Legal counseling in the administrative state: how to let the client decide.

• Author: Heller, Jamie G.

The advice that lawyers give to their clients rarely becomes a public matter. Despite the increased legalization of American society in the last several decades, Americans seldom see how lawyers talk about laws within the confines of their offices. When President Clinton nominated Zoe Baird to be U.S. Attorney General,(1) however, the nation was provided with a replay of an attorney-client dialogue. Baird had to explain why she had violated the federal Immigration Reform and Control Act of 1986 (IRCA),(2) a statute that, like much law promulgated in recent years, is cumbersome to comply with and infrequently enforced. She relayed to the Senate Judiciary Committee the advice she said an immigration lawyer had given: "[I]t had been described to us as a technical violation and that there was a process we could use to regularize the situation."(3)

Baird--along with the President, members of Congress, and other Washington insiders--learned the hard way that the public did not consider her explanation satisfactory. The outcry against Baird resulted in President Clinton's asking her to withdraw as nominee.(4) In hindsight, Baird said that hiring the workers in violation of the law had been wrong.(5) What remains unaddressed is whether the legal advice that Baird said her husband had received was proper.

According to press reports, a lawyer had advised that while "'civil penalties are technically applicable' for hiring illegal aliens |no employer sanctions have ever been applied as a result of the employment of undocumented domestic workers in Connecticut.'"(6) Legal ethics commentators who advocate the so-called "positivist" or "libertarian" view of counseling would likely contend that this advice was correct. That there is an abject lack of enforcement is exactly what the client needs to know, they would say. Commentators in the "purposivist" or "regulatory" camp, on the other hand, would argue that as an officer of the court a lawyer should encourage compliance with IRCA's goals, even in the absence of steady enforcement.(7)

This Note argues that each of these models, standing alone, is inadequate at best and dangerous at worst in a society animated simultaneously by liberal and communitarian tendencies.(8) Rather than adhere to a model that presumptively favors either the individual or the state, the legal counselor should provide what this Note calls "full-picture counseling." By giving the client the full picture, the lawyer aims to enable the client to choose a course of action that the client, while aware of societal interests in the legal measure, considers appropriate. The client's choice might be narrowly self-interested, or fulfill the law's substantive purposes, or fall somewhere in between, but it is a choice that as nearly as possible is a product of the client's reflective judgment.

Under the full-picture model, the lawyer's primary role is to enhance the client's ability to make decisions.(9) When a law does not readily exhibit a justification for the constraints that it imposes, the counselor should articulate to his client the purposes of the law. Because a client who recognizes a law's goals might be more apt to choose a path of action that would further those goals, it would be a disservice to the client, and to society, to fail to provide advice about those goals. At the same time, however, if the law is not enforced, or its legitimacy is questionable,(10) the full-picture counselor would convey those aspects of the measure, even if it meant that a client so counseled would be more likely to breach. The first task--conveying purposes--would be inconsistent with the positivist counseling model; the latter task--focusing on problems--would be inconsistent with the purposivist counseling model. Together, both tasks would satisfy the full-picture counseling model. A valuable side benefit of the full-picture approach is that it helps keep the government accountable to the governed, as clients receive information that helps them understand the actions of those they have charged with governance.

The full-picture counseling model is especially appropriate given the increased legalization of American society.(11) Preservation of individual autonomy in a heavily regulated society requires legal counseling that does not limit a client's access to information about and assistance with the law.(12) At the same time, the justification for seemingly bureaucratic requirements, or for complex, centrally promulgated legal rules limiting behavior mala prohibita, may well be less apparent to a lay client than would the justification for rules constraining behavior mala in se. Though an active enforcement presence would likely promote obedience even if a client did not understand or support a measure,(13) laws in the modem regulatory regime often are not actively enforced.(14) A lawyer who fails to convey purposes could deny a client the opportunity to embrace a measure's goals and in so doing could hinder the measure's chance for success. Finally, some regulatory measures have been attacked as deceitful, in that they claim to seek goals that they almost certainly will not achieve.(15) A lawyer who fails to convey the "full picture" about such legal measures can cloak the legal system, and himself, with a veneer of legitimacy not wholly deserved.

