Essay for the In-Print Symposium on the Myth of Moral Justice

AuthorStuart A. Scheingold
PositionStuart Scheingold, Ph.D.
Pages47-66

Page 47

In The Myth of Moral Justice,1 Thane Rosenbaum argues that lawyers and judges should and can exercise their moral imagination to give moral meaning to legal practice and to law more generally. Indeed, Rosenbaum's argument, itself, represents just such an exercise of moral imagination. This argument is both clarified and substantiated by examples of how moral imagination can be incorporated into a variety of legal settings and by pointing out the costs of not doing so. While I am sympathetic to Rosenbaum's aspirations, I will claim that:

  1. He fails to take into account a substantial source of moral energy already at work within the legal profession, in the form of cause lawyering.

  2. In implying that a failure of will (a deficit of moral imagination) is the primary obstacle to elevating the tone and substance of the law, Rosenbaum fails to take into account the ethical and institutional obstacles to the transformation he seeks.

  3. In seeming to ignore the contested character of moral discourse and the centrifugal forces generated by moral advocacy, Rosenbaum fails to address problems that are inherent in his project but do not, in my judgment, invalidate it.

To develop and substantiate these claims, I will draw on cause lawyering literature, which will thus serve as a test case for assessing Rosenbaum's proposal that law and lawyers embrace, rather than hide from, the ideals of moral justice.Page 48

I Cause Lawyering

To begin with, Rosenbaum seems to disregard an admittedly small, but dedicated and enterprising, segment of the legal profession that approaches legal practice in a manner that is roughly consonant with his agenda. I am referring to cause lawyers who are committed to using their legal skills to pursue ends and ideals that transcend client service; be those ideals social, cultural, political, economic, moral or, indeed, legal.2 This first portion of my essay will discuss the nature of cause lawyering with a view towards assessing the extent to which it represents a realization of Rosenbaum's ideals. This discussion reveals that cause lawyers are indeed responding to their moral muses and that in giving themselves "something to believe in" beyond the adversary process as such, cause lawyering does make legal practice more fulfilling just as Rosenbaum claims.

Even a cursory summary of the causes pursued by cause lawyers provides ample evidence that cause lawyers are indeed pursuing their moral muses. Included under the umbrella of cause lawyering are such polar ideological opposites as poverty and property rights lawyers, feminist and right-to-life lawyers, as well as such disparate pursuits as human rights, environmental, civil liberties, and critical lawyering. In short, although cause lawyering is a low status and poorly-paid professional activity, it does provide what conventional legal ethics deny; the opportunity to harmonize personal conviction and professional life. At the same time, this disparate cacophony of causes suggests just how contentious the pursuit of moral justice is likely to be -a topic that will be pursued towards the end of this essay.3Page 49

II Institutional Constraints on Moral Imagination

Cause lawyering, and by implication Rosenbaum's broader agenda, is dependent on more than the exercise of moral imagination. Moral imagination is intrinsic to, and arguably a necessary element of, cause lawyering, but it is not sufficient.4There are, however, obstacles to moral advocacy deeply embedded in professional ethics, legal education, and legal practice. Cause lawyers must surmount, or at least accommodate, these obstacles if their cause lawyering and the cause lawyering enterprise are to thrive. That they manage to do so is a tribute to their moral fervor, but it is also a product of the career sacrifices that they make and of a willingness to compromise their aspirations when necessary.

A Ethical Ideals5

Cause lawyering and moral justice are at odds with the ethical standards of the legal professional. In order to fully appreciate this professional obstacle, it is important to understand the difference between the ideals institutionalized in the ethics of the profession, in legal education, and in legal practice and the moral ideals associated with cause lawyering. Ethics are the standards of right and wrong generated by and on behalf of the profession and are, as such, no different for the legal profession than for other professions. Morality looks beyond the needs of discrete professional projects and aspires to broader standards of right and wrong for the entire society.

According to the ethical codes of the legal profession, it is the essential duty of lawyers to provide vigorous and skillful representation.6 Irrespective of whether lawyers approve of a client's moral stance, theyPage 50 are supposed to engage in zealous advocacy on behalf of their clients. Therefore, lawyers are not supposed to have any qualms about switching sides or representing clients whose values and behavior are reprehensible to them. The prevailing code of professional ethics expressly allows lawyers to represent clients without endorsing their views or goals.7 The rules allow the marketing of legal expertise without requiring a lawyer to take into account any of the moral or political implications of their representation of clients.8

The rationale for this bedrock of professionalism is simple, straightforward, and readily embraced by other professions such as medicine and law enforcement. In this framing, professionalism is measured largely in terms of technical expertise put at the disposal of clients, patients, or the public (in the case of police officers). William Simon,9 writing specifically and critically about lawyers, refers to this ethical code as the "ideology of advocacy," according to which attorneys are supposed to be professionally partisan but personally neutral advocates for their clients. Client interests are to be defended forcefully, but the attorney is to maintain neutrality with respect to any broader social, political or economic interests that may be at stake in the conflict between the parties to the litigation. In this view, detachment and distance, which cause lawyers and, of course, Thane Rosenbaum view as sources and symptoms of alienation, are deemed essential to a reasoned defense of the client's immediate interests. Conversely, to identify closely with the aspirations of clients is believed likely to compromise effective representation by engaging the attorney's morality and emotions and endangering her or his rationality.

Cause lawyers reject this way of thinking about their professional project; choosing to privilege their moral aspirations and political purposes even if it leads to violations of the profession's code of ethical conduct.10 They expressly seek clients with whom they agree and causes in which they believe. They are not only eager to take sides in social conflict and to identify themselves with the sides they take, but are determined to construct their legal practice around this taking of sides. They deny, as critics of cause lawyering charge, that their effectivenessPage 51 will be put at risk by the values they share with their clients. Instead, they argue that an alliance with clients, rooted in common values and interests, enhances the kind of mutuality that is conducive to authentic and resolute representation.11 In other words, shared values are seen as conducive to a deeper understanding that will enable cause lawyers to engage in context-sensitive advocacy.

While cause and conventional lawyers might thus seem to inhabit different and mutually antagonistic ethical and professional worlds, this is not the case. Many so-called conventional lawyers tend to represent primarily, perhaps exclusively, those with whom they agree. This certainly seems to be the case with a majority of lawyers who represent corporations. Consider also personal injury lawyers in the United States. They tend to divide between a plaintiffs' bar and a defense bar. The plaintiffs' bar exclusively represents individuals or classes of individuals who have been injured whether as consumers, workers, victims of police abuse, and so on. Conversely, the defense bar represents only the targets of such suits, which typically include business corporations and insurance companies. Further muddying the professional waters are cause lawyers who use a profitable conventional legal practice to finance low-fee or no-fee representation of causes in which the lawyer believes; a modus operandi that can be found, for example, in the United States, Japan, and the United Kingdom.12

Given these permeable and indeterminate ethical boundaries between cause and conventional lawyering and, more fundamentally, the legal profession's constant search for increased social capital, it is understandable that cause lawyering has been, albeit to a limited extent, incorporated into the bar's definition of professional responsibility.13 Initial hostility to cause lawyering was an expression of the institutional interests of the legal profession, and specifically of its links to corporate wealth and its stake in social and professional stratification.14 Today thePage 52 organized profession is no longer quite so hostile to cause lawyering. This is due not so much to a change of heart, but to the profession's continuing efforts to enhance its public reputation by leveraging the public resonance of an inclusive understanding of rights and justice; ideals with which cause...

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