Within each lawyer's conscience a touchstone: law, morality, and attorney civil disobedience.

• Author: Palumbos, Robert M.

Lawyers, like all citizens, inevitably face conflicts between their responsibility to the law and their moral obligations. Attorneys, however, have a unique range of options for resolving such conflicts. They not only have power and privilege in the legal system that other citizens lack, but they also assume a heightened duty to that system and to the law. As the Model Code of Professional Responsibility states, "[t]o lawyers especially, respect for the law should be more than a platitude." (1)

Civil disobedience has become an accepted method for citizens to resist the authority of the state on moral grounds. (2) By committing civil disobedience (3) and willingly accepting judicial punishment, one can protest the moral content of a law while still respecting the legal duty it imposes. This Comment addresses whether the current rules of professional ethics leave the option of civil disobedience available to attorneys, and asks under what circumstances attorneys may be justified in exercising that option.

Attorney civil disobedience is hardly novel. The man who famously demonstrated the power of civil disobedience to the world, Mohandas Gandhi, was trained in the English common law system and practiced law for more than twenty years. (4) Far from being an obstacle to moral reform, Gandhi's legal training was instrumental in the development of nonviolent resistance to British imperial control of India. Gandhi maintained a very lawyerly respect for the law and the legal system even as he defied it. (5) This Comment explores the extent to which the American bar has accepted Gandhi's example of reform for its own lawyers.

After reviewing the moral and philosophical justifications for civil disobedience in Part I, I will examine the codes of professional ethics (6) and related case law in Part II to determine the position of the organized bar on attorney civil disobedience. This discussion makes clear that, despite the bar's insistence in its official rules that its members obey and respect the law, there is a measure of unofficial tolerance for conscientious noncompliance by lawyers. Unfortunately, it remains uncertain from the application of the ethics rules how far this tolerance goes.

Part III addresses normative arguments for and against permitting lawyers to engage in civil disobedience in light of the legal profession's relationship to law and society. I argue that the main criticisms of attorney civil disobedience overlook key elements of the bar's relationship to the law, to the public, and to the legal system. While lawyers should be cognizant of a heightened responsibility to obey the law, the theoretical and practical arguments in favor of allowing them to commit civil disobedience, under some circumstances, are stronger than those in opposition.

Finally, in Part IV, I will elaborate on the circumstances in which attorney disobedience is justified. I propose to amend the rules of legal ethics to acknowledge explicitly that attorneys should subject the law to some personal moral scrutiny. By recognizing that moral obligations may overcome legal duties, the canons of legal ethics will strengthen an important safeguard against injustice. However, since it is appropriate that attorneys exercise a greater degree of caution than other citizens before committing civil disobedience, the rules should establish clear consequences for justified noncompliance. Currently, attorneys face a high-stakes gamble as to how the bar's disciplinary bodies will respond to their disobedience. Leaving their careers to the whims of the profession's disciplinary discretion makes the cost of attorney civil disobedience too high. Yet, imposing some professional consequences on attorneys is appropriate because it will make them evaluate more rigorously the principle for which they are willing to break the law and consider the social costs of their disobedience.

1. THE PURPOSES OF AND JUSTIFICATIONS FOR CIVIL DISOBEDIENCE

   The concept of justified civil disobedience has deep roots in our jurisprudence and has survived challenges to its philosophical foundations. (7) Traditional natural law theory, which has influenced Western legal tradition for centuries, (8) posits a necessary connection between law and morality. (9) Best illustrated by St. Augustine's proposition that "an unjust law is no law at all," (10) natural law theory claims that a law lacking moral legitimacy is not legally valid. (11) Legal positivism, which grew out of the Enlightenment in reaction to natural law theory, (12) severed the essential link between law and morality. (13) Whereas natural law theory understands legal validity as a normative category, positivism treats it as a purely descriptive one. Positivists look to a law's pedigree--not its moral content--to determine its legal legitimacy. (14) Valid laws are those issued by the sovereign in accordance with the "rule of recognition" of the legal system. (15) They impose an obligation on citizens to obey, and they become a standard within the society for criticizing and justifying behavior. (16)