Part I of this Note reviews the leading academic models of legal counseling. Part II elaborates on the full-picture counseling model. Part III uses the Baird case to show how full-picture counseling would work in practice.(16)

1. THE LEADING MODELS OF LEGAL COUNSELING

   This Part reviews three leading, established models of legal counseling: the positivist model, the purposivist model, and the discretionary model.(17)

   1. The Positivist Model

      The positivist model(18) derives from the Hobbesian view that society consists of an aggregate of egoistic individuals, each possessing his or her own subjective values. The task of the sovereign is to provide order, and it does so by administrating rules that are separate from social norms. The lawyer's role is "to explain how, and under what circumstances, the sovereign will intervene in his client's life."(19) The lawyer counsels on the premise that his client is akin to Holmes' "bad man," who simply wants to know about the nature of this intervention--"what the courts will do in fact, and nothing more pretentious."(20) Limited only by the explicit constraints of the legal system and concerned only with the client,(21) the lawyer will not hesitate to manipulate the law in ways that frustrate the law's goals or run counter to his personal morals. Procedural tactics, for example, are fair game, perhaps even obligatory, as long as they further the client's ends.(22) One critic has called this approach to counseling a philosophy of "'what's right is whatever you can get away With.'"(23)

      Not all adherents of this mode of counseling justify their view strictly by reference to positivist legal theory. Stephen Pepper, for example, has defended the above-described "amoral" role on grounds that only through such counseling can clients achieve the socially desirable "first-class citizenship" that comes with having full access to the law.(24)

      In Pepper's model, law sets a "floor" below which an individual's behavior should not fall, but above which an individual is free to behave as she chooses.(25) An "amoral technician," the lawyer does not "screen" access to the law by shaping his presentation to accord with his own moral view of a legal measure or his assessment of society's view of that measure. Similarly, in presenting a realist, amoral account of the law, a lawyer informs a client when the law is not enforced.(26) If a lawyer does otherwise--that is, if the lawyer takes into account collective morality or his own personal morality in presenting the law to the client--then he substitutes these views for the client's in a realm in which the law has left room for private decisionmaking. Anything but amoral counseling, Pepper argues, denies the client the ability to achieve the autonomy, the "first-class citizenship," that comes from having unfettered access to law.(27)

      Pepper does recognize that his model poses what he calls the "Problem of Legal Realism."(28) When the lawyer provides an amoral presentation of the law that may include an account of the odds of enforcement, the lawyer might foster disobedience by presenting the law as amoral.(29) Pepper suggests that to counter this tendency, the lawyer should engage the client in a "moral dialogue."(30) This dialogue would take place "aside from the law,"(31) because, according to Pepper, the law is "instrumental and manipulable"(32) and itself is "not a source of moral limits."(33)

   2. The Purposivist Model

      In contrast to the positivist counselors, the purposivist counselors start from the view that society is an association of people with shared experiences and norms. Law is meant to advance a common agenda, as well as to preserve order.(34) The lawyer is an "agent of social welfare,"(35) whose role is to help achieve the law's goals.(36) While the lawyer should be sensitive to the needs of the individual, he has "an affirmative obligation to oppose his client's antisocial impulses"(37) The lawyer's task involves "contributing to the enforcement of the substantive law," and the lawyer looks to the purposes articulated in the law for guidance in this role.(38)

      The prototypical client in the purposivist model might be called the "good but confused" man.(39) This person would conform to a substantive legal norm if only she understood its purposes. The lawyer has "affirmative duties to share information and to correct misunderstanding,"(40) and to encourage compliance with legal norms.(41) Finally, because he is committed to furthering those norms, the purposivist lawyer resists using procedural rules or "loopholes" on behalf of the client if the result would frustrate the law's...