THE LAWYERS PERSPECTIVE

THE GAP BETWEEN INDIVIDUAL DECISIONS AND COLLECTIVE CONSEQUENCES IN LEGAL ETHICS

Andrew B. Ayers *
(Forthcoming, JOURNAL OF THE LEGAL PROFESSION (2011))

__________________________

Legal ethicists often make arguments about what will happen if lawyers in general behave in a certain way. They sometimes assume that these arguments about the collective consequences of lawyers actions can help individual lawyers decide what they have most reason to do. But collective consequences are not necessarily reasons for individual lawyers to choose one action over another. To understand why arguments from collective consequences sometimes fail, it is important to understand two ways of looking at legal ethics. The first is the policy-makers perspective. Policymakers are necessarily concerned with collective consequences, because legal rules and social norms operate generally. But individual practitioners do not make decisions about what lawyers collectively will do. And they often know that their individual choices will not have any real impact on collective goods. For example, society generally may depend on lawyers to make sure that unpopular views are represented in court. But my individual decision to turn away an unpopular client will not undermine that value. One solution to this problem is for lawyers to find intrinsic value in the kinds of actions which, in the aggregate, promote good consequences. Legal ethicists should aim to help lawyers understand how it can be intrinsically valuable for them to act in certain ways even when their individual choices will not affect collective goods. But intrinsic value can be understood only from the lawyers perspective.
* Assistant Solicitor General, Office of the Solicitor General of New York. The views expressed here are the authors alone. Thanks to Rajit A. Dosanjh, Andrea Oser, Alice Woolley, Barbara D. Underwood, and especially James B. Ayers for comments, consultation, and help. Emily Ayers, Barbara and Thomas Mitchell, James B. Ayers, Miriam Trementozzi, and Lauren K. Ayers watched my children while I wrote this article. Comments gratefully received at: AndrewBAyers@gmail.com.

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TABLE OF CONTENTS I. PERSPECTIVES AND REASONS IN LEGAL ETHICS .....................................5 A. The Practitioner and the Policy-Maker .........................................5 B. Which Perspective Should Legal Ethics Take? .............................8 C. Perspectives as Reasons .................................................................15 D. What is the Standard Conception of Legal Ethics a Conception Of?..............................................................................17 E. Two Minor Puzzles, Solved............................................................20 II. THE GAP BETWEEN AGGREGATE CONSEQUENCES AND LAWYERS REASONS ..............................................................................................25 A. Aggregate Consequences ................................................................26 B. Indirect Strategies..........................................................................32 C. The Gap ..........................................................................................37 D. Can We Avoid the Gap? .................................................................46 E. Should We Ignore the Gap? ...........................................................49 III. HOW INTRINSIC VALUES BRIDGE THE GAP ..........................................51 A. How Intrinsic Value Works............................................................55 1. The First Requirement: Good Aggregate Consequences.........................................................................58 2. The Second Requirement: Secession or Stability? ...............59 B. Intrinsic Values in Legal Ethics ....................................................66 C. Where Should We Look for Stabilizing Values?............................73 CONCLUSION ..............................................................................................79

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Trying to see the value of humanity from the third-person perspective is like trying to see the colours someone sees by cracking open his skull. Christine Korsgaard 1

The protagonists of Raymond Chandlers detective stories sometimes come across the dead or unconscious bodies of people who owe them moneyusually people who had also tried to kill or cheat the detective earlier in the story. When the detective finds the body, he digs out the mans wallet and removes some bills. Then he digs out his own wallet, and puts back into the other mans wallet the correct change. 2 It is one of literatures nicer illustrations of the concept of intrinsic valueof actions or dispositions whose value does not depend on their consequences. Chandlers detective has no illusion that his act of honesty will make his society a better place. His ethical action will not help prop up social values like honesty, dignity, and mutual trust, because Chandlers society has no such values; it is rotten to the core. That is precisely why we admire Chandlers detective for doing the right thing: not because society depends on his good deeds, but because nothing depends on them. He does them for their own sake. One way to understand the challenge facing writers on legal ethics is this: we want to find a way of explaining or justifying the kind of actions that seem admirable in Chandler.
1

CHRISTINE M. KORSGAARD, THE SOURCES OF NORMATIVITY 124 (1996).

2 For variants on this pattern, see RAYMOND CHANDLER, Pickup on Noon Street, in COLLECTED STORIES 425, 459-460 (2002); Pearls are a Nuisance, in COLLECTED STORIES 935, at 984. In another story, the detective knocks unconscious a man who had kidnapped and beaten him: I went through my pockets. The money was gone from my wallet. I went back to the man with the white coat. He had too much money for his job. I took what I had started with . . . RAYMOND CHANDLER, FAREWELL MY LOVELY 173 (1940, repr. 1992). There is more than one level of irony when the detective says, elsewhere, Im a Tibetan monk, in my spare time. CHANDLER, FAREWELL, MY LOVELY at 130.

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We want to identify the social values and collective goods that lawyers promotejustice, freedom, democratic legitimacy, and so onbut we dont want lawyers to act ethically only when they think it will promote those goods. We want to give lawyers a reason to act well when acting well will have no good consequences. We want to tell lawyers what sorts of things should be done for their own sake. There are other ways to understand the challenge facing writers on legal ethics. Rather than asking what lawyers should do in specific situations of practical choice, we could ask how the law of lawyering, and the institutions and practices governed by it, can best help our society achieve its collective goals. Legal ethicists can imagine themselves not Chandlerian detectives, but as benevolent dictators trying to design the best possible society. We could approach legal ethics, in other words, as policy-makers. Both of these perspectives are important. But if legal ethicists want to help lawyers understand why they should follow ethical norms even when no good consequences flow from their choices, they will have to take the lawyers perspective. This article proceeds in three parts. Part I explains the difference between the policy-makers perspective and the practitioners perspective. It does so in terms of practical reasoning. Perspectives can be usefully understood in terms of what lawyers have reason to do. When we take the policymakers perspective, we ask what lawyers collectively have most reason to do. But when we take the practitioners perspective, we ask what I individually have most reason to do. Part II explains why these different questions elicit importantly different answers. Legal ethicists often argue that lawyers should act in a certain way because society will benefit in certain ways if they do. In other words, they argue that a certain kind of lawyerly action, in the aggregate, will have desirable consequences. Aggregate consequences give the policy-maker a good reason to adopt a particular policy. But from the perspective of an individual practitioner, it is often unlikely that a specific choice will have any impact on the collective good in question. There is a gap, in other words, between the claim that Society

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will benefit if lawyers in general do X and the claim that I, today, should do X. Part III explores how the gap can be crossed. For cases in which the gap presents itself, it will be necessary to claim that lawyers should choose actions that collectively bring good consequences even when their specific choice will not bring those consequences. In other words, it will be necessary to claim that the lawyer should choose the action that is intrinsically good good without regard to its consequences. Adopting Bernard Williamss conception of intrinsic value, I argue that actions (or dispositions or feelings) can be regarded as intrinsically good on two conditions. The first is that the action must have good aggregate consequences. The second is that the value of the action must be stable in relation to the agents other values. The article ends with some ideas about why Daniel Markovitss recent attempt to show the intrinsic value of one lawyerly virtue is unsuccessful, and why other approaches might be more promising. I. PERSPECTIVES AND REASONS IN LEGAL ETHICS A. The Practitioner and the Policy-Maker If we take the policy-makers perspective, we can approach legal ethics much in the way we approach other legal subjects. A theory of legal ethics constructed from this perspective would be much like theories of constitutional law or contract lawtheories that aim to illuminate the underlying structure and purposes of a body of law and the social institutions it regulates. From this perspective, the subject matter of legal ethics is a specific body of law and the social institutions that it regulates, including law firms and other organizations within which lawyers practice, attorney/client relationships, and the adversary system in general. Policy-makers have reason to be concerned both with law and with social norms. Policy-maker as I use the term means a lawmaker who writes or re-writes the lawyering law itself or a

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judge who interprets it; but it also includes bar association leaders concerned with the ethical character of the profession. Policy-makers often attempt to influence lawyers behavior through law, but they sometimes try to influence lawyers behavior through the social norms and values that influence lawyers behavior. Those norms are non-hierarchical in nature; we do not empower legislators or committees to determine what is morally admirable. So the term policy-maker should not be understood to imply any formal authority. It includes anyone who organizes a conference on civility, or writes a book designed to persuade lawyers that it is admirable to behave in a certain way. 3 It is common for scholarswho frequently make claims about which legal rules are best and which social norms are justifiedto take the policy-makers perspective. A different perspective is the perspective of the practicing lawyer. 4 Practicing lawyers live under the rules and norms and within the institutions designed by policy-makers. For the practicing lawyer, the central problem of legal ethics is not how the system should be designed, but how to act within the system as she encounters it. From the practitioners perspective, a theory of legal ethics is useful insofar as it helps give guidance about practical decisions. Practicing lawyers are necessarily concerned about the law of lawyering. It governs their behavior. But they face specific choices, relating to that body of law, that are different from the policy-makers choices. They must decide, for example, whether to comply with the law or disobey it in a particular situation. Practitioners must also decide how to act when the law leaves a choice entirely to her discretion. Many legal ethics scholars write about the lawyers role. It can be seen from either perspective. But the questions that the
As Robert Ellickson notes, it is difficult for individuals, or even groups, to manipulate social norms intentionally. ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES 152-53 (1991).
3 4 Murray Schwartz noted the difference between what he called the personal and societal perspectives. Murray J. Schwartz, The Zeal of the Civil Advocate, in THE GOOD LAWYER: LAWYERS ROLES AND LAWYERS ETHICS 150, 152 (David Luban ed. 1984).

