The radical conservatism of The Practice of Justice.

• Author: Gordon, Robert W.
• Position: Review Essay Symposium: The Practice of Justice by William H. Simon

The Practice of Justice is a fundamental but in some ways also remarkably conservative--in the best sense of the word--critique of the prevailing system of lawyers' ethics and practices. It is fundamental, in the sense that William Simon razes to the ground the current structure of ethical rules and their presuppositions. It is conservative, in that he then shows how a system of lawyers' ethics can be rebuilt on its existing foundations, using existing construction materials--the ordinary working conceptions of law and justice that lawyers bring to bear in other aspects of their practices.

My aim in this brief comment will be first, simply to highlight those arguments of the book that seem most distinctive, novel and powerful; second, to point out some of the problems I see and qualifications I might suggest to Simon's major thesis, and to advance a couple of modest additions to his reform project; and finally to speculate about the challenge that Simon's thesis and reforms pose to the current legal profession.

I.

Simon's book consists, of course, chiefly of a critique of the "Dominant View" of legal ethics, and a proposal to substitute for it a "Contextual View." The Dominant View is that the "lawyer must--or at least may--pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous legal claim."(1) This position, he says, that the lawyer must be a zealous advocate within the "bounds of the law," relies on a partial and constricted idea of what "law" is: chiefly a formal-positivist idea that law consists of rules, along with a libertarian proviso that construes such rules strictly against the state. Yet outside the legal context, Simon argues, lawyers and legal decision-makers habitually adopt a much larger and more flexible conception of what the law is, as only in some contexts and on some occasions requiring strict and formal interpretation. In other occasions and contexts lawyers treat legal enactments as broad statements of principles or charters of purposes, to be generously extended by analogy to like situations, or to adapt to changing circumstances, and to incorporate standards from a larger background of social norms and customs. In still other situations lawyers selectively "nullify" formal legal enactments, treating them as dead letters that have lost any normative force or enforcement backing that they may once have had. Simon argues that lawyers should bring to bear the same kind of discretionary, contextual judgment they would use in interpreting any other kind of law to construe the "law" that governs and limits their representation of clients. Once they have done so, "[l]awyers should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice,"(2) meaning, resolution on the "legal merits," with law being understood in the broad sense.

What Simon's book isn't. Perhaps I can best begin to explain what Simon's argument is about by first describing several more familiar kinds of critique that it is not:

1. Simon's critique of legal ethics is not the cynic's, nor the skeptical Chicago-economist's, nor the neo-Marxist sociologist's, which ironically often turn out to be identical.(3) Their view is that professional ethics are simply thin rationalizations of self-interest--the self-interest of professionals in maximizing their incomes, and of their guilds for controlling their markets by restricting entry and competition, and that it is naive to expect them to be anything else or to take them seriously as moral aspirations. Such critiques are obviously external, uttered from the standpoint of the skeptical outside observer. Simon could not deny--no sensible person could--that many so-called ethical rules have this self-serving and protectionist character. His subject however is not the ethical codes' discrete body of sub-rules, but the basic ethical principles and commitments of the profession. And toward these, Simon's stance is one of internal critique. He takes at face value lawyers' own best and most idealistic constructions of the purposes and effects of their principles. He assumes that lawyers, or the best of them anyway, are genuinely committed to the "moral aspirations" of their social role, and genuinely hope to find a connection between what they do every day and the overall animating ideal of serving justice, just as doctors want to feel a connection between their daily practices and the general social goals of keeping people healthy, curing disease and relieving pain. The problems, as he sees them, are that lawyers are constantly put into situations in which their actions seem to cause immediate or short-term injustices, and that the ethical principles that they habitually use to rationalize these practices of injustice are terribly inadequate to the job of connecting them with the larger justice-serving goals of the legal system. The task of reforming legal ethics is to help reestablish that connection.

2. In keeping with his project of internal critique, Simon's focus is primarily ethical rather than institutional, that is, on critique and reform of lawyers' ethical responses to dilemmas that the legal system as it currently operates routinely puts them in, rather than to the systems and structures that create the dilemmas. This distinguishes his enterprise from general critiques of legal institutions and procedures, such as critiques of the adversary system of trials as a fair and efficient mechanism for finding facts; of perverse incentives set up by "American rule," contingent-fee, or fee-shifting arrangements for lawyers to abuse clients or the legal system; of the ways "unauthorized practice" rules and similar protectionist policies inhibit competition from lower-cost providers; or more generally still of the distribution of legal services in favor of wealthy clients and the restricted access that high prices impose on nearly everyone else. It is clear that Simon shares many of these critiques--and indeed makes them central to his argument that the legal system cannot and does not operate automatically to produce just outcomes, but his main attention is on something else. Any set of legal institutions or processes will be subject to malfunctions that will cause major shortfalls from the ideals of equal and effective justice. His question is: How should a responsible lawyer adapt his practice to such failures?

3. Simon frames his approach as an alternative to two other critical stances most often recommended by other ethics reformers. One (most notably associated with David Luban) is the critique of the Dominant View from the standpoint of, and the effort to bring professional ethics into harmony with, the claims of ordinary morality (or the lawyer's personal morality).(4) The other (chiefly associated with Gary Bellow and to some extent with Geoffrey Hazard)(5) is what Simon calls the Public Interest View, 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."(6)

   Simon's position is closer to the current Dominant View than either of these alternatives. He prefers that his proposed ethical system be based, like the current one, on "law" rather than ordinary or personal morality. But his view of "law" is one of judgments that often, though not invariably, incorporate moral norms, including norms that sometimes justify ad hoc nullification or even conscientious resistance to laws whose operation is conspicuously unjust. Simon's lawyers, seeking to ascertain what standards should guide their representation of clients, should consult legal sources and engage in legal analysis, not their own views or those of moralists; to this extent legal ethics remains in Simon's hands a role-morality. As for the Public Interest standard: In many cases (and as I'll suggest later on probably most cases), Simon's ethical standard will be much the same as a Public Interest standard. But Simon wants to reserve to his lawyers the option to be vigorous, one-sided, hardball partisan advocates in appropriate contexts, those in which the lawyers can rely on equally resourceful adversaries or negotiating partners to represent conflicting interests, or on other more authoritative institutional actors (such as judges or arbitrators or administrative agencies) to reach informed decisions on the merits. As he says, although lawyers should think like judges in determining what the relevant law is, they need not behave like judges if there are real judges, or their equivalents, available and capable of making informed decisions.

   One of Simon's boldest--but when one thinks about it completely consistent--moves is to apply his proposal unflinchingly to the one type of practice where even the most public-interest-minded legal-ethics reformers endorse the Dominant View of hardball-libertarian-positivist-partisan-advocacy. That is criminal defense. Simon thinks that even in this role the lawyer needs to make contextual judgments about whether a particular defense tactic--e.g. destructive cross-examination of a prosecution witness the lawyer knows to be truthful--will be so uncorrected--for as to result in an unjust outcome. Here as elsewhere, however, he is also willing to consider arguments that in a legal system such as ours, which imposes crazily savage penalties even for minor offenses, that defense lawyers may be justified in using almost any tactic to bargain such sentences down.

   What Simon's book is...