The Practice of Justice: A Theory of Lawyers' Ethics / Edition 1

by William H. Simon

Overview

Should a lawyer keep a client's secrets even when disclosure would exculpate a person wrongly accused of a crime? To what extent should a lawyer exploit loopholes in ways that enable clients to gain unintended advantages? When can lawyers justifiably make procedural maneuvers that defeat substantive rights? The Practice of Justice is a fresh look at these and other traditional questions about the ethics of lawyering. William Simon, a legal theorist with extensive experience in practice, charges that the profession's standard approach to these questions is incoherent and implausible.

At the same time, Simon rejects the ethical approaches most frequently proposed by the profession's critics. The problem, he insists, does not lie in the profession's commitment to legal values over those of ordinary morality. Nor does it arise from the adversary system. Rather, Simon shows that the critical weakness of the standard approach is its reliance on a distinctive style of judgment—categorical, rule-bound, rigid—that is both ethically unattractive and rejected by most modern legal thought outside the realm of legal ethics. He develops an alternative approach based on a different, more contextual, style of judgment widely accepted in other areas of legal thought.

The author enlivens his argument with discussions of actual cases, including the Lincoln Savings and Loan scandal and the Leo Frank murder trial, as well as fictional accounts of lawyering, including Kafka's The Trial and the movie The Verdict.

Product Details

ISBN-13:	9780674002753
Publisher:	Harvard University Press
Publication date:	03/15/2000
Edition description:	New Edition
Pages:	264
Product dimensions:	6.00(w) x 9.00(h) x 0.70(d)

About the Author

William H. Simon is Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University.

Table of Contents

Introduction

An Anxious Profession

The Moral Terrain of Lawyering

The Dominant View and Alternatives

A Preview

False Starts

A Right to Injustice

The Entitlement Argument

The Libertarian Premise

The Positivist Premise

Libertarianism versus Positivism

The Problem of Retroactivity

The Problem of Private Legislation

Conclusion

Justice in the Long Run

Confidentiality

The Adversary System and Trial Preparation

Identification with Clients and Cognitive Dissonance

The Efficiency of Categorical Norms

Aptitude for Complex Judgment

Conclusion

Should Lawyers Obey the Law?

Lawyer Obligation in the Dominant View

Positivist versus Substantive Conceptions of Law

The Pervasiveness of Implicit Nullification

Some Clarification about Nullification

Nullification versus Reform

Tax versus Prohibition

Determination versus Obligation

A Prima Facie Obligation?

Divorce Perjury and Enforcement Advice Revisited

Conclusion

Legal Professionalism as Meaningful Work

The Problem of Alienation

The Professional Solution

The Lost Lawyer

The Brandeisian Evasions

Self-Betrayal

Conclusion

Legal Ethics as Contextual Judgment

The Structure of Legal Ethics Problems

Some Objections

The Moral Terrain of Lawyering Revisited

Is Criminal Defense Different?

Contested Issues

Weak Arguments for Aggressive Criminal Defense

Social Work, Justice, and Nullification

The Stakes

Conclusion

Institutionalizing Ethics

A Contextual Disciplinary Regime: The Tort Model

Restructuring the Market for Legal Services

Conclusion

Notes

Further Reading

Acknowledgments

Index

Editorial Reviews

William Simon is the George Orwell of the legal profession, a fearless, bluntly honest and clear-sighted observer whose sharp critique of lawyers' practices arises from his deep attachment to their ideals. Simon's book is clearly one of the most important statements of the aims, purposes, and practical ethics of law practice ever to have appeared in this legal culture. His ambition is to reconceptualize the entire subject, to give a thorough exposition and critique of the ethical views that currently permeate law practice in this society, and to put forward a fully-fledged alternative. The special power and appeal of Simon's approach consists in that he views legal ethics neither as solely tied to specialized rules or roles nor as a branch of personal morality, but as necessarily and intimately connected with the justice-serving goals of the legal system. His analysis of how lawyers can cope with the inevitable complexities and ambiguities of a legal system shot through with conflicting purposes is especially brilliant. Unlike so much writing on professional ethics, Simon's is neither naively idealistic nor cynical and demoralized: it is impressive because his views are grounded in considerable experience, personal and vicarious, of how lawyers actually behave—every point is illustrated by thickly described examples of real practice situations—and are also linked to basic conceptions of jurisprudence and social theory. It would be hard to find a better illustration in legal literature of how theory can inform and structure inquiries into practice, and the knowledge of practice in turn help to qualify and amplify theoretical insight. Original and unconventional, Simon's work challenges almost all of the prevailing orthodoxies of legal ethics. Whether or not lawyers are ultimately convinced by Simon's efforts to reconstruct legal ethics on a foundation of lawyering as a justice-seeking profession, if they read his work carefully they will never be able again to think about their work in the comfortable old formula of zealous advocacy in an adversary system.

