60 Pages Posted: 3 Feb 2005
The debate over whether it serves or undermines the interests of justice for lawyers to temper the zeal of their advocacy based on considerations of morality or justice has largely been polarized between two camps: traditionalists and moralists. Traditionalists defend the amoral role of lawyers, arguing that lawyers should remain moral neutral in their representation of clients. Moralists propose alternative social justice lawyering models, which urge lawyers' morally engagement in their choice of clients, their interpretation of law, and their counseling of clients.
This article revisits the debate by recasting the question at its center. Instead of inquiring what a lawyer should do when asked to assist an immoral client, it asks what a lawyer should do when asked to assist a client with whom the lawyer fundamentally morally disagrees. By shifting the question, this article focuses attention on a subject that has been largely missing from the debate among lawyering theorists: the challenge of moral pluralism. Moral pluralism has been widely discussed in political and moral philosophy, but its implications for lawyering theory have been less fully explored. This article explores those implications by surveying what political and moral theorists say about the sources of moral pluralism, and demonstrating how those explanations lead to the creation of an internal moral perspective. The article then uses this analysis to examine the shortcomings of both the traditional model of morally neutral lawyering, and the alternative social justice lawyering models, in the face of moral pluralism. The shortcomings of each model are illustrated by applying each model to a hypothetical lawyer-client relationship in which a lesbian couple, hoping to duplicate the legal protections of marriage for the child they plan to parent together, seeks legal counsel from a lawyer who is morally opposed to homosexuality.
The better alternative, proposed in this article, is to view fundamental moral disagreements as moral conflicts of interest, subject to the same protections for clients that traditional conflicts of interest entail. Although the building blocks for a moral conflict of interest analysis are already present in professional standards, the bar has been reluctant to fully embrace the idea of moral conflicts of interest. Underlying the bar's reluctance is a concern that permitting lawyers the prerogative of moral abstention will deleteriously affect representation for politically unpopular clients. However, the existence of moral pluralism also alleviates the concern that lawyers will act in moral concert, thus eliminating the logical aspects of the last lawyer in town problem, and leaving only logistical concerns with the provision of legal counsel.
Keywords: Legal ethics, moral pluralism, lawyering theory, political theory
Suggested Citation: Suggested Citation
Kruse, Katherine R., Lawyers, Justice and the Challenge of Moral Pluralism. Minnesota Law Review, Vol. 90, No. 2, Forthcoming. Available at SSRN: https://ssrn.com/abstract=658601