Counseling at the limits of the law: an exercise in the jurisprudence and ethics of lawyering.

Author:Pepper, Stephen L.


I.Introduction 1546

  1. Summary of the Problem 1546

  2. A Range of Examples 1550

  3. Law and Lawyering: Predictions, Manipulation, and Norms 1552 II. Legal Advice Within the Bounds of the Law:

    Some Guiding Distinctions 1554

  4. Desuetude and Laws Rarely Enforced: The Law/No Law Distinction 1554

    1. On the Obligation To Obey the Law, Paternalism, and Lawyer

      Sophistication 1556

    2. Moving from Unenforced to Rarely Enforced Law 1558

  5. The Distinction Between Law as "Cost" and Law as "Prohibition"

    (the Criminal/Civil Line) 1559

    1. The Ends of the Spectrum 1559

    2. The Middle Range of the Spectrum 1561

    3. Counseling: Advice in Addition to the Law 1563

  6. The Law/Eenforcement Distinction 1564

    1. The Problem of Disentangling Civil Law from Enforcement 1565

    2. Advice About Legal Procedures in Relation to Contemplated

      Conduct as Opposed to Pending Litigation 1566

    3. "Enforcement" of Law: Discovery of Underlying Conduct or the

      Procedures of Prosecution and Adjudication? 1568

    4. Intended and Unintended Lax Enforcement 1570

  7. The Distinction Between Public Information and Private Information 1572

  8. Differentiating Malum in Se from Malum Prohibitum 1576

  9. Who Initiated Discussion of the Possibly Illegal Conduct:

    Lawyer or Client? 1580

  10. Probability that Advice Will Result in Lawful Rather than

    Conduct 1582

  11. Distinctions, Guidance, and Complexity 1584 III. THE LAW 1587 IV. Counseling and Character 1598

  12. Four Premises 1598

  13. Marching into the Swamp 1607 V. Conclusion 1609


  14. Summary of the Problem

    The primary job of the lawyer is to give the client access to the law in its multitude of facets. The litigator provides access to the dispute resolution mechanisms that are our civil and criminal courts and to the substantive law that they apply; the "deal maker" provides access to the structuring aspects of the law, regimes of contract, corporate law, securities, property, and trust; the family law lawyer and the estate planner provide access to systems of law that include both court resolution and structuring by legal mechanisms; and so on with all sorts of law and lawyers. Each of these functions combines the lawyer's knowledge of the law with the client's need for or ability to profit from access to that law. This is true across the spectrum of law, whether procedural or substantive; whether concerning the mechanics and structures of various legal devices such as contracts, deeds, and trusts, or the legal entities that can be formed from combinations of such structures (a corporation or set of corporations, for example, or a condominium, the limited partnership that builds it, and the condominium association that will manage it).

    The client often wants or needs to understand what the law is in order to evaluate options and make decisions about his or her life, and the most common function of lawyers (across specializations and areas of practice) is to provide that knowledge. Knowledge of the law, however, is an instrument that can be used to follow the law or to avoid it. Knowing that the speed limit is fifty-five miles per hour on an isolated, rarely patrolled stretch of rural highway will lead some to drive at or below fifty-five, but will lead others to drive at sixty-three miles per hour or faster. Similarly, knowing that the only penalty for engaging in unfair labor practices is back pay and reinstatement for individual harmed employees can lead the employer/client either to avoid such practices or to engage in them intentionally. Knowledge of the law thus is two-edged. When the lawyer is in a situation in which the client may well use the relevant knowledge of the law to violate the law or avoid its norms, what ought the lawyer to do? That question is the subject of this Article.

    Two brief examples will set the stage. The client is negotiating a multiyear contract, anticipating that the first two or three years will be very profitable, and the subsequent two or three years significantly less so. This client's inquiries about the consequences of breach three years down the line and the docket delays in the relevant courts lead the lawyer to believe the client is considering breach of contract before he has entered into it. Or imagine the client whose elderly wife or parent is desperately ill and in immense pain, with no chance of recovery and no end in sight. The client wants legal advice about the possibility of consensual euthanasia, and the lawyer is wondering whether, in addition to informing the client that the substantive law would consider this to be murder, she also ought to include advice about the possibility of prosecutorial discretion or jury nullification. How ought these lawyers to proceed? Should they provide accurate information about the law that may well facilitate an intentional, planned breach of contract or a homicide? What guidance--what rules or principles--ought the profession or the law provide to lawyers in such situations?

