A reaction: 'stand up, your father (a lawyer) is passing'.

• Author: Powell, Burnele V.
• Position: Response to book review by Steven Lubet in this issue, p. 1339 - Classics Revisited - 1999 Survey of Books Related to the Law

Professor Steven Lubet's review examines in the lawyering context the truth of Duc de La Rochefoucauld's observation that "[o]ur virtues are mostly but vices in disguise."(1) His question -- one going to the very heart of what lawyering is about -- asks readers of To Kill a Mockingbird whether they would be equally prepared to accept the fictional Atticus Finch as the personification of the good lawyer if his black client, defendant Tom Robinson, actually committed the rape of the white woman, Mayella Ewell, for which he was charged. If Robinson was a rapist, how then does one square Atticus's aggressive blame-the-victim defense with his heroic, defender-of-the-innocent personae?

Asked this way, the issue is essentially the one posed rhetorically some time ago by Professor Wasserstrom: Why is it so plausible to talk about the amorality of the lawyer who represents all clients irrespective of their moral character?(2)

One answer, of course, is the one that is scoffed at as little more than a rationalization by Wasserstrom(3) and marginalized as belonging to the "adversary system purist" by Professor Lubet(4). In the harshest view, what is said to be involved is a willingness of lawyers, like actors cast in leading roles, to play the role of advocates. Like Gregory Peck, Robert Duvall, Harrison Ford, Richard Gere, or Ian McGlothlen, lawyers are amoral participants in a theatrical social production called a criminal trial. The play is the thing. They are divorced from moral, ethical, or social accountability for their amoral soliloquies. Their courtroom posturing is tolerated because under our system, the lawyer's duty is, by definition, to play the role of the zealous advocate for his clients.(5)

More sympathetically stated, a close variant of this view does not deny the moral, ethical, and social dilemma in which lawyers who defend the "indefensible" must find themselves. In this view, however, lawyers who commit to the representation of the unholy criminal defendant know in their heart of hearts that they are doing wrong, but accept a sort of social pass. They are not to be held answerable for their hypocritical advancing of arguments that serve their clients, regardless of the conflicts posed by their personal moral, and ethical views, because, as a society, we have asked them, and ourselves, to refrain from such condemnations.(6)

Lubet's critique of Atticus Finch, however, prompts a third, and I think ultimately more satisfying answer...