   It was against the background of the debate between natural law and positivism that Henry David Thoreau, the "father" of modern-day civil disobedience, (17) developed his understanding of one's right to break the law. Thoreau accepted the positivist perspective that morally repugnant laws were still legally binding, but claimed that his moral obligations could nevertheless outweigh his duty to obey the law. (18) Arguing that even a just government authorized by "the sanction and consent of the governed" had "no pure right over [his] person and property," (19) Thoreau chose to withhold his taxes and accept imprisonment rather than fund the government's support for slavery and its engagement in the Mexican War. (20) Thus was born the modern concept of civil disobedience, under which "[p]ersons are thought to be justified in violating the law if, but only if, they are prepared to be punished for their disobedience." (21)

   Positivism remains, by and large, the dominant American approach toward legal ethics today. (22) Nevertheless, the history of the twentieth century strongly impressed upon Western culture the tragic potential of obeying laws merely because they are legally valid. We fear what William Simon described as the "nightmarish slippery slope of Positivism" that "leads to compliance with jurisdictionally adequate but morally evil laws like the Nazi enactments requiring reporting Jews and dissidents or the antebellum Fugitive Slave Laws." (23) We have seen the reality of legal regimes that were so unjust that noncompliance with them became, to some, a moral obligation superceding the legal duty to obey the law. (24) Modern advocates of positivism have recognized the need for some moral inquiry into a citizen's duty to the law, noting that "the certification of something as legally valid is not conclusive of the question of obedience." (25) Consequently, though mainstream American society rejects classical natural law theory, it also resists a categorical duty to obey valid laws (26) and recognizes civil disobedience as a valid form of protest and a valid democratic check on unjust laws. (27)

   Though the right of citizens to engage in civil disobedience is widely accepted, it remains highly contested whether attorneys have (or should have) the same right. (28) This is clearly a significant question for our society generally and for lawyers in particular. Attorneys enjoy unique privilege and power within the judicial system; their rights, status, and actions inherently affect our legal environment in ways that those of other citizens do not. Our willingness as a society--and the bar's willingness as a profession--to tolerate attorney noncompliance illuminate the American attorney's relationship to the law in several ways.

   First, the acceptability of civil disobedience by lawyers necessarily reflects a judgment about the interests that attorneys represent. Our position on this issue reveals whether we view lawyers purely as agents mediating the respective interests of their clients and the state, or whether we also consider them accountable to society for broader moral interests. Second, since one justification for civil disobedience is that there is a personal right to violate the law out of moral obligation, (29) forbidding attorney noncompliance strips lawyers of a prerogative that has come to be understood as a basic element of citizenship. It is prudent to recognize explicitly whether this sacrifice is one of the collateral effects of the decision to be an attorney.

   Third, since lawyers are among the primary actors implementing the state's edicts, their capacity to disobey unjust or evil laws is particularly relevant to our concern about the slippery slope of positivism. (30) Given the powerful role of attorneys in the legal system--both practical and symbolic--their acts of noncompliance will almost certainly have a greater impact (for good and bad) than those of other citizens. Finally, the issue of lawyer civil disobedience potentially restricts the type of laws that can be justifiably disobeyed. Since there are some legal obligations imposed only on attorneys by virtue of their profession, (31) these rules may only be disobeyed by attorneys. (32) A determination that lawyer disobedience is prohibited would mean that these laws are not considered susceptible to noncompliance, a proposition that contradicts our society's general acceptance of the concept of civil disobedience.

2. THE TREATMENT OF ATTORNEY CIVIL DISOBEDIENCE UNDER THE CODES OF PROFESSIONAL ETHICS

   Lawyer civil disobedience differs from that of other citizens because attorneys are subject to binding professional rules of ethics to which they alone must answer. (33) This fact allows for attorney civil disobedience in two possible forms: (1) violations of substantive law, and (2) violations of binding professional ethics requirements...