42 Pages Posted: 15 Feb 2021 Last revised: 24 Feb 2021
Date Written: February 3, 2021
The Lincoln Project’s effort to shame law firms working on behalf of the Trump campaign is only the most recent example of the public criticism, even vilification, directed against lawyers who represent unpopular clients. The legal profession is mostly unified in its response, which appeals to values such as due process, fairness, and the right to counsel. On the other hand, many scholars contend that lawyers should be morally accountable for actions they take as professionals, since everyone remains a moral agent, even when acting in an institutional role. This Article argues that, contrary to the near-unanimous view of lawyers, lawyers are subject to accountability for the clients they represent. In many cases, they have a complete normative defense. The social value of legality is a weighty, but not conclusive justification for providing zealous representation to even the worst clients. However, these role-based considerations do not displace ordinary morality from the field altogether. Ordinary morality persists, and in some cases can produce justified self-evaluations, or ascriptions to others, of regret, guilt, or shame. Building these “moral remainders” into professional ethics can help resist cynicism, amoralism, and alienation of professionals from the resources of morality.
The structure of the Article is as follows: Section II provides an overview of the well-established popular ethics of lawyer shaming, developed through iterated arguments and counterarguments in public discourse, many of which refer to both law and the history and tradition of the profession’s commitment to representing unpopular clients. It also briefly considers whether lawyer shaming should be disfavored because it is an aspect of “cancel culture,” assuming it is possible to reach some understanding of what that term means. Section III contains the principal normative analysis in the Article. The dominant approaches to role morality have emphasized a strategy of exclusion or outweighing in either direction. Many moral philosophers prefer to see role obligations as continuous with ordinary morality, and grant relatively little weight to rights and duties that arise in connection with an institutional role. That would mean that lawyers remain fully subject to moral accountability, on the same terms as anyone else, for their decision to provide assistance to a client’s antisocial projects. On the other side, some philosophers and most practicing lawyers see professional role obligations as displacing ordinary morality from the field altogether. What this strategy achieves by way of creating a tidy normative landscape it gives up by failing to account for the phenomenology of professional morality, which includes justified reactive attitudes of regret, guilt, and shame. Section IV then considers how theoretical legal ethics should handle criticism of lawyers based on the clients they represent. In most cases, lawyers are justified in providing zealous representation, even to terrible people. However, it is not as simple as pointing to the constitutional right to the assistance of counsel in criminal defense matters. The relationship between the moral agency of any person acting in an institutional or professional role, on the one hand, and the moral reasons that would apply in the absence of the role, is not a straightforward one of separate or exclusionary normative domains.
Keywords: Legal ethics, role morality, dirty hands
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