidelines for choice; they implicitly assume that lawyers must choose between two given options. But it’s often better to keep searching for another option. Instead of showing lawyers how to solve ethical dilemmas, we should try to help lawyers fight them. Refusing to apply any maxim can be an act of virtue.
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