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practitioner and the policy-maker have reason to ask about that role are different. The policy-maker asks what social norms should apply to a given role in general. The practitioner can also ask whether it makes sense for her on specific occasions to step into a certain role, and, if so, how far. A father can ask whether he should be fatherly today, and a lawyer can ask whether it makes sense to be lawyerly in specific situations. The policy-makers perspective focuses on the content of the lawyers role itself, rather than on the choices facing individual lawyers who inhabit that role. It focuses on the hat that lawyers wear, rather than the individuals who wear it. When writers discuss the lawyers role from the systems perspective, they see the role in the abstract, as one element of a complex social institution. Much as we might distinguish the experiences and decisions of any specific American president from the institution of the presidency, we can distinguish the lawyers role, as these theories understand it, from the specific experiences and decisions faced by individual lawyers who act in that role. Just as any American president may have interests that diverge from the interests of the office, an American lawyer may have interests that diverge from the interests of the lawyers role. Practitioners and policy-makers need different things from legal ethicists. Policy-makers need theories of legal ethicsif indeed they doto help them choose the best rules, design the best institutions, and influence social norms in ways that will help society realize its goals. The policy-maker might seek help from legal ethicists with pursuing goals like advancing social justice, increasing public trust in the profession, lowering levels of alcoholism and depression among lawyers, or finding the right metaphors (hired gun or officer of the court?) to express the social expectations to which lawyers should be subject. Practitioners, on the other hand, need theories of legal ethicsif indeed they doto help them decide how to act in situations of practical choice. From the practitioners perspective, the purpose of theoretical scholarship in legal ethics is action guidance. The practitioner might seek help from legal ethicists in pursuing goals like serving her client well while being honest

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with the court, avoiding a conflict of interests, or preserving her self-respect. One of the distinctive features of the policy-makers perspective is its generality. Policy-makers consider what lawyers in general should do; the practitioner considers what to do in a specific situation. This means that the practitioner can choose to do something she would not encourage others to do in the same situation. She can also choose to act in a way that is inconsistent with the way she usually acts in comparable situations. Whether either of these would be good choices is sometimes a difficult question; the point here is that it is a question that arises for the practitioner, but not usually for the policy-maker. Of course, policy-makers can make exceptions to policies. But an exception to a rule is usually an exception for anyone who fits its criteria; exceptions to rules are themselves general rules. It is true that policy-makers sometimes act in truly non-general ways. Judges sometimes fail to follow the precedents that generally apply to situations like the one before them. Legislatures sometimes pass private bills that apply to only one person. But when policy-makers act in these non-general ways, they raise questions about whether they are making good policy, andon some accountswhether they are making policy at all. 5 The questions that arise about the generality or generalizability of individual choices are very different from the questions about the generality of policy-makers choices, as Part II of this article will explain. B. Which Perspective Should Legal Ethics Take? Legal ethicists have tried to construct theories that are useful both to practicing lawyers and to policy-makers. For example, scholars who focus on legal doctrineon the law of
5 See LON L. FULLER, THE MORALITY OF LAW 46 (rev. ed 1969) (The first desideratum for subjecting human conduct to the governance of rules is an obvious one: there must be rules. This may be stated as the requirement of generality.).

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lawyeringtake the practitioners perspective when they offer advice on how to comply with the law. On the other hand, they take the policy-makers perspective when they debate whether existing doctrines should be modified. In legal ethics scholarship that focuses on more theoretical questionswhat is sometimes called philosophical legal ethicsmost writers aim to produce theoretical accounts of the values that support the legal rules and social norms governing lawyers conduct. These theoretical accounts can be understood as serving either or both of two purposes. First, they aim to help practicing lawyers decide how to act and which attitudes to take. Second, they aim to help policy-makers understand how best to structure the rules and social institutions that affect lawyers behavior. Many of the principles offered by legal ethics theorists are framed as principles that aim to guide individual lawyers in their practical decision-making. William Simon, for example, claims that [l]awyers should take those actions that, considering the relevant circumstances of the case, seem likely to promote justice. 6 Simon wants individual lawyers to apply this principle in their decision-making. In that sense, he is taking the practitioners perspective. But he also makes claims about the institutional structures that would support lawyers who followed his maxim. 7 In that sense, he is also taking the policy-makers perspective. Some writers explicitly argue for the importance of one perspective or the other. Alice Woolley argues that the policymakers perspectivewhich she usefully calls the societal perspectiveis the only perspective legal ethicists should take. 8 Woolley argues that legal ethicists should treat their subject as a field of doctrinal analysis; their project should be to expound and
6 7

WILLIAM H. SIMON, THE PRACTICE OF JUSTICE 138 (1999).

Simon discusses, for example, the possibility of a restatement of lawyering law that would clarify what promotes justice in many recurring situations, id. at 197-198, and the possibility of lawyers making explicit in their retainer agreements that they practice under his maxim, id. at 210-212.
8 Alice Woolley, If Philosophical Legal Ethics Is the Answer, What is the Question?, 60 U. TORONTO L.J. 983, 997 (2010).

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criticize lawyering law in the same way that legal scholars in other areas expound and criticize other kinds of substantive law. 9 For Woolley, the question framing the analysis should be not Can a good lawyer be a good person? but rather Can a society with good lawyers be a good society? 10 Woolley thinks that legal ethicists should not take the lawyers perspective because she sees that perspective as a selfinterested one. Legal ethics from the lawyers perspective, as she understands it, involves a phenomenological investigation of the ethical experience of the lawyers life. 11 It is concerned with the lawyers identification of her life as ethical or unethical, as well lived or the converse. 12 This, for Woolley, is not only an uninteresting focus but a troubling one. Woolley argues that the challenge to a lawyers ability to lead a well-lived life exists independently of the morality (or immorality) of the lawyers role and should not be what motivates our inquiry into the morality of the lawyers role nor affect the conclusions that follow from that inquiry. 13 Legal ethics theory has focused too much on the ethical experience of the lawyers life and should focus, instead, on what, in a free and democratic society, the role of the lawyer should be.14 Legal ethicists should not give priority to the point of view of the individual lawyers conscience, Woolley argues, because that would make the lawyer an especial object of social concern, greater than that of others, and doing so seems impossible to justify on any impartial basis. 15 [D]emonstrating the ethical problems with the lawyers life does not necessarily have any relevance to the moral
9 Id. at 1001 (Legal ethics is itself legal doctrine, has the form of legal doctrine, and must be engaged with in that way.).

Id. at 987. Woolley aptly describes writers who take this approach as trying to articulate the moral foundations of the lawyers role from the perspective of a democratic society. Id. at 997.
10 11 12 13 14 15

Id. at at 987. Id. Id. at 994. Id. at 987. Id. at 998.

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justification for what lawyers do, or any implications for what lawyers do or should be required to do. 16 For Woolley, the ethical quality of lawyers lives is not worthy of special concern, at least not when it is opposed to the legitimate interests of society in general. She analogizes legal ethics to the rules governing the conduct of soldiers and immigration officials, arguing that in our analysis of the merits of those rules, we do not focus significantly on questions such as, Will an immigration officer lead a well-lived life?17 This is not obviously correct. If society asks members of a certain profession to sacrifice some interest of theirs for societys good, it is appropriate to expect some special concern for them. It might even be appropriate for society to forego some benefits in the name of reducing harms to professionals who sacrifice for it. (Of course, it is an open question whether lawyers are anything like soldiers.) That said, we can see Woolleys point. Even if someone should be concerned about lawyers well-being, why should it be legal ethicists? Bradley Wendel formulates the thought this way: Unless one is prepared to argue that the obligations of a professional role should be modified to reduce immorality from a first-person perspective, what business is it of legal ethics that lawyers may feel that their lives are not well lived? 18 We should keep separate two issues. If the only problem is that lawyers feel that their lives are not well-lived, then it is a problem for psychologists and career counselors, not ethicists. It is like the problem of doctors feeling squeamish about blood. But if lawyers rightly feel that their lives are not ethically admirable, then legal ethicists may have work to do. To know whether lawyers might rightly feel that their lives are not admirable, we will have to understand not just whether
Id. at 1001. Id. at 1000.

16 17

18 W. Bradley Wendel, Methodology and Perspective in the Theory of Lawyers' Ethics: A Response to Professors Woolley and Markovits, 60 U. TORONTO L.J. 1011, 1018 (2010).

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the lawyers role is justified from societys perspective, but also whether lawyers could have any reason to be ethically troubled that is not apparent from the systems perspective. If there is nothing lawyers can see that the system cannot, then there is no separate ethical question to be asked from the lawyers perspective, and lawyers feelings of discomfort will be no business of the ethicists. Lawyers will be useful to ethicists only as canaries, whose reactions warn us when the gas of injustice seeps into the mine-shafts of the law. This is Wendels view: the first-personal perspective is epistemically usefulin that it gives us information about how well or poorly our moral and political ideals have been implementedbut not intrinsically significant. 19 That is the right viewif the lawyers perspective has nothing substantive to add to legal ethics. Some legal ethicists disagree with the claim that the lawyers perspective is not worth taking. 20 Recently, the case for taking the lawyers perspective has been made forcefully by Daniel Markovits, whose first major work on the subject was titled Legal Ethics from the Lawyers Point of View. 21 Markovits begins from the observation that even if the adversary system is justified overall, it still seems to require lawyers to take actions that are not, themselves, admirable. 22 The norms that form the core of adversary advocacy, according to Markovits, require lawyers to be guilty of professional vices, which place a significant ethical burden on lawyers integrity. 23 A system that is justified from the policy-makers perspective, Markovits argues, can still be ethically unappealing from the practitioners perspective.
19 20

Id. at 1018-19.

Not many writers want to exclude first-personal concerns entirely from legal ethics. Tim Dare, for example, thinks they represent one important strand of critiques of the standard conception. Tim Dare, Philosophical Legal Ethics and Personal Integrity, 60 U. TORONTO L.J. 1021, 1024 (2010).
21 Daniel A. Markovits, Legal Ethics from the Lawyers Point of View, 15 YALE J. L. & HUM. 209, 223 (2003).

Daniel Markovits, A MODERN LEGAL ETHICS: ADVERSARY ADVOCACY IN A DEMOCRATIC AGE 2 (2008).
22 23

Id. at 104.

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Markovits does not claim that the lawyers perspective is the only perspective that matters. He argues at length that the institutions of lawyering are themselves morally justified from societys perspectivefrom what I am calling the policy-makers perspective. 24 But he argues that the lawyers perspective must be understood as separately and importantly relevant. For Markovits, the principal question that arises when we take the lawyers perspective is whether it is possible to interpret lawyers actions in a way that will make them seem appealing to lawyers themselves. The question is whether [t]he life of the lawyer is worthy of commitment. 25 As he writes, lawyers naturally and for good reason wish to conceive of themselves as not vicious at all, 26 even if it is better for society that they act in the vicious ways their role requires. 27 The idea that lawyers roles require acts that threaten their integrity is one of the oldest ideas in legal ethics theory. 28 Wendel and Dare acknowledge that it is a problem, but their solution is simply for the lawyer to give up any of her ideals that are incompatible with lawyering. Wendel calls this incorporationist solution. 29 The agent is supposed to incorporate the values associated with a professional role into
24 25 26

Id. at 171-211. Id. Id. at 107.

27 It is important to distinguish the philosophical sense of vicious, meaning possessed of vices of character, from the more colloquial sense meaning [f]ull of malice or spite; malignantly bitter or severe. Vicious, Oxford English Dictionary Online, visited February 21, 2011. Cf. Lou Reed, Vicious, on TRANSFORMER (1972) (When I see you walking down the street / I step on your hands and I mangle your feet / You're not the kind of person that I want to meet / Oh, baby, youre so vicious).

