The zealous advocacy of justice in a less than ideal legal world.

• Author: West, Robin L.
• Position: Review Essay Symposium: The Practice of Justice by William H. Simon

In The Practice of Justice, William Simon addresses a widely recognized dilemma--the moral degradation of the legal profession that seems to be the unpleasant by-product of an adversarial system of resolving disputes--with a bold claim: Lawyers involved in either the representation of private rights or the public interest should be zealous advocates of justice, rather than their clients' interests. If lawyers were to do what this reorientation of their basic identity would dictate--that is, if lawyers were to zealously pursue justice according to law, rather than zealously pursue through all marginally lawful means whatever ends their clients happen to desire--the moral quality of litigation would improve,(1) as would the reputation of the bar,(2) and likewise the justice of the law itself.(3) But even more telling, for Simon, a system under which lawyers understood the "practice of law" to mean the practice of justice, rather than the zealous but amoral advocacy of clients' ends, would confer meaning and moral purpose in a life presently constructed so as to be dangerously devoid of both.(4)

Lawyers themselves know something is very wrong in the State of Denmark, Simon shows, and have for the better part of at least this century. If we take seriously the "late career," after-dinner speeches and bar association talks given by prominent corporate lawyers,(5) a grim and telling composite emerges of the trajectory of at least many successful lawyers' lives. Lawyers embark on their careers expecting to be engaged in the pursuit of justice, and by the end of a life spent representing corporate clients, come to realize and lament that they have done much the opposite: They have spent their careers not furthering justice at all, but instead doing parasitic work on behalf of faceless corporate clients whose ends are to maximize profit regardless of social consequences, and who expect their lawyers to manipulate the substance and procedures of law to help them do so. The excessive, relentless, and zealous pursuit of the dubious ends of clients by whatever marginally lawful means are available, rather than a life committed to justice, Simon argues, is felt by the most successful members of the retiring bar as a serious, even profound, moral and existential cost.(6) And it is experienced by the practicing bar as a numbing, cynical, and exhausting exercise in Darwinian survival where the message of the market is clear: Do anything less, and you will not survive.

Lawyers' professional lives are presently experienced as amoral, Simon argues, because they are amoral, but not for the reason often given by the members of the retiring bar themselves: That ungentlemanly, unprofessional, market-driven, young lawyers have forgotten their manners in pursuit of the legal buck, and have made life nasty and brutish for everyone.(7) Nor is the lawyer's amorality in any way tied to the nihilistic excrescences of contemporary theoretical understandings of law, as argued by some contemporary scholarship on the subject.(8) Rather, according to Simon, the amorality of lawyering stems directly from the stated ideals and aspirations of the profession itself.(9) The ideal of lawyering espoused by the profession, and memorialized by the various codes of ethics that govern it, strips the lawyer of responsibility for the moral quality of not only his clients' ends but also of his own actions taken on his clients' behalf--and all on the dubious bet that by so doing, the system, in some mechanistic and formalistic manner, will almost miraculously crank out justice as the outcome.

The bet at the center of this "dominant view,"(10) as Simon dubs it, is not a good one--justice is not going to be the miraculous product of a system in which none of the actors are required to pursue it. The lawyer knows this full well, furthermore, and as a consequence both the lawyer and society bear a loss--society by being saddled with a profession that permits and seemingly requires that individual lawyers aggressively pursue injustice, and the lawyer by being saddled with a life-long and deeply hurtful existential alienation from his work. To address the harm, we need, essentially, to reorient the profession by redefining its core moral identity. The lawyer should indeed zealously advocate, but he should zealously advocate for justice, not for the satisfaction of the preferences of his particular clientele.

