Essay Legal Ethics as “political Moralism” or the Morality of Politics

As a law student with some background in moral philosophy and applied ethics, naturally I was drawn to thinking about the big ethical questions facing lawyers. “Read Lawyers and Justice, by David Luban,”1 my legal ethics seminar professor suggested. I did, and I was immediately hooked. Lawyers and Justice was a powerfully argued, elegant, and persuasive refutation of the view that the obligation of zealous client representation alone exhausts a lawyer’s moral obligations. Professor Luban insisted that lawyers remain moral agents, fully subject to the requirements of ordinary morality, even when acting in a professional role.2 If there is no moral justification for action taken in a professional capacity, such as withholding information that could save a person’s life if disclosed, then the lawyer must accept the criticism that would be leveled against a similarly situated nonprofessional.3 When I entered law teaching several years later, I decided that legal ethics was my scholarly calling, but Professor Luban’s work created a problem for me: What was left to say? Professor Luban and others had devastatingly criticized the “neutral partisanship” conception, that lawyers’ “duty of loyalty to their clients means they must, if necessary, do everything the law permits to advance their clients’ interests—regardless of whether those interests are worthy or base, and regardless of how much collateral damage the lawyer inflicts on third parties,”4 leaving it with no plausible philosophical underpinning. Lawyers continued to adhere to neutral partisanship, but the conventional wisdom among legal ethics theorists was that Professor Luban’s “moral activism” conception was the best way to understand the relationship between ordinary morality and legal ethics.