In a seminal article, Wasserstrom worried that even if lawyers roles are justified, the lawyer qua lawyer will be encouraged to be competitive rather than cooperative; aggressive rather than accommodating; ruthless rather than compassionate; and pragmatic rather than principled. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 13 (1975).
28 29 W. BRADLEY WENDEL, LAWYERS AND FIDELITY TO LAW 163 (2010); TIM DARE, THE COUNSEL OF ROGUES? A DEFENSE OF THE STANDARD CONCEPTION OF THE LAWYERS ROLE 146 (2009).

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her own practical identity. 30 Then she can remain true to her own personal moral commitments while acting well within the role. 31 This is only a solution if there is no real problem to begin with. Integrity, as Wendel sees it, is a problem that arises from inconsistent commitments; and as long as the norms of legal ethics are justified from the policy-makers perspective, there is no reason for lawyers to resist incorporation. Markovits argues that there is such a reason. Where many other writers see integrity as merely a psychological problema risk that lawyers will experience alienation or related unhealthy psychological states 32 Markovits sees integrity as more than just a psychological concern. He wants to show that lawyers first-personal concerns about their integrity are genuinely ethical in nature and that a complete theory of legal ethics must take them into account. This gives rise to a number of interesting issuesparticularly the question whether lawyers concerns about their own integrity are a legitimate subject for ethical inquirythat will not be addressed in this article. Instead, I will argue that there are other concerns visible from the lawyers perspective, and that legal ethicists have sometimes run into serious conceptual problems because they overlooked those concerns. Markovits, like Woolley, sees the lawyers perspective as mainly a self-interested onenot in the sense of pursuing ones own economic or financial interests, but in the sense of being primarily concerned with ones own ethical well-being. The practitioners perspective, I will claim, involves much more than ones own well-being. To explain how this is so, we will need to explore what it means to take a perspective.

30 31

Wendel, supra note 29, at 163. Id.

32 See, e.g., Gerald J. Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. REV. 63 (1980); Gerald J. Postema, Self-Image, Integrity, and Professional Responsibility, in THE GOOD LAWYER, supra note 4, at 286.

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To better understand the difference between the lawyers perspective and the policy-makers perspective, it will be useful to bring in the concept of practical reasons. Practical reasons are simply the reasons we have for choosing one option over another in any situation. They are reasons for doing or feeling somethingany consideration that counts in favor of an action, emotion, commitment, or attitude. 33 The term reason is used in philosophy in much the same way it appears in everyday speech. I thought about it, we might say, but I realized that even though I wanted to do X, I didnt really have a reason for doing it. When we reflect on ethical matters, we look for reasons for or against each of our choices. And when we want to justify our choices to someone else, we offer our reasons for it. 34 The goal of ethical philosophy is to help
33 T.M. SCANLON, WHAT WE OWE TO EACH OTHER 17 (2000). Readers who desire a better definition of reason are referred to Scanlons argument that no better definition can be offered, id., and Parfits argument to the same effect. DEREK PARFIT, 1 ON WHAT MATTERS 31 (2011). Practical reasons are often referred to as reasons for action, which is slightly misleading; the word action in that phrase must be understood to include internal or mental actions like hoping, being open-minded, or feeling disgusted. Practical reasons are distinguishable from epistemic reasonsreasons for believing a proposition to be true or false. Epistemic and practical reasons are distinguished because they do not overlap. For example, my loyalty to a friend might give me strong practical reasons to hope that he did not steal my car. But it does not give me any epistemic reason to believe he is innocent, and I make a serious mistake if I weigh my loyalty among the reasons to hold particular beliefs. See id. at 420-27.

As T.M. Scanlon writes, To justify an action to others is to offer reasons supporting it and claim that they are sufficient to defeat any objections that others may have. Scanlon, supra note 33, at 197. The reasons that are of interest here are justificatory reasons, not explanatory reasons. An explanatory reason is a reason that explains why, as a matter of historical and psychological fact, a given person did something: He took his third bath of the day because he thinks he has to take a bath every time he sees Larry King on the TV. A justificatory reason is a good reason, a consideration that really counts in favor of the thing in question. Scanlon, supra note 33, at 19. Of course there are many deep philosophical questions about what makes things good reasons, and how we can know what they are. I will not dive into those questions here; I assume that the reader agrees that it is meaningful to ask what reasons people have for their actions or attitudes, and that it is
34

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answer the question, What do we have most reason to do? 35 Political philosophy is the sub-set of ethical philosophy that deals with what we have most reason to do when we act as policymakers. To say we have a reason for doing something is to say that there is more than just a whim or an arbitrary desire pushing us towards doing something; there is a consideration in favor of it that can withstand careful reflection. When the reasons on one side outweigh or override the reasons on the other side, we feel that the choice is justified. In Christine Korsgaards words, [t]he normative word reason refers to a kind of reflective success. 36 The concept of a perspective can be understood more clearly if we describe it in terms of practical reasons. To take a perspective on a situation is to include some reasons in our thinking and to exclude others. For example, to view a choice from a financial perspective is to consider, when we evaluate the reasons for and against each option, the reasons that relate to moneyand not other reasons. To view a choice from an economists perspective is to consider the reasons that economists recognize. Depending on the economist, these reasons will probably include considerations like utility or welfare, and they will probably not include considerations like moral value. To view a choice from a political perspective is to focus on the reasons relating to public discourse, public institutions, and the values associated with them. A choice can also be viewed from the perspectives of different people who are involved with it in different ways. When we say that a choice looks different from different peoples perspectives, we are using the people to represent the specific kinds of reasons with which those people are concerned. The fact that a major sports event will be on television tonight is a matter of indifference from my perspective, because I am not a sports
meaningful to claim that some reasons are better than others. See PHILIPPA FOOT, VIRTUES AND VICES 156 (1978) (I dont understand reasons for action, and I dont think anyone else does.).
35 36

DEREK PARFIT, REASONS AND PERSONS 3 (1984). Korsgaard, supra note 1, at 93.

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fan. From my perspective, considerations that might count as reasons for sports fans to watch the gamelike the fact that two teams with a particularly bitter rivalry will face offdont count as reasons to do, or not do, anything. This article looks at whether there are significant differences between the perspectives on legal ethics that practitioners and policy-makers might take. Translated into the language of practical reasoning, the question becomes whether practitioners and policy-makers are concerned with different groups of practical reasons. To answer that question, it will first be necessary to understand the kinds of claims about practical reasoning that generally appear in legal ethics theory. D. What is the Standard Conception of Legal Ethics a Conception Of? Many theories of legal ethics focus on explaining, justifying or challenging what is called the Standard Conception of legal ethics. 37 On most accounts, the standard conception consists of three related principles. The first is the principle of Partisanship, under which lawyers should be partisans of their clients interests. The second is the principle of Neutrality, under which lawyers should refrain from reaching independent judgments of the justness of clients positions. The third principle is the principle of Nonaccountability, under which lawyers should not be held morally responsible for the goals they pursue on their clients behalf. 38 These principles are controversial. Some writers defend the Standard Conception, while others criticize it, and still others try to improve upon it. Although there is much disagreement

37

See, e.g., Dare, supra note 29, at 2.

38 See William Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 WIS. L. REV. 29, 36 (1978) (referring to principles of partisanship and neutrality); Postema, Moral Responsibility in Professional Ethics, supra note 32, at 73 (partisanship and neutrality); Wendel, supra note 29, at 29-31.

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about the merits of the Standard Conception, it is the place from which many theories of legal ethics begin. 39 It is not always clear what the Standard Conception is supposed to be a conception of. There are at least three things it might be a conception of. First, it might be understood as a conception of lawyering law. On this understanding, the principles of the Standard Conception represent the deep values that are expressed in specific rules and regulations governing lawyers behavior. It is a conception of what lawyering law is really about. Second, we might understand the Standard Conception as a conception of the informal social norms that constitute the role of lawyer. On this understanding, the Standard Conception is a conception of the basic expectations that apply to lawyers in our society. On a deep level, we might claim, behaving in the ways described by the Standard Conception, or aspiring to behave in those ways, is what makes someone a lawyer. A third way of understanding the Standard Conception is as a set of claims about practical reasoning. On this understanding, each of the principles of the Standard Conception is a claim about what sorts of considerations lawyers should recognize as reasons for action. The principle of Partisanship is a claim that lawyers should treat as reasons for action only those considerations that relate to their clients interests. Being a partisan means recognizing your clients interests as reasons for taking a variety of actions, but treating other parties interests as irrelevant to the decisions you face. Similarly, the principle of Neutrality can be understood a claim that lawyers should exclude from their practical reasoning

39 There are other ways to approach legal ethics theory. Scholars like Thomas Shaffer and Anthony Kronman have approached legal ethics by way of lawyers character, asking what traits make lawyers admirable, rather than what norms govern their behavior in role. See THOMAS L. SHAFFER, FAITH AND THE PROFESSIONS (1987); ANTHONY T. KRONMAN, THE LOST LAWYER : FAILING IDEALS OF THE LEGAL PROFESSION (1995).

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their own views about what is moral. 40 In other words, the fact that my client wants to do something that I believe to be wrong or immoral does not give me reason to do, or not do, anything. The principle of Nonaccountability is not a claim about what lawyers should count as reasons; it is a claim about the reasoning of people who evaluate lawyers conduct. The principle of Nonaccountability answers the question whether we should count as a reason for thinking a lawyers choices good or bad the fact that a lawyer pursued a morally bad aim, like the use of technical defenses to avoid a morally binding obligation. The principle of Nonaccountability says that we should not count the clients aims as reasons for judging the lawyer to have acted well or poorly. 41 Although the principle of Nonaccountability is addressed to anyone who evaluates lawyers conduct, that group includes lawyers themselves. Lawyers want to know whether their conduct is morally admirable or blameworthy. The principle of Nonaccountability tells them to exclude from their deliberations any concerns they may have about their responsibility for the clients aims. 42 Notice that the Standard Conception itself is not a set of claims about what reasons lawyers have for following the principles of Partisanship, Neutrality and Nonaccountability. In other words, the Standard Conception tells lawyers what considerations to recognize as reasons. But it does not offer

40 Partisanship and neutrality are conceptually distinct, but they can also be represented as a single principle of professionalism. See David Luban, The Adversary System Excuse, in THE GOOD LAWYER, supra note 4, at 84, 90.

Markovitss account of the Standard Conception interestingly reformulates the principle of nonaccountability as a principle of reduced legal liability for negligence in the pursuit of a clients goals. Markovits, supra note 22, at 31-34.
41 42 It may seem from this description that the principle of Nonaccountability is a claim about reasons for belief, rather than reasons for action, because it relates to reasons for believing that a given action was morally justified. But this would be the wrong conclusion. Every piece of practical or moral reasoning involves beliefs about what to do. Our beliefs about what to believeour epistemic beliefsare importantly different from our beliefs about what should be done. See Parfit, supra note 33, at 420-27.

