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Journal of the Institute for the Study of Legal Ethics

Authors

Stephen Gillers

Publication Date

1-1-1999

Introduction

Assume a just legal system in a constitutional democracy. Imagine a person wishing to achieve a lawful goal. Imagine a lawyer who agrees to assist her. If the lawyer uses only legal means consonant with the jurisdiction's legal ethics rules, can a coherent theory of moral philosophy nevertheless label the lawyer's conduct immoral? Can a good lawyer be a bad person?

Let us grant that laws may be inequitable or inequitably used, in even the most enlightened society. These may allow unjust ends or the use of unjust means. Legal and moral are not congruent terms. Let us also agree that a person may be judged immoral though she pursues a legal goal in a lawful way; and conversely, that some illegal acts-civil disobedience at certain times-may be judged morally worthy. Let us finally accept, that if a principal's lawful conduct may be immoral, so may the conduct of an agent who knowingly assists it.

Even so, is there something special about legal agents that exempts them from these precepts? Can lawyers say: "You are mistaken. I am a lawyer. Your judgments do not apply to me. To all the others, perhaps, but not to me."? Can they, as Murray Schwartz has put it, "fil[e] a demurrer, rather than an answer, to the charge of immorality"?

Those who answer "yes" may rely on attributes of the legal system within which lawyers work, especially its adversary dimension. That system, they might contend, is so special that as long as a lawyer acts within it, he or she must be insulated from moral accountability or the system won't work as intended. Those who answer "no" or remain skeptical may question whether the legal system can offer an excuse in all cases. If a client cannot cite the lawfulness of his goals or tactics whenever the morality of either is challenged, why should the lawyer, who helps the client achieve the goals or invoke the tactics, fare better?

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