Yale Law School - Robert W. Gordon

Though slender and unpretentious, William Simon's new book, The Practice of Justice, packs a wallop. Aiming at nothing less than a radical rethinking of lawyer's ethics, it proposes a new conception of our professional responsibilities and challenges us to examine critically the conventional norms of our professional role. Along the way, it explores the scope and underpinning of our loyalty to clients, our obligations to protect the rights of third parties and our duty to promote justice...Simon's writing is lucid, well-organized and jargon-free...The cogency of [his] critique of the dominant view...shakes the grounds on which we currently practice...Thus, Simon's work is profoundly unsettling, even disorienting, both intellectually and emotionally. Therein lies its enormous value.

New York Law Journal - James M. Altman

Thus, it is easily argued that lawyers should practice under a very different ethical regime. The problem is, then, what should that regime look like? How should we expect lawyers to act in the current context? Simon offers a valuable answer, to be sure…It hasn't closed the debate over legal, but jump-started it by making a serious and important contribution to thinking about the practice of law. For that he merits great praise.

The Law and Politics Book Review - Thomas M. Hilbink

William Simon is the George Orwell of the legal profession, a fearless, bluntly honest and clear-sighted observer whose sharp critique of lawyers' practices arises from his deep attachment to their ideals. Simon's book is clearly one of the most important statements of the aims, purposes, and practical ethics of law practice ever to have appeared in this legal culture. His ambition is to reconceptualize the entire subject, to give a thorough exposition and critique of the ethical views that currently permeate law practice in this society, and to put forward a fully-fledged alternative. The special power and appeal of Simon's approach consists in that he views legal ethics neither as solely tied to specialized rules or roles nor as a branch of personal morality, but as necessarily and intimately connected with the justice-serving goals of the legal system. His analysis of how lawyers can cope with the inevitable complexities and ambiguities of a legal system shot through with conflicting purposes is especially brilliant. Unlike so much writing on professional ethics, Simon's is neither naively idealistic nor cynical and demoralized: it is impressive because his views are grounded in considerable experience, personal and vicarious, of how lawyers actually behave—every point is illustrated by thickly described examples of real practice situations—and are also linked to basic conceptions of jurisprudence and social theory. It would be hard to find a better illustration in legal literature of how theory can inform and structure inquiries into practice, and the knowledge of practice in turn help to qualify and amplify theoretical insight. Original and unconventional, Simon's work challenges almost all of the prevailing orthodoxies of legal ethics. Whether or not lawyers are ultimately convinced by Simon's efforts to reconstruct legal ethics on a foundation of lawyering as a justice-seeking profession, if they read his work carefully they will never be able again to think about their work in the comfortable old formula of zealous advocacy in an adversary system.

— Robert W. Gordon

Yale Law School

Thus, it is easily argued that lawyers should practice under a very different ethical regime. The problem is, then, what should that regime look like? How should we expect lawyers to act in the current context? Simon offers a valuable answer, to be sure…It hasn't closed the debate over legal, but jump-started it by making a serious and important contribution to thinking about the practice of law. For that he merits great praise.
— Thomas M. Hilbink

The Law and Politics Book Review

Though slender and unpretentious, William Simon's new book, The Practice of Justice, packs a wallop. Aiming at nothing less than a radical rethinking of lawyer's ethics, it proposes a new conception of our professional responsibilities and challenges us to examine critically the conventional norms of our professional role. Along the way, it explores the scope and underpinning of our loyalty to clients, our obligations to protect the rights of third parties and our duty to promote justice...Simon's writing is lucid, well-organized and jargon-free...The cogency of [his] critique of the dominant view...shakes the grounds on which we currently practice...Thus, Simon's work is profoundly unsettling, even disorienting, both intellectually and emotionally. Therein lies its enormous value.

— James M. Altman

New York Law Journal

Though slender and unpretentious, William Simon's new book, The Practice of Justice, packs a wallop. Aiming at nothing less than a radical rethinking of lawyer's ethics, it proposes a new conception of our professional responsibilities and challenges us to examine critically the conventional norms of our professional role. Along the way, it explores the scope and underpinning of our loyalty to clients, our obligations to protect the rights of third parties and our duty to promote justice...Simon's writing is lucid, well-organized and jargon-free...The cogency of [his] critique of the dominant view...shakes the grounds on which we currently practice...Thus, Simon's work is profoundly unsettling, even disorienting, both intellectually and emotionally. Therein lies its enormous value.

— James M. Altman

New York Law Journal