    Our legal system is premised on the assumption that law is intended to be known or knowable, that law is in its nature public information. The "rule of law" as we understand it requires promulgation.(1) (Consider for a moment the altemative possibility of secret "law.") And one fundamental, well-understood aspect of the lawyer's role is to be the conduit for that promulgation. In a complex legal environment much law cannot be known and acted upon, cannot function as law, without lawyers to make it accessible to those for whom it is relevant. Thus, in our society lawyers are necessary for much of our law to be known, to be functional. The traditional understanding is that lawyers as professionals act for the client's benefit in providing that access to the law. Under this understanding, lawyers do not function as law enforcement officers or as judges of their clients in providing knowledge of the law;(2) the choices to be made concern the client's life and affairs, and they are therefore primarily the client's choices to make.(3)

    The limits on the assistance lawyers may provide to their clients have commonly been articulated and thought of as the "bounds of the law."(4) The lawyer may not become an active participant in the client's unlawful activity, and does not have immunity if she becomes an aider and abettor of unlawful conduct. The difficulty arises in deciding whether providing accurate, truthful information about the law--the core function of lawyering--can also be considered active assistance in violation of the law in situations in which the lawyer knows the information may well lead to or facilitate the client's unlawful conduct. The answers or guides to that inquiry are disturbingly unclear. There are no reported cases of civil or criminal liability on the part of the lawyer, or of professional discipline, clearly based only upon providing the client with accurate legal information.(5) On the other hand, the legal limits are not stated in a way to make it clear that providing such advice is within the proper bounds of lawyering. Nor do these limits provide much assistance in knowing when giving the advice is proper and when it is not.(6) And while the case law does not ground liability on such conduct, courts have rarely held or clearly stated that such conduct does not provide a basis for liability. The case law is for the most part silent. Does the client as citizen have an entitlement to knowledge of the law? Or does the lawyer have an ethical or legal obligation not to provide that knowledge when it may facilitate violation of the law or its norms?

    To begin, I set out several further situations to exemplify the problem and show its range. I then consider, in Part 11, a series of possible distinctions that might guide a lawyer, applying them to the original range of examples and to additional situations. Although helpful in analysis, few of these lines appear determinative, either alone or in combination. In Part III, I turn to the current law of lawyers' ethics, which is somewhat helpful but does not appear to provide clear answers to the problem. Finally, in Part IV, I consider the possibility that the problem is so multifaceted and arises in so many varying factual contexts that legal or ethical rules, principles, or guidelines are likely to provide only partial help. The ethics of dialogue, character, and virtue as a supplementary guide to these difficulties are therefore briefly considered.

    The goal for this Article is twofold: (1) to provide guidance for lawyers in working with their clients in these situations and (2) to explore some of the difficult underlying questions of both law and lawyering entailed by the effort to provide that guidance. The elaboration and exploration of the problem will thus involve at least three dimensions: possible legal limits, possible ethical guidance, and underlying jurisprudential questions. In searching for and tentatively articulating possible limits and guides we become entwined in the jurisprudence.

    If, for example, we start with the assumption that a primary purpose of law is to be known--and therefore that lawyers should start with at least a presumption that they ought to inform the client of what the law is--then what counts as "law" is important in determining what information the lawyer ought to presume is appropriate to give to the client. The basic jurisprudential inquiry of "what is law," what are its defining characteristics, thus takes on practical import for the lawyer. While most jurisprudential inquiries have focused either upon the role of the judge or on the citizen's obligation to obey the law, surprisingly few have focused upon the lawyer. That shortcoming is an important one, for the lawyer's role and perspective are quite different. While we usually reflexively think of judges and legislators as those who make and interpret law, and thus as the appropriate actors to focus upon regarding the "what is law" inquiry, the significance of the issue we are addressing may well...

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