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second-order reasons for recognizing those considerations as reasons. That is where legal ethics theorists come in. It is easy to see why it might be necessary to call in specialists to identify the reasons for following the Standard Conception in ones own practice. It is not usually admirable to pursue aims one believes are bad, to suspend ones moral concerns about the actions in which one is engaged, or to deny moral responsibility for the aims one pursues. The Standard Conception claims that lawyers have good reasons to act in these ways. The challenge for legal ethicists is to determine whether those reasons exist, and, if so, to show why they outweigh or override whatever reasons lawyers have not to act in these ways. Legal ethicists often begin their investigations by describing this challenge in a way that creates more confusion than clarity. They sometimes fail to describe the problem clearly, I will argue in the next section, because they do not describe it in terms of practical reasoning. E. Two Minor Puzzles, Solved In this section I will identify two ways in which certain kinds of confusion about legal ethics can be avoided when we understand legal ethics theory as a set of claims about practical reasoning. This argument is not directly relevant to my main claim about the importance of the practitioners and policymakers perspectives. But it will help illustrate the importance of understanding legal ethics through the lens of practical reasoning. And it will provide useful background for the arguments that come laterwhich relate to certain mistakes made in some theories of legal ethicsbecause it will explain how conventional theories of legal ethics are generally organized. The first kind of confusion that we can avoid by describing legal ethics in terms of practical reasoning relates to the way in which legal ethicists identify the challenge facing them. Many legal ethicists begin their theory with claims about what they call ordinary morality. Specifically, they often assert the practice of lawyering under the Standard Conception runs

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afoul of ordinary morality. 43 As Tim Dare observes, [A]lmost all treatments of legal ethics begin[] by noting the perception that lawyers are grasping, callous, self-serving, devious and indifferent to truth and the public good.44 Lawyers roles, legal ethicists often claim, require them to act in ways which might properly be condemned from the perspective of ordinary morality. 45 The claim that lawyers roles are immoral from the perspective of ordinary morality sounds depressingly final. It seems to imply that if lawyers morality is to be justified, it must be treated as something so fundamentally different that the two moralities should be thought of as separate systems altogether. 46 Conventional theories make this implication clear when they focus, as many do, on the question of whether lawyerly morality is differentiated from ordinary morality. 47 The mistake here is to assume that the only way to justify lawyers actions is to separate lawyers morality, understood as a system, from ordinary morality, understood as a system. 48 The
See, e.g., Dare, supra note 29, at 3 (According to this critique . . . lawyers acting under the standard conception are alienated from ordinary morality). For a somewhat different take on this problem, see Rosalind Hursthouse, Two Ways of Doing the Right Thing, in VIRTUE JURISPRUDENCE 236, 236-237 (Farrelly & Solum ed. 2008).
43 44 45

Dare, supra note 29, at 148. Id.

46 For example, Wendels book opens with the assertion that popular criticism of lawyers is based on a tacit assumption: that lawyers ethics is a branch of ordinary, common, everyday moralityethics for people as people, not as occupants of defined social roles. Wendel, supra note 29, at 1. Of course, popular critics could only be making such an assumption if there really is a meaningful distinction between ordinary morality and lawyers ethics.

OF PROFESSIONAL ETHICS

On role-differentiation, see ALAN H. GOLDMAN, THE MORAL FOUNDATIONS 2-3 (1980). Tim Dare devotes a chapter of his book to analyzing the ways in which a roles morality may be differentiated from ordinary morality. Dare, supra note 29, at 29-58.
47

48 William Simon rightly criticizes various accounts of legal ethics for exaggerat[ing] the necessary distance between ordinary morality and legal ethics. William H. Simon, Role Differentiation and Lawyers Ethics: A Critique of Some Academic Perspectives, 23 GEO. J. LEGAL ETHICS 987, 988 (2010).

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idea of differentiation from ordinary morality suggests that the only way to accept lawyers actions is to reject the whole system of ordinary morality. But this implication is a dangerous one. It is not a good idea to suggest to lawyers that the only way for them to accept the obligations of their role is by some Nietzschean overthrow of an entire moral system. We should not encourage lawyers to declare independence from the moral thinking they grew up with. Fortunately, it is not true that our only hope for justifying lawyers conduct is to treat ordinary morality and role morality as separate systems. The language of practical reasoning gives us a more careful way to describe the challenge facing legal ethics theorists. When Dare and other writers talk about lawyers conduct being condemnable from the perspective of ordinary morality, 49 we should remember that a perspective is a cluster of reasons. To say that lawyers actions are condemnable from the perspective of ordinary morality is to say simply that there are ordinary moral reasons not to do what lawyers do. This is a more reasonable claim. Rather than saying that advocacy violates ordinary morality, and that lawyers morality must be differentiated from ordinary morality if their actions are to be justified, we should say that there are ordinary moral reasons not to pursue aims we think are bad, or to suspend our moral concerns about the actions we perform, or to deny our responsibilities for the aims we pursue. We do not need to invoke any particular theory of morality to acknowledge that there are certain moral reasons that apply uncontroversially to everyone. All of us ordinarily have reason to pursue only aims that we think are morally good, and to exercise independent moral judgment about the aims we pursue. Thus, there are ordinary moral reasons to reject the principles of Partisanship and Neutrality. And everyone has an ordinary moral reason to take responsibility for our actions. So we have ordinary moral reasons to reject the principle of Nonaccountability. These reasons, then, count against following the Standard Conception. But they do not imply that we must
49

Id.

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renounce ordinary morality altogether if we are to accept the Standard Conception. They merely imply that we must find countervailing reasons. The mere fact that there are ordinary moral reasons not to follow the Standard Conception hardly establishes that lawyers who follow it operate under a separate moral system. 50 If we frame the question in terms of practical reasoning, we can express the problem that motivates legal ethicists without implying that lawyers must secede from ordinary morality if they wish to consider their conduct admirable. Instead, we can say, simply and accurately, there are ordinary moral reasons not to follow the Standard Conception. This claim is more than enough to get a theory of legal ethics started. A second kind of confusion that can be avoided by understanding legal ethics theories as theories of practical reasoning relates to the structure of those theories. Many theories of legal ethics take the metaphorical structure of a legal proceeding. As discussed above, many theories begin with a claim that lawyers violate ordinary morality. 51 Writers who take this approach treat the purported violation of ordinary morality as a sort of prima facie claim against lawyers, with ordinary morality playing the role of the governing legal regime. This prima facie claim of a violation of ordinarily morality, they say, shifts the burden of persuasion to the defensethat is, to lawyers or those who wish to defend their conduct. 52 The theorist then examines the possible defenses, excuses, and immunities that
50 As noted in Mike W. Martin, Rights and the Meta-Ethics of Professional Morality, 91 ETHICS 619, 620 (1981). See also Benjamin Freedman, A MetaEthics for Professional Morality, 89 ETHICS 1 (1978); Benjamin Freedman, What Really Makes Professional Morality Different: Response to Martin, 91 ETHICS 626 (1981); Mike W. Martin, Professional and Ordinary Morality: A Reply to Freedman, 91 ETHICS 631 (1981).

See, e.g., ARTHUR APPLBAUM, ETHICS FOR ADVERSARIES: THE MORALITY OF ROLES IN PUBLIC AND PROFESSIONAL LIFE 3, 42, 45 (1999). Cf. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
51 52 See, e.g., Wasserstrom, supra note 28, at 34. Applbaum similarly asks whether lawyers are liars, concluding that they are at least serial deceivers, andusing burden-shifting languagethat deception is presumptively wrong. Applbaum, supra note 51, at 76, 104.

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might apply to lawyers conduct. 53 (Burden-shifting language was used in moral philosophy long before legal ethicists took it up, but it is perhaps not surprising that lawyers find it comfortable. 54 ) It may seem strange to find a burden-shifting paradigm in the context of ethics. In legal procedure, burden-shifting is a procedural device used to determine which of two adversaries should lose if there is no evidence on a question or if the answer is too hard to find. 55 As Judge Posner writes, the function of this kind of device is to allow a court to reach a definitive result in a case where it may not have the faintest idea whether the defendant wronged the plaintiff, and if so how seriously. 56 A device of this kind has no obvious relevance to practical ethical decisions, where there are no adversaries and the goal is to identify the right thing to do, not decide what to do if we cannot identify the correct answer.

The most well-known defense argument is what David Luban dubbed the Adversary System Excuse, under which the lawyers bad acts are claimed to be permissible because of their contribution to the system in which she practices. See Luban, supra note 39. Other defense arguments seek to rebut the prima facie case, contending that what might seem to be a violation of ordinary morality is not a violation after all. This strategy is known as rolebased redescription. See Applbaum, supra note 51, at 76-109 (1999). Still other arguments for the defense are in the nature of a claim of immunity or a lack of jurisdiction: a claim that the regime of ordinary morality does not apply to the moral territory on which lawyers practice. As Murray Schwartz observes, this kind of argument is a demurrer, not an answer, to moral criticism. Schwartz, supra note 4, at 150, 151.
53 54 Burden-shifting has been used in philosophy since at least 1702, when Leibniz argued for a presumption in favor of the existence of God that would shift the burden of proof to disbelievers. See RICHARD H. GASKINS, BURDENS OF PROOF IN MODERN DISCOURSE 1 (1992). A more recent example is Judith Andre, Role Morality as a Complex Instance of Ordinary Morality, 28 AM. PHIL. QUART. 73 (1991). 55

WARD FARNSWORTH, THE LEGAL ANALYST 250 (2007).

56 RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 215-216 (1990). Posner is talking about burdens of proof, but the same is true of presumptions and burden-shifting devices. For a discussion of the difference between these and other procedural devices, see FREDERICK SCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION TO LEGAL REASONING 219-229 (2009).

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If we understand the burden-shifting metaphor in terms of practical reasoning, it becomes easier to understand. Burdenshifting is an apt metaphor for the way reasons work. Reasons retain their force until something cancels or defeats them. 57 If you are facing a decision, and there is only one reason to do anything, you should do what that reason is a reason for.58 If there is a reason that counts against doing a thing, you should not do that thing unless there are reasons that count in the other direction. So if the burden shifts to lawyers to defend their conduct, it is just because there is an ordinary moral reason not to do what they do. The question, then, is how the burden, once shifted, can be methow an ethical reason can be defeated or cancelled. Rather than saying that the burden shifts to lawyers to justify their actions, we should say simply that there are ordinary moral reasons not to follow the Standard Conception, and that therefore we should not follow it unless other reasons outweigh or override those reasons. II. THE GAP BETWEEN AGGREGATE CONSEQUENCES AND LAWYERS REASONS The last section argued that we should understand the perspectives of the practitioner and the policy-maker in terms of the practical reasons that each of them consider in their decisionmaking. This section argues that those reasons are different in an important way. Legal ethicists often argue that desirable consequences will follow if lawyers in general act in a particular way. When such claims are true, they are necessarily important reasons for policy-makers to consider in their decision-making. But they are not necessarily important reasons for practitioners.

