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Lawyers and Fidelity to Law

Lawyers and Fidelity to Law

W. Bradley Wendel
Copyright Date: 2010
Pages: 286
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  • Book Info
    Lawyers and Fidelity to Law
    Book Description:

    Even lawyers who obey the law often seem to act unethically--interfering with the discovery of truth, subverting justice, and inflicting harm on innocent people. Standard arguments within legal ethics attempt to show why it is permissible to do something as a lawyer that it would be wrong to do as an ordinary person. But in the view of most critics these arguments fail to turn wrongs into rights. Even many lawyers think legal ethics is flawed because it does not accurately describe the considerable moral value of their work. InLawyers and Fidelity to Law, Bradley Wendel introduces a new conception of legal ethics that addresses the concerns of lawyers and their critics alike.

    Wendel proposes an ethics grounded on the political value of law as a collective achievement that settles intractable conflicts, allowing people who disagree profoundly to live together in a peaceful, stable society. Lawyers must be loyal and competent client representatives, Wendel argues, but these obligations must always be exercised within the law that constitutes their own roles and confers rights and duties upon their clients. Lawyers act unethically when they treat the law as an inconvenient obstacle to be worked around and when they twist and distort it to help their clients do what they are not legally entitled to do.Lawyers and Fidelity to Lawchallenges lawyers and their critics to reconsider the nature and value of ethical representation.

    eISBN: 978-1-4008-3658-1
    Subjects: Law, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Acknowledgments
    (pp. ix-xiv)
  4. Introduction
    (pp. 1-16)

    In the United States it is hard to commit large-scale wrongs without the involvement of lawyers. Sure, you can rob a bank or shoot someone, but the really big stuff—accounting gimmickry leading to the collapse of Fortune 50 companies, fraudulent schemes to defraud the Treasury out of billions of dollars in tax revenue, and the defiance of human rights exhibited by the United States in the aftermath of the September 11th attacks—almost always occurs with either the active involvement or the acquiescence of intelligent, sophisticated, elite lawyers. When these scandals become publicly known, commentators on newspaper op-ed pages,...

  5. Chapter One The Standard Conception, For and Against
    (pp. 17-48)

    As human beings, we are all subject to the demands of morality. By “morality,” I do not mean anything mysterious. Morality refers simply to the standards of right and wrong that we apprehend and apply in our lives, as a basis for making decisions and as a justification for our actions. We appeal to morality when we attempt to explain and defend our actions against a demand for justification, particularly in cases in which our actions have had an impact on the interests and concerns of others. Someone who has been harmed in some way may ask, “Why did you...

  6. Chapter Two From Partisanship to Legal Entitlements: Putting the Law Back into Lawyering
    (pp. 49-85)

    The Standard Conception of legal ethics consists of two principles of action for lawyers: Partisanship and Neutrality. Partisanship is generally understood as the maxim that a lawyer should act to vindicate the interests of clients. The primary objective of this chapter is to establish, as the first aspect of a conception of legal ethics centered on fidelity to law, that the legalentitlementsof clients, not client interests, ordinary moral considerations or abstract legal norms such as justice, should be the object of lawyers’ concerns when acting in a representative capacity. When representing clients, lawyers must respect the scheme of...

  7. Chapter Three From Neutrality to Public Reason Moral Conflict and the Law
    (pp. 86-121)

    Chapter Two observed that lawyers should assert their clients’ entitlements in litigation; counsel clients on what actions are lawful, given their entitlements and those of others; and structure their clients’ affairs using legal techniques like contracts and wills. Contrary to the Principle of Partisanship, the arguments of the last chapter aimed to establish that the legal entitlements of clients, not client interests, fix the boundaries of lawyers’ duty of loyalty to their clients. Lawyers believe, further, that in the course of providing effective representation to their clients, they should consideronlytheir clients’ legal entitlements, and not reasons given by...

  8. Chapter Four Legal Entitlements and Public Reason in Practice
    (pp. 122-155)

    If the arguments up to this point are sound, then the fundamental obligation of the lawyer’s role is fidelity to the law itself. The law supersedes moral disagreement and provides a basis, however thin, for social cooperation and solidarity. Lawyers are expected to be faithful agents of their clients, ascertaining and defending their clients’ legal entitlements, notwithstanding any moral disagreement they may have with their client. In several important areas, however, including client selection, withdrawal from representation, and client counseling, the law governing lawyers contemplates a role for ordinary moral considerations in the lawyer’s decision-making process. In these areas, the...

  9. Chapter Five From Nonaccountability to Tragedy: The Remaining Claims of Morality
    (pp. 156-175)

    People remain moral agents even while acting in a public or political role. If a morality of public roles ever lets go of this insight, it may be difficult to avoid the problem of the banality of evil, in which ordinary people occupying institutional roles work together to perpetrate monstrous horrors. One response to the problem of the banality of evil may be to insist that there is no such thing as a distinctive morality of public roles. This is David Luban’s position. He wryly observes that the distinction between personal wrongs and institutional wrongs “has not been very popular...

  10. Chapter Six Legal Ethics as Craft
    (pp. 176-207)

    The basic job of the lawyer, as established by agency, contract, and tort law, is to represent her client effectively within the bounds of the law. As discussed in chapter 2, the law provides entitlements, which may be asserted in litigation, or may serve as the basis for the lawyer’s advice to the client. The lawyer’s role is to ascertain and protect her client’s entitlements, not to be a “zealous advocate within the bounds of the law,” which implies doing whatever one may get away with, as long as it is in the client’s interests. If it were possible to...

  11. Conclusion
    (pp. 208-212)

    As I have argued throughout this book, lawyers should not aim directly at justice, and should not make decisions in the same way that morally reflective people make any ethical decision. This sounds like a strange, even perverse way to end a book on legal ethics, but I think it is the unavoidable implication of understanding the values that infuse the ethics of lawyering as fundamentally political, as related to considerations like democratic legitimacy and the rule of law. To emphasize a point I have made throughout the book, the institutions and procedures that make up the legal system do...

  12. Notes
    (pp. 213-268)
  13. Bibliography
    (pp. 269-282)
  14. Index
    (pp. 283-286)