(Er)race-ing an ethic of justice.

• Author: Alfieri, Anthony V.
• Position: Review Essay Symposium: The Practice of Justice by William H. Simon

INTRODUCTION

For several years, I have pursued a project devoted to the study of race, lawyers, and ethics in the American criminal justice system. Building on the evolving jurisprudence of Critical Race Theory,(1) the project spans a series of case studies investigating the rhetoric of race, or race-talk, in the prosecution and defense of racially motivated violence. The first work of the series examines the rhetoric of race in cases of black-on-white racially motivated violence, highlighting the self-subordinating, racialized defense of Damian Williams and Henry Watson on charges of beating Reginald Denny and others during the 1992 South Central Los Angeles riots.(2) The next work inspects racial rhetoric in cases of white-on-black racially incited violence, extrapolating other-subordinating, racialized defense strategies from the criminal and civil trials of the United Klans of America and several Ku Klux Klan members in the 1981 lynching of Michael Donald in Mobile, Alabama.(3) A third work analyzes the discursive and symbolic meaning of race in double trials involving successive state criminal and federal civil rights prosecutions, citing the trials of Lemrick Nelson and Charles Price arising out of four days of interracial violence in the Crown Heights section of' Brooklyn, New York in 1991.(4) A forthcoming work explores the federal criminal prosecution of five white New York City police officers on charges of physically and sexually assaulting Abner Louima, a young Haitian immigrant, at a Brooklyn station house in 1997.(5)

The purpose of this ongoing project is to understand the meaning of racial identity, racialized narrative, and race-neutral representation in law, lawyering, and ethics. To that end, the case studies serve as a means to develop working hypotheses regarding the sociolegal experience of subordination: specifically, the subordinating discourse and imagery of race trials, the nature of client and community harm caused by such subordination, the color-coded partisanship of purportedly race-neutral ethics regimes that countenance such subordination, and the legitimacy of alternative race-conscious ethical regulation. The process of reworking these hypotheses, one hopes, will not only reveal the sociolegal structures of racial violence in American history, but also reconstruct dominant visions of racial dignity and community in American law.

The reconstructive nature of this project derives in part from the teachings of Critical Race Theory and the emerging voices of color in Asian-Pacific(6) and LatCrit scholarship.(7) Unlike traditional canons of colorblind or color-coded representation, the vision of practice underlying this growing jurisprudential movement implies an ethic of good lawyering based on a color-conscious, contextual approach to civil and criminal advocacy.(8) Still formative, the approach strives to accommodate the identity interests of client dignity and community integrity and, at the same time, to heed the injunction of effective representation.(9)

The centrality of context to this approach lends added significance to the celebrated publication of William Simon's The Practice of Justice: A Theory of Lawyers' Ethics. Together with the new wave quartet of Robert Gordon,(10) David Luban,(11) Deborah Rhode,(12) and David Wilkins,(13) Simon stands among the preeminent scholars in legal ethics, singular in his deft integration of critical theory into the study of the legal profession. Simon's trenchant critique of the profession and its jurisprudential underpinnings gives direction to second wave projects like the one at hand. Indeed, The Practice of Justice provides a normative framework for designing race-conscious, community-regarding duties of legal representation. Instead of simply rehearsing Simon's critique and casting objections against it, this essay endeavors to put Simon's book to work in the service of fashioning an ethic of representation in race cases.

The essay is divided into four parts. Part I outlines Simon's jurisprudential critique and revision of liberal ethics regimes. Part II describes a postliberal vision of ethics tied to race-consciousness and racial community. Part III contemplates the practicalities of institutionalizing a race-conscious, community ethic of representation. Part IV parses and responds to theoretical objections to a race-conscious regulatory regime.