57

JOSEPH RAZ, PRACTICAL REASON AND NORMS 25 (2d ed. 1990).

58 See JOSEPH RAZ, THE PRACTICE OF VALUE 144 (2003) (possession of a value property . . . constitutes a presumptively sufficient reason for action).

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AYERS A. Aggregate Consequences

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Many arguments in legal ethics theory deal with social goods that would be promoted or protected if lawyers in the aggregate acted in a certain way. These arguments claim that certain goods will be promoted or protected if lawyers generally behave in a certain way: our legal system will perform better, or our democracy will better preserve its legitimacy, or our society will do a better job of protecting legal rights. These are claims about the consequences of certain kinds of lawyerly behavior. For example, in one of the earliest works on legal ethics, George Sharswood wrote that the way to decide whether the use of contingent fees was morally acceptable was to look at what would be the results of such a practice, if it became general. 59 It is one of that class of actions, he wrote, which in particular instances may be indifferent, but their morality is to be tested by considering what would be the consequences of their general prevalence. 60 In other words, Sharswood claimed that lawyers should decide whether to charge contingent fees by asking what consequences would follow if lawyers in the aggregate charged contingent fees. 61 Making claims about consequences does not commit one to a consequentialist moral philosophy. As Bernard Williams notes, no sane person denies that consequences are relevant to ethical decision-making. 62 The word consequence refers to any state of affairs that is brought about as a result of a decision or a set of
GEORGE SHARSWOOD, AN ESSAY ON PROFESSIONAL ETHICS 26 (Valde Books ed. 2009).
59 60 61

Id.

Sharswood argued that contingent fees would corrupt the character of the profession by making lawyers too interested in their clients claims; a lawyer whose fee was contingent on success would be unable to see that the facts in a particular case were strongly against his clients position and that it was his duty to retire from it. Id.
62 To engage in moral thinking without considering the consequences of an action would be merely insane, if intelligible at all. Bernard Williams, A Critique of Utilitarianism, in Smart and Williams, UTILITARIANISM: FOR AND AGAINST 133 (1973).

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decisions. Legal ethicists sometimes seem to imply that consideration of consequences implies a denial that some actions are intrinsically wrong or that integrity is intrinsically valuable. 63 That is a mistake. Consideration of the consequences of our actions does not entail a belief that the ends justify the means. Everyone has reason to ask what will be the outcome however broadly we understand outcomeof the choices that we make. No matter what moral theory we adopt, this question is of great interest. Even if one does accept a consequentialist moral theory, that acceptance does not imply a belief that the ends justify the means, or a rejection of the idea that some kinds of actions are intrinsically wrong. Evaluation of consequences can include evaluation of any aspect of a state of affairs. One way that a state of affairs can be intrinsically good is if the people involved in it experience more pleasure and less pain. If you are a utilitarian, you believe this is the aspect of a state of affairs that matters most. 64 But consequentialists can also recognize other aspects of states of affairs as intrinsically good. For example, some consequentialists believe that a state of affairs is good insofar as goods are distributed fairly among the people involved in it. 65 Other consequentialists claim that a state of affairs is intrinsically good when the people involved in it are not engaged in intrinsically wrong actions like lying. 66 So consequentialists
Daniel Markovits writes, for example, that a consequentialist cannot recognize the importance of an agents integrity. He thinks that the agent may legitimately wish, for example, not to murder one of twenty hostages to save the rest of the group from being killed. Markovits, supra note 22, at 130. But consequentialists can recognize that an agents integrity has value to her, just as they can recognize that an agents children have special value to her. What the consequentialist cannot accept is a claim that the agents integrity has more value than another agents integrity. Consequentialists are generally committed to impartiality. See BRAD HOOKER, IDEAL CODE, REAL WORLD 110 (2002). But impartiality does not imply denying that agents special relationships to their own actions give rise to special kinds of value, including the value of integrity.
63 64 65

J.S. Mill, UTILITARIANISM 7 (1861, repr. 2005).

This is called prioritarian consequentialism. See Hooker, supra note 63, at 45.
66

See Parfit, supra note 33, at 373-74.

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are perfectly capable of recognizing the value of intrinsically good actions, or values that arise out of special relationships like the relationship between a parent and a child. A consequentialist can also recognize that an agents integrity has value to her. What consequentialists usually deny is that an agents integrity has more value than another agents integrity. 67 That, however, is a large question that is well beyond the scope of this article. The question I want to consider here is how consequences are analyzed in legal ethics. The type of consequences on which this article will focus are aggregate consequences, by which I mean consequences that flow from an aggregated group of decisions, rather than any single decision viewed in isolation. Aggregate consequences feature prominently in legal ethics theory. 68 Writers often claim that certain kinds of lawyerly actions or dispositions will have the consequence of promoting or protecting collective goods. 69 Many theorists begin with a claim that law helps society resolve or avoid moral conflicts, and that it therefore helps promote cooperation and peaceful coexistence in a society where there are many different moral beliefs. Bradley Wendel, for example, argues that law is a collective good or a collective achievement that helps society achieve a number of important goals. 70 Drawing on the work of political philosophers, Wendel argues that law allows societies to to supersede uncertainty and disagreement and provide a resolution of
What makes a moral theory consequentialist, on most accounts, is that it considers consequences important without regard to who brings them about. A consequentialist could claim that I should tell a lie if it will prevent three other lies, or commit murder if it prevents three other murders, because what matters is the state of affairs, not my relationship to it. A non-consequentialist could claim that I should prefer a state of affairs in which I tell no lies and you tell three lies to a state of affairs in which I tell one lie and you tell none. The difference is that non-consequentialists see the agents personal relationship to the state of affairs as significant, while the consequentialist asks the agent to view the situation impartially.
67 68 David Luban observes that one need not be a consequentialist to accept the importance of aggregate consequences. Luban, supra note 62, at 439.

For a definition of collective goods, see RUSSELL HARDIN, COLLECTIVE ACTION 19 (1982).
69 70

Wendel, supra note 29, at 4.

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competing claims of right, so that citizens can coexist and work together on mutually beneficial projects. 71 Law serves a crucial coordination function; it allows citizens to solve social problems collectively without coming to agreement on their visions of the good. 72 Citizens need not debate which side of the road we should drive on because they can agree that the law has settled that question for all practical purposes. Once Wendel has identified the collective goods that law promotes, the question becomes how lawyers can best help it promote those goods. His theory of legal ethics is an attempt to answer that question. Other legal ethicists begin from similar accounts of laws role in society. Tim Dare, like Wendel, emphasizes laws function as a mediator between different views in a pluralistic society. He argues that the fundamental function of law in Western democracies is to mediate between reasonable but inconsistent views of what we should do as a community. 73 Daniel Markovits also bases his theory on laws role in facilitating the resolution of social conflict, emphasizing the way in which the adversary system can help people accept whatever resolution of their disagreements the legal system offers. 74 Alan Goldman similarly claims that that the stability of the legal system depends upon the willingness of citizens to settle their disputes within it. 75 Each of these writers goes on to explain how lawyers actions and dispositions can promote and protect the collective goods associated with living under law. Critics of the Standard Conception also make claims about the consequences of lawyers actions. David Luban argues in Lawyers and Justice that laws are worthy of respect if they are generally beneficial, and that lawyers play a particularly
Id. at 54. Wendel does not claim that this is laws only function.

71 72

Id. at 88. Interestingly, this is precisely what Thomas Shaffer dislikes about law. See THOMAS SHAFFER, ON BEING A CHRISTIAN AND A LAWYER 186 (1981).
73 74

Dare, supra note 29, at 74. Markovits, supra note 22, at 174-85.

75 Goldman, supra note 47, at 153. Goldman rejects the idea that this collective interest counsels in favor of zealous partisan advocacy. Id.

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important role in determining whether a societys laws satisfy the requirement of generality. 76 The requirement of generality is a requirement that law must transcend the particular case, that similar cases should be treated similarly. 77 Luban claims that certain kinds of lawyering amount to attacks on laws generality. A lawyer effectively attacks laws generality when she creates or exploits loopholes in tax law that are, as a practical matter, available only to the wealthy and well-counseled. This kind of instrumentalist lawyer, Luban writes, tries to ensure that his or her client need not play by the same rules as the rest of us. 78 Lubans concern about lawyers impact on the generality of law is a concern about lawyers impact on the structure of society as a whole. He writes that [t]he existence of a regime of instrumentalist lawyers threatens to undermine the generality of law and thus to abrogate the moral authority of law. 79 Luban warns, Undermine generality and you undermine the very legitimacy of law, reducing it once again to coercion.80 Luban seems to intend the you in this sentence as a plural you, rather than a singular one. 81 His claim is that lawyers generally risk reducing law to coercion when they take an instrumentalist approach, not that a single lawyers exploitation of a tax loophole undermines the legitimacy of law. (That would be a more complicated claim to support.) Sometimes it is possible to interpret a claim as relating either to aggregate consequences or to individual choices. Consider, for example, Richard Wasserstroms warning about the
76 77 78 79 80

DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 43-49 (1988). Id. at 44. Id. at 49. Id. Id.

81 In Lubans argument, the same generality that lawyers are urged to defend is what gives lawyers their obligation to respect the law in the first place. Lawyers have an obligation to respect the law because it is general; and lawyers have an obligation not to undermine laws generality because doing so will undermine peoples reasons to respect it. Id. at 43-47. Lubans argument serves as an illustration of what Lon Fuller called the cooperative nature of the task of maintaining legality. Fuller, supra note 17, at 91.

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danger that certain kinds of decisions by lawyers will lead to an oligarchy of lawyers. Wasserstrom imagines a lawyer who disagrees with a clients decision to disinherit a child because of the childs opposition to the war in Vietnam. 82 The lawyer is tempted not to facilitate the disinheritance. But for the lawyer to substitute her own private views of what ought to be legally permissible and impermissible for those of the legislature, Wasserstrom argues, would constitute a surreptitious and undesirable shift from a democracy to an oligarchy of lawyers. 83 The term oligarchy obviously refers to a kind of government, and so it is probably best to interpret Wasserstroms argument as a collective one. The avoidance of a lawyers oligarchy is, on this interpretation, a desirable aggregate consequence of lawyers actions. If lawyers in general vetoed client requests on moral grounds, the argument goes, lawyers would impose an additional layer of government between the real government and the client. 84 In Alan Goldmans words, the concern is that we as a society will substitute a government of lawyers for a government of law.85
82

Wasserstrom, supra note 28, at 10.

