These pages present a philosophical argument about legal ethics. Although this general approach to legal ethics is a common one, the specific form of the argument that follows is unusual and warrants some comment. In particular, the argument does not attempt (at least not as its primary goal) to say whether the present regime of legal ethics--the law governing lawyers as it stands-is justified or wrongheaded, nor does it attempt to say what ethical principles should ideally govern the professional conduct of lawyers. Instead, the argument takes the present regime (or some recognizable variation of this regime) as given and employs philosophical analysis to explain the moral condition of lawyers who practice under this regime. My aim is to develop an account of what it is like-of what it is like not psychologically but ethically--to practice law under the present regime, with a special emphasis on the moral tensions that practicing lawyers face. In this sense, my argument proceeds not from the point of view of the philosopher (or policy-maker) who stands outside the system of legal ethics as it is, but instead develops the point of view of the lawyer practicing within this system. Hence my title.
In taking this approach, I am seeking to interpret the law rather than, as yet, to change it. This is nowadays itself something of an unusual ambition. Ever since the realist revolution exploded the formalist myth that legal rules are connected to one another by logic and are independent of the rest of the normative universe, the focus of legal scholarship- --and especially of interdisciplinary legal scholarship--has been on asking what values outside of the law a legal regime should serve and what system of legal rules might serve these values best. I have no desire to revive the formalist conception of law as hermetically sealed off from morals or politics, and there is anyway no less plausible site for such an ambition than the law governing lawyers, which is obviously rent through with extra-legal moral and political ideals. But I do believe that even though the law is ultimately beholden to extra-legal values, legal regimes can construct edifices of doctrinal, and indeed human, relationships that cast long shadows in the light of these extra-legal values. Life in these shadows is, then, neither purely legal nor purely independent of the law but instead consists of the patterns that extra-legal values take on when they are, to change metaphors, refracted through the prism of the law.
The distinctive forms of life and action that arise in this context--the values and ideals that are immanent in the law--will be understudied by a scholarly method that stands outside the law and proceeds with the principal purpose of shaping the law to promote one or another set of extra-legal ends. So it is, I believe, with much contemporary scholarship in legal ethics, which moves too quickly to ask what system of ethical rules should govern lawyers and thereby passes over the important question what it is like--what it is like ethically--to be a lawyer practicing under the system of ethical rules that we now have.
"Legal Ethics from the Lawyer's Point of View,"
Yale Journal of Law & the Humanities: Vol. 15
, Article 1.
Available at: https://digitalcommons.law.yale.edu/yjlh/vol15/iss2/1