Symposium Introduction: In Pursuit of Justice.

• Author: Rhode, Deborah L.

The Opening sentence of William Simon's The Practice of Justice observes: "No social role encourages such ambitious moral aspirations as the lawyer's and no social role so consistently disappoints the aspirations it encourages".(1) A reader of the remaining text might add that no legal ethics scholar encourages greater expectations than William Simon and that no legal ethics scholar so consistently avoids disappointing his audience. This book explores the themes that Simon has pressed with great insight and influence over the last two decades. It richly deserves the attention of anyone concerned with professional responsibility, as well as this symposium.

The point of this brief introduction is to give some sense of the scope and complexity of the debates that follow. Although the essays vary considerably in focus, certain common themes emerge. Like most leading ethics experts, the participants here are all FOBs--friends of Bill--in important respects. They share his premise that the bar's prevailing ethical norms are fundamentally flawed and that their inadequacies carry a substantial cost for both the profession and the public. Where the commentators differ, both with Simon and each other, is on plausible prescriptions. While sharing Simon's commitment to the "practice of justice," the essays that follow raise substantial questions about the meaning of justice and the strategies to achieve it.

I.

Simon targets his critique at what he identifies as the "Dominant View" of legal ethics: the approach "reflected in the bar's disciplinary codes, the case law on lawyer discipline, and the burgeoning commentary on professional responsibility."(2) The "core principle" of this approach is neutral nonjudgmental partisanship: "the lawyer must--or at least may--pursue any goal of the client through any arguably legal course of action and assert any non-frivolous legal claim."(3) In the Dominant View, the "only ethical duty distinctive to the lawyer's role is loyalty to the client. Legal ethics impose no responsibility to third parties or to the public different from that of the minimal compliance with law that is required of everyone."(4) Although, in some contexts, the Dominant View is qualified by obligations to others besides clients, it remains the "starting point and presumptive fallback position" in debates over legal ethics.(5)

Simon, like other leading scholars in the field, sees this norm as offering an impoverished account of professional responsibility. In the first half of the book, he effectively challenges the standard defenses of the Dominant View. The first line of defense involves the importance of protecting individual rights and autonomy. While acknowledging those values, Simon finds "no basis for preferring the client's autonomy to the autonomy of the people with whom the client is in conflict."(6) Similarly, while supporting values such as loyalty, trust, and empathy, which underpin the lawyer-client relationship, Simon questions why those values are more fundamental than others that the relationship may threaten. Why should lawyers empathize only with those paying their fees and not with third parties, whose physical safety and economic livelihoods may be at risk from client conduct?(7)

Simon also challenges the bar's second major justification of the Dominant View: that whatever the consequences of zealous advocacy in individual cases...