83 Id. at 11. The claim that morally activist lawyers substitute their judgment for the legislatures is questionable; we have no reason to think that Korsgaards lawyer disagrees with the legislature. She might well agree passionately that the law should leave people in general free to dispose of their estate as they wish. But she could also believe that in this situation, she has good reason to suppress it.

David Luban observes that lawyers lack a hidden Central Committee, so there is no real danger of an actual oligarchy of lawyers. Luban, The Lysistratian Prerogative: A Response to Stephen Pepper, 11 AM. BAR FOUND. RES. J. 637, 641 (1986). Rather, the concern should be understood as metaphorical: Wasserstroms claim is that lawyers will become like an oligarchy. The arguments later offered by Dare and Wendel make can be understood as responses to Lubans claim in The Lysistratian Prerogative that there is simply nothing wrong with lawyers acting as informal filters of peoples legally permissible projects, id., given how deeply our society depends on informal moral filters for the success of legal institutionsand, for that matter, every institution. We are all oligarchs to each other, and we would not be much of a civilization if we were not. One of the central questions for legal ethics theory is whether there is any principled way to determine when this sort of private oligarchishness is justified.
84 85

Goldman, supra note 47, at 129.

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It is also possible, however, to interpret Wasserstroms claim as a claim about individual circumstances. Understood this way, it would go something like this: A lawyer who exercises the moral trump is, in that particular situation, acting like an oligarch. The lawyer diminishes a specific individuals autonomy, rather than diminishing the collective good of society-wide respect for autonomy. Tim Dare appears to make both versions of the oligarchyof-lawyers claim, First, Dare says that lawyers who calibrate their efforts according to their own view of the good privilege their view and disenfranchise the view of the client. This is the individual version of the claim. 86 Second, Dare says that such lawyers undercut the strategy by which we (meaning our society) secure community between people with divergent views.87 This is the aggregate version of the claim. B. Indirect Strategies The promotion of good consequences, whether they are aggregate or individual, sometimes requires indirect strategies. It is often true that when we seek to promote a good consequence we are more likely to succeed if we do not directly aim at it. When Hamlet says, I must be cruel only to be kind, 88 he means that he must cruelly tell his mother the truththat her husband is a murdererto allow her to redeem herself.89 Being kind at
David Luban makes an argument related to this one when he claims that paternalistic lawyers infringe their clients dignity by riding roughshod over their clients deep commitments. DAVID LUBAN, Lawyers as Upholders of Human Dignity (When They Arent Busy Assaulting It), in LEGAL ETHICS AND HUMAN DIGNITY 65, 76 (2007).
86 87 88

Dare, supra note 29, at 74.

Hamlet III.iv.178. Hamlet is also echoing the pun on kind that appeared in the first line he speaks in the play, A little more than kin, and less than kind. Hamlet I.ii.65. In this sense, Hamletwho has accidentally killed the innocent, if annoying, Poloniusmay also mean that he has to be cruel in general in order to be a good son to his father, because a good son would go cruelly about the business of avenging his fathers death. As A.C. Bradley writes, Her only chance was to be made unhappy. A.C. Bradley, SHAKESPEAREAN TRAGEGY 137 (1904, repr. 1962).
89

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this moment would mean keeping silent, but that would not be kind in the long run. As a society, we adopt an indirect approach to the promulgation of good ideas when we embrace the marketplace-ofideas justification of free speech. 90 Thus, Oliver Wendell Holmes argued that the ultimate good desired is better reached by free trade in ideas than by censorship, because the best test of truth is the power of the thought to get itself accepted in the competition of the market. 91 He sought to promote the goal of reducing the number of bad ideas in circulation by allowing bad ideas to circulate freely. Claims about indirect strategies are very common in legal ethics. 92 Many writers claim, like Stephen Lubet, that lawyers provide a widespread social benefit by single-mindedly representing individual interests. 93 In other words, lawyers collectively promote good consequences by aiming at things other than those consequences. As Arthur Applbaum observes, when we adopt an indirect strategy for the promotion of good social consequences, it is important to specify the mechanism by which we think those consequences will indirectly come about. 94 In the case of free speech, the mechanism is the testing of ideas by their ability to achieve widespread acceptance in society. In the case of legal ethics, a related mechanism is sometimes thought to operate. The adversary system is an obvious example of an indirect strategy for promoting good consequences that figures
90 91

See John Stuart Mill, ON LIBERTY, ch. II.

Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
92 See David Wasserman, Should a Good Lawyer Do the Right Thing? David Luban on the Morality of Adversary Representation, 49 MD. L. REV. 392, 401 n.49 (1990).

STEPHEN LUBET, THE IMPORTANCE OF BEING HONEST: HOW LYING, SECRECY AND HYPOCRISY COLLIDE WITH TRUTH IN LAW 5 (2008).
93 94 Applbaum, supra note 51, at 170-180. Applbaum claims that when an indirect strategy involves harm to others, we should treat it as presumptively wrong. Id. at 177-79.

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prominently in legal ethics. On many accounts, the adversary system is supposed to produce accurate verdictsa good consequenceby allowing litigants to aim at their preferred outcome rather than the outcome that is impersonally or objectively best. 95 The lawyers are not supposed to aim at the truth; they are supposed to aim at presenting the best version of the case for their clients position. They help the court reach the best conclusion not by trying to help the court reach the best conclusion but by ensuring that the best available arguments for both sides are made to the court. They aim at one thing to accomplish another. Adversary advocacy, on this account, is an indirect way of promoting the desirable consequence of accurate verdicts. Indirect strategies for promoting collective goods can lead to arguments that take a strange shape. Legal ethicists sometimes argue that lawyers should do something because of a collective good even when that collective good is plainly not at issue in the specific situation. 96 An example is the recent controversy over the law firm King & Spaldings disavowal of its representation of the House of Representatives in a high-profile case involving the federal Defense of Marriage Act (DOMA). 97 In February 2011, the United States Department of Justice announced that it would not defend the constitutionality of section 3 of DOMA, which prevents the federal government from recognizing the validity of same-sex marriages. 98 In response, the House of Representatives hired

95

See Luban, supra note 76, at 69-73.

96 William Simon argues that lawyers end up demoralized because of such indirect strategies. He argues that the connection between the practical tasks of lawyering and the just outcomes that are supposedly brought about by those tasks is so attenuated that it requires a deferral of ethical gratification that is painful for practitioners. Simon, supra note 6, at 2. The problem as Simon sees it is that lawyers are forbidden from pursuing the valuejustice that provides the justification of their role. Id. at 1-2.

Pub.L. 104-199, 110 Stat. 2419 (1996), codified at 1 U.S.C. 7 and 28 U.S.C. 1738C.
97 98 Mark Ambinder, Obama Won't Go to Court Over Defense of Marriage Act, NATL. J., Feb. 23, 2011.

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Paul Clement, then a partner at King & Spalding, to defend it. 99 Some gay-rights advocates condemned the firm for defending DOMA. The president of the Human Rights Campaign said the firm was aiding and abetting an effort to score cheap political points on the backs of same-sex couples.100 Not long afterwards, King & Spalding disavowed the decision to defend DOMA, saying the firms vetting process had been inadequate. 101 In response, Clement resigned from the firm, writing that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.102 Both the popular debate and the scholarly debate about these events focused on what consequences might flow from them. All parties to the debate assumed that DOMA was an unjust law, and so this article will proceed on that assumption as well. Readers who do not share that view are asked to substitute a law they view as suitably odious. An editorial in the L.A. Times invoked the aggregate consequences of adversary advocacy, saying that Clements critics misunderstand[] the adversarial process. 103 The editorial argued that with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. 104 Invoking a different kind of consequence, it also argued that a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. 105

Aaron Couch, DOMA: Republicans lose big-money law firm but keep key lawyer, CHRISTIAN SCIENCE MONITOR, Apr. 25, 2011.
99 100 101

Quoted in Defending a bad law, editorial, L.A. TIMES, Apr. 21, 2011. Couch, supra note 99.

102 Deborah Rhode, King & Spalding Was Right to Withdraw, Natl L. J. (May 3, 2011). Letter on file with author. 103 104 105

Defending a bad law, supra note 100. Id.

Id. The editorial specifically tied its argument about public acceptance of judicial outcomes to the specific case at issue, arguing that [i]f DOMA is

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A debate among legal ethicists focused on a different kind of consequence. Stephen Gillers argued that King & Spaldings timidity here will hurt weak clients, poor clients, and despised clients. 106 Deborah Rhode, arguing that it was fair to criticize Clement for agreeing to represent DOMA, 107 pointed out that the Republican leadership [of the House] is scarcely weak or poor and was hardly prejudiced by this decision. 108 The argument between Gillers and Rhode concerns the indirect consequences of the firms behavior. Rhode is of course correct that the Republican leadership of the House of Representatives is neither weak nor poor. But presumably that was not Gillerss point. Gillers was invoking aggregate consequences, not the specific consequences of Clements choice. It is better for all of us, the argument goes, to live in a society in which unpopular clients are able to find representation, and unpopular positions receive their day in court. In order to promote this state of affairs, it is necessary for lawyers to adopt an indirect strategy. Lawyers must represent even those views they are sure are unjust. The argument is, in short, that it was good for Clement to defend DOMA because society is better off when lawyers in the aggregate do what Clement did. The pro-Clement position makes sense only as an argument about the indirect promotion of aggregate consequences, rather than their direct promotion. The specific collective good at issuethe ability of unpopular views to find legal representationwas never at stake in Clements individual choice. Clement did not save the House from going unrepresented; he saved it from having to make another phone call or two. The chances of the House failing to find counsel to defend DOMA were precisely zero. And the House of Representatives is not, in any meaningful sense, unpopular. It is
struck down, the fact that it was defended effectively will make the victory for its opponents more credible. Id.
106 Quoted in Michael D. Shear and John Schwartz, Law Firm Wont Defend Marriage Act, N.Y. TIMES, Apr. 25, 2011. 107 108

Rhode, supra note 102. Id.

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impossible to gain control of the House without achieving at least a substantial level of popular support. 109 Clements defense of DOMA cannot be defended with an argument that it directly ensures that unpopular views are represented. Rather, Clements defenders will have to argue that Clements choice was part of an indirect strategy of promoting that collective good. It is better that Clement not try to reject unjust clients, the argument would go, because there will be bad consequences for our society if lawyers generally rejected clients they thought were unjust. This argument has the right shape. But there is a hole in the middle of it. C. The Gap Many legal ethicists claim that lawyers can bring about desirable aggregate consequences through various indirect strategies. It is obviously appropriate to address claims of this kind to a policy-maker. Anyone drafting rules that are to govern lawyers behavior, for example, is necessarily interested in the aggregate consequences of lawyers choices. But complications arise when we address claims about aggregate consequences to individual practitioners. Part I.C of this article argued that the practitioners perspective is best understood in terms of practical reasons. Claims about what individual lawyers should do are claims about what lawyers have most reason to do. The challenge for legal ethicists is to help lawyers identify which considerations should count as reasons for them to choose or not choose a particular action. A claim about aggregate consequences, when addressed to an individual practitioner, is a claim that the aggregate consequences of a particular choice give the practitioner reasons to choose or reject one of the available alternatives.