Simon is not alone in this view, and he is not the first to address the apparent amorality of lawyering with an argument that what the bar must do is drastically restructure the lawyer's adversarial role, rather than explain it to a doubtful public who obstinately fail to appreciate its social value. In fact, an entire school of criticism of adversarial ethics--a criticism which Simon, following convention, calls the "role morality" or sometimes the "personal morality" critique(11)--has, over the last twenty years or so, sown seeds of doubt regarding the dominant view. "Role morality" critics fault the traditional adversarial model for its tendency to limit the moral obligation of the lawyer to his client, and to minimize to almost nothing the ordinary moral obligations that the lawyer, but for his professional role, would owe to others.(12)

The result of this role-defined morality, according to the "role morality" critic, is that the lawyer is correctly perceived by the lay public as a less than ordinarily moral individual: The lawyer, because of his professional adversarial role, need not act in a way that gives equal regard to the moral worth of all. He need not act justly, or honestly, or honorably. He need not, and routinely does not, for example, seek to present a truthful understanding of past events to the world. He can seek to destroy the reputation of those he knows to be upright individuals. He can seek to destroy the credibility of' witnesses he believes to be truthful. He can seek to further his clients' ends so long as they are lawful, although he believes those ends to be socially harmful. He can refuse to alleviate personal suffering of others when he could easily do so simply because his client, for reasons whimsical or worse, refuses to permit it. Most of the ethical dilemmas of lawyering, according to the "role morality" critique, can be attributed to the peculiar diminution of ordinary moral obligation inherent in the lawyer's professional role. And, in most of these situations, the lawyer's professional role, according to the "role morality" critics, is indeed drawn too narrowly. There would be little to lose in terms of justifiable zealous advocacy and much to gain in terms of public trust, social welfare, and professional reputation, were the lawyer's role redrawn to bring into closer alignment "ordinary morality" and "professional morality," and thereby to include rather than exclude some of these otherwise obligatory ordinary moral duties.

Simon's book can perhaps best be read as an internal and friendly critique of this "role morality" argument, and then an attempt to rehabilitate it by resting it on a sounder foundation. It is important to stress, however, before examining the differences between them, how much territory is shared. Bill Simon shares with the "role morality" critics a strong revulsion for the excesses of zealous advocacy, and reaches many of the same conclusions regarding particular cases and common dilemmas. Like the "role morality" critics, for example, Simon urges that lawyers should abstain from only marginally legal procedural tactics that promote their clients' ends through gaming the system rather than engaging its substantive content.(13) Like them, he argues that lawyers should refrain from making outrageous or worse legal arguments that, while arguably true to the letter, clearly frustrate the intent and meaning of the law.(14) Like them, he argues that lawyers should understand their duties as "officers of the court" to impose obligations that extend to non-parties and to the public as well as to the client.(15) Like them, Simon also argues that lawyers should abstain from using even lawful means on behalf of their clients' ends if those means and ends cause substantial injustice to others.(16) Further, like the "role morality" critics, and inspired by Brandeis, he argues that lawyers should understand their role as including, not excluding, an obligation to critically challenge their clients' ends when those ends are technically lawful but nevertheless unjust, at odds with legal obligation broadly understood, or evasive of civic responsibility.(17) Finally, like them, Simon argues that lawyers should understand the work of bringing the law into an ever-closer convergence with the requirements of justice, whether through litigation or law reform, as absolutely central to their legal identity.(18)

For anyone who has followed the development of the "role morality" critique, the harms that Simon identifies and connects with the lawyer's professional role, and the morally outrageous examples he uses to illustrate those harms, are not particularly surprising or new. The argument that Simon makes for his reorientation of the basic ethical obligation of the legal profession, however, is quite new, and more than a little surprising. It is strikingly different from the argument put forward by the "role morality" critics. What lawyers have to do to zealously practice justice, Simon argues, is to be in essence better lawyers.(19) The justice lawyers are or should be morally bound to pursue, Simon reassures us repeatedly, is nothing more and nothing less than the law itself; or as he sometimes puts it, the "legal merits."(20) Lawyers should promote justice, and what justice requires, in any case, is what the law requires. Rather than blindly aim to promote their clients' interests, lawyers in the practice of justice need only do what they are trained to do: seek to vindicate the legally-compelled result.

...