Legal Ethics

Recently I have been reading papers on professional ethics in law, partly out of curiosity and accident and partly as a result of the need to collect CLE credits. The CLE seminars on ethics are interesting for the fact problems addressed – much more so than the academic papers. (Why the examples are so different is an interesting questioning for another day.) The papers often include elaborate argument on the relationship of moral duties to ethical duties (in the sense of professional ethics) with an exception to professional duties of representation of varying degrees when the law is seriously unjust. Why such an exception is included in a theory is understandable. Slavery in the United States is (or was) pretty far into injustice. The twentieth century has its list of horrors, in which lawyers played roles. It would, at the very least, appear better if there were a cogent way of carving cooperation in such moral horrors out of proper professional conduct.

I get puzzled by two kinds of problems with such exceptions, both fairly obvious. First, how does one identify the moral horrors, in the present tense? Second, what is the scope of the effect after one knows what the horrors are? The first involves moral epistemology, how one knows things about morality. Of course, it can be short-circuited by certain views of the metaphysics of morality (so to speak). If morality is purely and simplemindedly conventional, then the epistemological issue is significantly simpler than many other sorts of views. But let us suppose that the ‘metaphysics’ are something other than simple conventionalism or emotivism, and let us suppose we intend the subject of professional ethics to provide guidance to lawyers. Then the problem is pretty easy to see: no duty when the moral horror is present (in some appropriate sense). But when is that? Stick for now with the historical subject of slavery (I think it is fairly easy to pull it forward, but the settled historical assessment is easier to work with). When, approximately would an American lawyer of the first half of the nineteenth century be on notice that the moral horror had grown sufficiently to raise questions of professional duty? The obvious problems of very divided opinions at all levels of society suggests that it is hard question. Where the ‘objective’ status of the horror controls, then the absence of duty rolls back to the inception of the Republic, and the inception of most states (I just don’t recall how Vermont and New Hampshire, e.g., play historically). I think this makes more difference in the context of professional ethics because I cannot see any sense to a professional ethics which is not directly conduct guiding, i.e., it makes no sense to talk of unknown or unknowable professional duties. This is, in part, because the project itself is intrinsically bound up in roles which are wholly creatures of social conventions. Professional ethics may well end up overlapping with or being subsumed (in part) by morality (or ordinary moral duties). But the “professional” does work, and the project aims at practical guidance to practicing lawyers. So, if there is to be an exception of some kind, it should be one whose boundaries are identifiable.

The second problem (or set of problems) has to do with the scope of infection. Slavery infected the Constitution. Does the exception stay confined to the most immediate embodiments of the horror? I.e., no duty to aid in enforcing laws enforcing slavery (which itself is going to be an interesting sorting job) or does it infect everything in the law that arguably supports the horror? None of these points is notably original – I’ve given up on the thought of originality – but they seem to me to remain vital, alive. Particularly as it not very hard to pull the issues forward.

What to do with Judge (?) Moore?