109 True, members of the House need maintain only the support of a plurality of voters in gerrymandered districtsbut this is still a kind of popularity.

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As David Wilkins explains, it is important not to confuse the perspective of the system-designerthe policy-makerand the practitioner when we talk about consequences. 110 If lawyers in the aggregate begin to reject certain kinds of fundamental norms, the system will likely collapse. 111 That is the policy-makers concern. But for an individual lawyer, a single act of nullificationthat is, an act which does not follow the norms that apply to lawyers generallyposes no such threat. 112 For example, Gillerss claim about the King & Spalding affairunderstood from the lawyers perspectiveis that (1) lawyers willingness to defend unjust laws helps ensure representation of the poor and the weak; and (2) this fact gives King & Spalding a reason not to withdraw from defending DOMA. There is a gap in this claim. It might be thought that the problem with Gillerss argument is that the House of Representatives is neither poor nor weak. But there is nothing inherently implausible about indirect strategies for pursuing collective goods. We might agree with Arthur Applbaum that anyone advocating an indirect strategy which harms people should be careful to specify just how their strategy works. 113 Someone who defends an unjust law in the name of justice can reasonably be asked to identify the mechanism on which their strategy depends. But there is nothing wrong with the form of the argument.

David Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 468, 508509 (1990).
110 111 Id. at 513. Wilkins is specifically discussing William Simons claim that lawyers should try to promote just outcomes in specific cases. It is not clear whether Simon believes that lawyers should ignore aggregate consequences. On one hand, Simon claims that the lawyer should take such actions as, considering the relevant circumstances of the particular case, seem likely to promote justice. Simon, supra note 6, at 9 (emphasis added). But it may be plausible to interpret the relevant circumstances of the particular case as including the aggregate consequences of the kind of decision at issue. 112 113

Wilkins, supra note 110, at 511-13. Id.

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The problem, rather, is that the argument from aggregate consequences to lawyers practical reasoning commits what is sometimes called the fallacy of division. 114 It assumes that if lawyers as a group should do X, it must be true that any individual lawyer should do X. But that is not necessarily so. There are many cases in which it is true that a group of people should do something, but false that an individual member of the group should do that thing. For example, it might be true that law firm partners in general should not overwork their associates. But if excessive work is the only route to promotion at my law firm, and if my associates value promotion more than free time, then I do the wrong thing if I limit my associates to a 40hour weekeven if that is what law firm partners in general should do. The problem can be understood in terms of thresholds. In many situations, there would be wonderful consequences if everybody acted in a certain way, but an individual agent can be certain that virtually nobody will act in that way. The collective good is a pipe dream, and pursuing it would only waste time and other resources, because we are nowhere near. A certain number of people would have to pursue the collective good before it could be realized, and we are currently nowhere near that threshold. In other cases, the problem arises not because the collective good is a pipe dream, but because it is too well-established to be threatened. There is a threshold below which the collective good will not be provided, but we are nowhere near that threshold. In the case of Clement and DOMA, it is possible to argue both that it is too early for Gillerss concern, and that it is too late. We might argue that it is too early because we are a long way from a situation where clients like the House of Representatives is unable to find representation. On the other hand, we might argue that it is too late for Gillerss concern because the poor and the weak are already unable to find adequate representation in our society. Either argument involves
114 The fallacy of division involves a belief that when a composite whole has a particular property, its parts must therefore have the same property. John Woods and Douglas Walton, Composition and Division, 36 STUDIA LOGICA 381, 385 (1977).

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a claim that we are nowhere near any threshold at which a choice like King & Spaldings withdrawal could tip the balance and undermine the collective good of availability of representation. If we are not near any such threshold, then Gillerss argument requires some further premise to be persuasive. It is not enough to say that an individual lawyer should act in a certain way because similar actions, in the aggregate, will affect a collective good. Individuals lawyers do not have the power to choose how lawyers in the aggregate will act. They choose only how they act. It is often true that the system can tolerate a certain level of behavior that is contrary even to its most important norms. Even if it is true that society in general needs lawyers to withhold judgment on the justice of their clients cases, there is presumably some number of lawyers who can abstain from representing unjust causes before unjust and unpopular clients begin to have difficulty finding a lawyer. Of course it is true that social institutions like promising or adversary advocacy will break down when they are sufficiently abused. But as Williams writes, from the perspective of any given agent, it is never clear where the point of breakdown is supposed to be reached. 115 Without knowing whether we are close to the point of breakdown, I cannot know whether my actions will affect the collective good. So it is false to claim that if a certain condition is in general necessary for the preservation of some collective good, then every agent all the time has reason to accept the norm of acting in accordance with that condition. 116 Williams, discussing the importance of sincerity and trustworthiness, notes that those virtues serve important instrumental purposes, in that all human social relationships depend on some level of sincerity and trust. 117 But that does not mean that any individual agent has reason to be trustworthy because of the danger that acts of untrustworthiness will undermine the social networks on which our society depends. People tell lies every day, and society does not collapse, and there
115 116 117

Id. at 86. Id. at 225. Williams, supra note 119, at 88.

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is no reason to think that my joining the liars side will make any noticeable difference. 118 In Williamss words, it is a mistake to accept the fantasy that rules against lying and promise-breaking are sustained by the consideration that any particular lie or breaking of a promise tends to damage the institutions of assertion and promising. 119 The philosopher Christine Korsgaard uses a trust and estates lawyer as an example of someone who is tempted to do something that she knows would have bad consequences if it became a general practice. Korsgaards lawyer discovers that a recently deceased client has left two wills. The earlier will left his money to medical research. But the lawyer discovers a later will, whichunbeknownst to everyone but the lawyerleaves the money instead to the clients worthless nephew, who will spend it all on beer and comic books. 120 The lawyer is tempted to suppress the will. We may want to adjust Korsgaards hypothetical a bit. We may need a more disturbing beneficiaryperhaps instead of the indulgent nephew we should invent some cult that defrauds the elderly to pay for their leaders luxury cars. And we will need to explain how it is possible that the second will is both valid and certain to remain undiscovered if the lawyer suppresses it. (Perhaps the lawyer has just left the clients house when the client calls his cellphone to say, I just saw a commercial for the Universal Church of Flakiness on TV. They sound great! Im drafting a new will right now; the lawyer turns his car around and heads back to urge the client to reconsider, but finds upon arrival that the client, alone in the house, had a heart attack promptly upon finishing his new, valid holographic will.) Most lawyers, I think, would not find Korsgaards hypothetical, even after these adjustments, a challenging one. 121
118

Id. at 86.

119 BERNARD WILLIAMS, TRUTH AND TRUTHFULNESS: AN ESSAY IN GENEALOGY 85-86 (2003). 120

Korsgaard, supra note 1, at 86.

121 Presentation of Korsgaards hypothetical to an experienced trust-andestates lawyer of my acquaintance elicited a baffled reaction. He had trouble understanding why anyone would think this a dilemma.

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It may seem obvious to a person sufficiently immersed in the practice of American lawyering that suppressing the will is the wrong thing to do. The question is how this conclusion can be justified. Philosophers often point out that justifying a practice like promise-keeping in terms of its consequences seems not to capture how the practice really works. Virtually every moral argument about promises includes the observation that society could probably not flourish without the institution of promising. 122 But as Ross points out, there must be some cases in which breaking a promise will produce better consequences than keeping it. 123 If your only reason for keeping promises is that they have good consequences, you are bound in such cases to break them. Mere appeals to the aggregate consequences of promisekeeping seem not to reflect what we really value about the practice, because if the consequences of promise-keeping were what really mattered, wed all be doing a lot of difficult balancing of consequences before we kept a promise, and of course that kind of balancing is precisely what the institution of promise-keeping is supposed to prevent. It may seem clear that if lawyers generally began losing wills they disliked, we would have the oligarchy of lawyers that legal ethicists have long warned about. 124 But this danger does not itself amount to a practical reason for Korsgaards lawyer not to suppress the will. 125 We need a further premiseeither that
122 See, e.g., DAVID ROSS, THE RIGHT AND THE GOOD 37 (1930, repr. 2009) (promises are one of the devices that have been found most useful in the relations between man and man). 123

Id. at 38.

124 Presumably that oligarchy would be quickly overthrown by procedures that prevented lawyers from being temptedfor example, a ban on holographic wills, or a requirement that wills be filed with a relevant authority at the time they are executed.

In Korsgaards hypothetical, the lawyer asks herself if her feeling of disapproval is really a reason not to suppress the will, and discovers that she disapproves of such acts only because they usually lead to bad consequences. But this act, by hypothesis, will not have bad consequences. Therefore, far from feeling that the usual consequences of such acts are a reason not to
125

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her action will in fact undermine the publics trust in their lawyer, or that she should not suppress the will even though her choice will not affect public trust in lawyers. In other words, we must claim either that her action will itself establish an oligarchy of lawyers, or that her action will be intrinsically wrong regardless of its consequencesbecause of its oligarchish quality. Another way to explain the problem is to say that when the policy-maker considers aggregate consequences, they are real consequencesprospective, but real. Policy-makers who debate whether to enshrine the principle of Nonaccountability in the Model Rules of Professional Responsibility, for example, must decide whether they wish that principle to be generally observed. They are debating which actual aggregate consequences will be best for society. But when a practitioner talks about aggregating consequences, theyre hypothetical consequences. If everyone acted as King & Spalding did, Gillers asks us to imagine, what would be the consequences? But everyone will not act as King & Spalding did. 126 This leaves a gap. The gap is between claims that a certain action, if aggregated, would have good or bad consequences, and claims that individual lawyers should therefore choose or not choose that kind of action. The question that must be answered before any argument about hypothetical aggregate consequences can work is: why should hypothetical aggregate consequences be relevant to my actual choice? Legal ethicists sometimes assume that aggregate consequences create reasons for individuals. Wendel, for example, argues that lawyerly refusal to participate in clients immoral projects threatens to undermine the legal system. 127
suppress the will, she concludes that the absence of such consequences here leave her with good reason to suppress it. Korsgaard, supra note 1, at 88. Korsgaard offers this hypothetical as part of her larger argument about the role of consequences in normativity, which is not explored here. See A.C. Ewing, What Would Happen if Everybody Acted Like Me?, 28 PHILOSOPHY 16, 17 (1953) (Why on earth should I be debarred from doing something, not because my doing it produces bad consequences, but because, if everybody did it, which I know will not be the case, the consequences would be bad?).
126 127

Wendel, supra note 29, at 131-133.