1. LIBERAL VISIONS: DOMINANT AND CONTEXTUAL

   Like his new wave, post-realist compatriots, Simon treats law and the animating force of legal consciousness as ideological artifacts produced by normative contest and political conflict. He explores the ideology of the profession by interrogating its prevailing habits of mind, speech, and conduct. His inquiry begins with the introduction of the Dominant View,(14) an ideological stance rooted in state bar codes, disciplinary doctrine, and professional responsibility literature.(15) Attributing both moral anxiety and ethical disappointment to this Dominant View, Simon searches for an explanation of popular and professional disenchantment with the social role and moral aspiration of lawyers.(16) He locates this explanation in the norms of professional responsibility that govern a lawyer's commitment to legality and justice. The core of that commitment, according to Simon, is loyalty to the client.(17) Pointing to the structural tension between client interests and third-party or public interests, Simon observes an anxious profession struggling with hard moral decisions.(18)

   Simon's observation of moral anxiety is widely shared.(19) Yet, for Simon, the instant anxiety signals a greater deterioration in the "moral terrain of lawyering."(20) He traces this anxiety to the jurisprudential foundation of the Dominant View and its core principle of client loyalty.(21) That categorical imperative, Simon explains, carries crucial assumptions about the nature and purpose of law and the legal system that extend beyond the Dominant View. Here, the reach of jurisprudential logic extends through a common style of decisionmaking that Simon calls categorical. Ethical judgment driven by categorical injunction entails a style of decisionmaking that "severely restricts the range of considerations the decisionmaker may take into account when she confronts a particular problem."(22) Under this style, Simon notes, "a rigid rule dictates a particular response in the presence of a small number of factors."(23) Hence, he adds, the "decisionmaker has no discretion to consider factors that are not specified or to evaluate specified factors in ways other than those prescribed by the rule.(24) Both the American Bar Association's Model Code of Professional Responsibility(25) and its Model Rules of Professional Conduct,(26) Simon concludes, "legitimate the lawyer in pursuing any arguably lawful goal of the client through any arguably lawful means."(27)

   Even competing visions of practice, Simon laments, suffer from the infirmities of this categorical style of judgment.(28) The altruistic Public Interest View, for example, adheres to the basic maxim "that law should be applied in accordance with its purposes, and litigation should be conducted so as to promote informed resolution on the substantive merits."(29) More conventional perspectives on ethics and professional responsibility suffer in the same way. To Simon, for instance, a rule-focused approach emphasizing mechanical, positive law compliance quickly degenerates into the folly of moribund formalism.(30) A role-morality perspective underscoring nonlegal value commitments and personal moral autonomy, by comparison, strains the bounds of professional role and legal obligation to an untenable degree.(31) A contrasting personal-relations approach stressing the friendship-based extralegal values of loyalty, trust, and empathy unwittingly denigrates norms of legal merit and justice.(32) Last, a prudential approach heralding the "lawyer-statesman" ideal of practical reason derived from common law modes of decisionmaking badly underestimates the moral quality of practice.(33)

   Overcoming the reigning preference for categorical styles of judgment, Simon advances a contextual approach to ethical decisionmaking that urges vindication of the underlying legal merits of a matter.(34) For Simon, this approach involves "a judgment that applies relatively abstract norms to a broad range of the particulars of the case at hand."(35) His Contextual View imagines a legal ethics regime contingent on a lawyer's discretionary judgment exercised in a manner likely to promote justice. On this view, the promotion of justice is neither inconsistent with the rational, vigorous pursuit of a client's private goals nor inconsonant with the procedural and adversarial public norms of the legal system. Both private and public values, Simon contends, may be served in the particularized circumstances of a case to uphold the aspirational tradition of legal professionalism.(36)

   Jurisprudentially, then, Simon steers a delicate course. He seeks to maintain a sense of fidelity to law and to the norms of liberal legalism while he struggles to temper the radical excesses of possessive individualism through discretionary appeal to a greater ideal of public justice. Unfortunately, even a scholar of Simon's elegante and skill must fail in such an enterprise. The weight of liberal foundational norms--moral agency, radical individualism, contractarian commodity exchange, and public-private separation--condemns the project of ideological reparation. Consider, for example, Simon's overbroad concept of client agency. Construed either as an isolated individual or as a corporate entity, Simon's client often seems to possess an unchecked free will, a power of agency unfettered by material constraints in counseling or in the political economy.(37) Consider as well his crabbed notion of the "public dimension" of client-group loyalty and client-community nexus...