Zeal on Behalf of Vulnerable Clients

Abstract

Legal ethicists frequently debate how far lawyers can, should, or must go on behalf of their clients. This Article argues that client vulnerability should influence the analysis. Consideration of vulnerability threatens the principle of neutral partisanship, which mandates the exercise of zeal regardless of clients’ social position or moral standing. Rationing zeal based on an assessment of vulnerability could allow lawyers to dispense their assistance based on their own assessments of deservingness. Yet lawyers already ration their efforts based on judgments they make. They ration between the clients they accept and the potential clients they reject. They ration less directly but no less importantly when they establish fees and other barriers to service. Given that lawyers’ zeal is already rationed, factors other than purchasing power should influence the distribution, and substantive equality requires foregoing neutral partisanship for heightened zeal on behalf of vulnerable clients. This Article proposes three vulnerability factors that justify the use of heightened zeal: (1) the absence of market power to purchase legal representation; (2) the absence of political power to shape law; and (3) the presence of basic human needs.

Keywords: legal ethics, legal profession, critical theory, poverty law, inequality