The Rule of Law and Legal-Process Reasons in Attorney Advising

Abstract

This is an intervention in long-standing debates in the philosophy of law and the theory of professional ethics. In jurisprudential terms, it elaborates on H.L.A. Hart's concept of the internal point of view, which is the perspective of one who views the law as creating obligations, not merely affecting one's prudential calculations. In other words, Hart's idea is that the law must be capable of normativity. Hart limited this conceptual requirement to judges, who are obligated to take the internal point of view, leaving a deeply important open question concerning the attitude that citizens and their advisors must take with respect to the law. The argument in this Article is that it is a constitutive principle of the professional obligations of lawyers that they regard the law from the internal point of view. From this obligation flow further, more specific duties of good faith in interpretation of the law. The Article therefore connects scholarship on the nature of law with more practical questions concerning the duties of lawyers advising clients. It provides an analytically rigorous approach to evaluating the conduct of lawyers in high-profile scandals such the Panama Papers revelations, the so-called torture memos prepared by lawyers in the Bush Administration, and Acting Attorney General Rod Rosenstein's memo explaining the firing of FBI Director James Comey. The position defended here differs from both the Nineteenth Century "wise counselor" conception of lawyer professionalism and the standard conception of legal ethics as "zealous advocacy within the bounds of the law." It is in some ways an elaboration on some of my previous scholarship on legal ethics and interpretation of law, but is grounded much more explicitly not only in Hart's notion of the internal point of view but - perhaps surprisingly - also in Lon Fuller's insight that law is a purposive activity characterized by giving reasons of a certain type in justification of one's actions.

Keywords: rule of law, legal process, Lon Fuller, H.L.A. Hart, professionalism, interpretation