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Wendel appears to be making a claim about individual lawyers situations when he writes, A lawyer must be concerned about the effective functioning of the law, because without it, neither she nor her client could realize her own interests. 128 But if this is a claim about any particular lawyers situation, it is plainly false. Lawyers and clients frequently achieve their goals without showing any concern for the effective functioning of the law. Sharks do get their meat. We can see this problem as one of perspective. From societys perspectivethe perspective of a policy-makerit may be useful, or even vital, that individuals in general see particular actions or dispositions as intrinsically good. But an individual agent cannot treat something as intrinsically valuable just because she knows it would be useful for most people to see it that way. If telling the truth or respecting the law works an injustice in the particular situation I confront, it will do no good for me to remind myself that it is in general useful for people like me to hold a belief that telling the truth or respecting the law is intrinsically good. 129 As Williams writes, no line of argument which sets out from a game-theoretical formulation of the problems of trust could possibly show that trustworthiness had an intrinsic value: the most the argument could show is that it is useful for people to treat it as if it had an intrinsic value. 130 Policies are made with the expectation that people generally will follow them. Individual ethical choices are not made with the expectation that people generally will follow them. And in some cases, the consequences of an individual choice can point strongly against following the policyeven if the policy is a perfectly admirable one.
128 129

Id. at 133 (emphasis his).

Williams, supra note 119, at 90-91. In fact, even if I could establish that my individually holding a certain belief would have good consequences, that would not give me any reason to conclude that the belief was true. By way of analogy, imagine someone convinced you that thousands of lives could be saved if you believedone minute from nowthat Michael Bolton was a good singer. This might inspire you to attempt self-hypnosis or some other means of shortcircuiting your reasoning faculties. But it would not persuade you that he is a good singer. See Gregory S. Kavka, The Toxin Puzzle, 43 ANALYSIS 33 (1983).
130

Williams, supra note 119, at 90.

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Another way to explain the problem is in terms of marginal costs and benefits. The problem is related to the collective action problems that are familiar in game theory and other social sciences. 131 It arises from two facts that point in different directions. On one hand, society may depend on people collectively acting in a particular waykeeping their promises, or, if you accept Gillers claims, supporting an adversary system in which lawyers are not accountable for the justice or injustice of the results they advocate. But on the other hand, the marginal benefits and costs of any single decision may give individuals powerful reasons not to act in the way that society needs them to. In the case of the King & Spalding affair, critics of Clements view apparently believed that defending DOMA risked bad consequences that far outweighed any marginal effects on the ability of the poor and the weak to obtain representation. This problem is related to the problem of free-riding, but it is not itself a problem of free-riding. As David Wasserman observes, we cannot be criticized for free-riding if we violate the norms of a social practice to achieve what is, all things considered, the greater good. 132 Nor can we be criticized for failing to conform to a generally beneficial practice when our conformity would confer no marginal benefit. 133 Korsgaards lawyer is not tempted to freeride on the practice of fidelity to clients last wishes. She is tempted to make an exception to this practice because she knows that the practice will be largely unchanged by her choice. What we need is a way to understand when individual lawyers should choose the kinds of actions that have desirable aggregate consequences, even when the consequences of their individual decision seem to count in the other direction. The rest of this article will explore the various strategies that can be offered to get across the gap between aggregate consequences and individual practical reasoning. Part III will discuss ways to bridge the gap. The rest of Part II will discuss whether the gap can be avoided.
131 132 133

See generally Hardin, supra note 69. Wasserman, supra note 132, at 400 n.49. Id.

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D. Can We Avoid the Gap? One way to deal with the gap between aggregate consequences and practical reasoning is not to rely on aggregate consequences in the first place. Instead of relying on the aggregate consequences of actions like ours, legal ethicists sometimes base their arguments on the consequences of the specific choice at issue. This strategy makes the problem go away. But it is not always available. To rely on individual consequences, rather than aggregate consequences, it will often be necessary to argue that the consequences of an individual choice are more significant than they seem. I will discuss two ways in which we might make such arguments. First, we might argue that consequences can be significant even if they are too small to be perceptible to us. Second, we might argue that our choice will have indirect, longterm consequences. The first strategy involves reliance on small consequences. We might claim that it is worthwhile to contribute something to a collective good, even when our contribution is too small to be perceptible. By the same token, we should avoid contributing to collective bad consequences, even if our contribution is small. We can imagine making an argument of this kind about King & Spaldings withdrawal from the defense of DOMA. Such an argument would claim that although the withdrawal will not have any perceptible impact on the prospects for representation of unpopular clients, it will have an impact. Paul Clement can argue that he is doing his part to preserve a cultural understanding that lawyers are not accountable for the justice of the causes they represent. Our society generally allows lawyers to represent unpopular causes without criticism, and it is this societal understanding that makes representation a realistic possibility. That societal understanding, however, is composed of uncountably many individual attitudes. An individual case may have only a small impact on a small number of individuals attitudes; but that impact counts too.

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Derek Parfit argues that it is a mistake to claim that imperceptibly small consequences are morally insignificant. He asks us to imagine a prison with a thousand inmates. Each is hooked up to an apparatus that tortures them. To activate the apparatus, a torturer must flip a switch a thousand times. Each flip causes an imperceptible pain together, but when the switch is flipped a thousand times, the imperceptible pains add up and become agonizing. 134 Parfit then asks us to imagine two alternative staffing arrangements for the prison. In one, each torturer flips a single switch a thousand times. In another, the torturers rotate a thousand times during the day, so that each torturer flips each switch only once. 135 It is clear that in both stories the torturers are acting wrongly; in fact, they are acting horribly. This hypothetical is supposed to show that we can fully understand the moral significance of our actions only when we ask whether they are part of a larger group of actions. A similar argument can be made about legal ethics. No walls will crumble if I decline a particular representation because of my views about its justice. But I will be doing my part to ensure that the justice system functions well. And I can feel proud to be doing my part. It is like littering: if I drop a beer can in the gutter in Manhattan, the citys overall beauty will not be affected in any perceptible way. But there will be one more beer can in the gutter. This will often be a good argument, but it will not help much in situations of ethical conflict. Even if we grant, as I think we should, that small effects are morally significant, it is difficult to see how they could outweigh the unquestionably significant interests that sometimes figure against following the norms of lawyering. In Clements case, for example, critics of his decision believe that the enforcement of DOMA is a major injustice. Accepting this premise, as most commenters on the King & Spalding controversy do, means accepting that successful defense of DOMA will preserve an unjust law and cause emotional pain to many gay and lesbian couples who are affected by it. These are
Parfit, supra note 35, at 78-82. Id.

134 135

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significant bad consequences. It cannot seriously be argued that bad consequences of this magnitude are outweighed by the individual effects that Clements decision will have on the ability of unpopular defendants to seek representation. Hardly any significant individual reasons will be outweighed by the tiny effects that individual decisions have on collective goods. Small consequences may matter, but they matter only a little. This drives us to look for a second way of avoiding the gap. A second strategy for avoiding the gap between aggregate consequences and individual decisions is to invoke the indirect consequences of the lawyers own actions. Sometimes, we can argue that although the immediate consequences of a specific act will be good, the long-term consequences will be bad. For example, if we were advising Korsgaards lawyer on whether to suppress the will, it would surely be wise to point out that secrets tend not to stay secrets. The chances of getting caught in this case may seem slim. But the lawyers career will likely involve many cases in which the chances of getting caught are slim. It is a bad idea to start breaking rules when it seems likely that she can get away with it. It will be hard not to make this a general practice. And if she makes it a general practice, it becomes very likely that she will eventually be caught. Even if it seems easy to break the rules in one particular case, it is not easy to draw the lines that must thereafter be drawn. The likely longterm consequences thus present her with a powerful, although indirect, reason to follow the rules today. Rather than aggregating lawyers decisions generally, this strategy aggregates only the lawyers own decisions. It argues that it will be best for her to adhere to a certain rule. Rather than relying on aggregate social consequences, we can rely on aggregated individual consequences. There are many other cases in which ethical dilemmas are avoided, rather than solved, through creative appeals to selfinterest, as when one of the sleazy salesman in the play Glengarry Glen Ross says, Always tell the truth. Its the easiest

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thing to remember. 136 These practical strategies leave perfectly intact the gap between aggregate consequences and individual choices. They involve ways of arguing that regardless of what the aggregate consequences are, our choices will have the best consequencesbe they ever so small or indirectif we happen to choose the kind of action that happens to have, in the aggregate, the best consequences. Many real-world dilemmas are solved this way. And the ability to find ways out of dilemmas with practical strategies like these may be one of the most important ethical skills. 137 Still, it is likely that some lawyers will often encounter situations where we cannot argue that the lawyers individual decisions, when aggregated, will have bad consequences. E. Should We Ignore the Gap? Another way to deal with the gap is to claim that we should ignore it. We might claim that it is always morally admirable for individual practitioners to think like policy-makers. A number of moral theories attempt to argue that individual decision-makers should behave as if they were responsible for the aggregate consequences of actions like theirs.138
DAVID MAMET, GLENGARRY GLEN ROSS 61 (1984). A few pages later, Rick Roma, the salesman who gives this advice, begins lying wildly to his client, pretending that a fellow salesman is a large investor who needs to get to the airport. Id. at 78-81. But the play shows the advice was sound. Romas lie is exposed when the office manager addresses Romas colleague by his real name in front of the client. Id. at 87-88. The officer manager then himself tells an unnecessary lie, and the practical disadvantages of untruthfulness are demonstrated again when that lie results in the officer manager receiving one of the most intense barrages of verbal abuse in American drama.
136 137 Christine Swanton argues that practical wisdomthat is, ethically admirable decision-makingis the ability to integrate the ethical constraints that apply to various situations. Rather than deciding which principles are superior to other principles, the virtuous agent is distinguished by her ability to progressively specify and respecify the constraints that apply to a situation, in a way that preserves the basic point of each, until they can all be accommodated (rather than ranked). CHRISTINE SWANTON, VIRTUE ETHICS: A PLURALISTIC VIEW 254-58 (2003). 138

See discussion in Parfit, supra note 33, at 296.

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For example, we might claim that it is morally wrong for an individual to do something that she could not, as a policymaker, wish everyone to do. But in some cases that is not true. It is often perfectly proper to do something that not everyone can do. Parfit gives several examples of non-universalizable maxims or policies that an individual could permissibly or admirably follow: Consume food without producing any, Become a dentist, and Live in Iceland, to absorb the spirit of the Nordic Sagas. 139 We could not, as policy-makers, wish for everyone to do each of these things. If everyone followed these policies, we would all be underemployed Icelandic dentists who starved themselves to death. 140 But that does not make it wrong for an individual to make any of these choices. We could claim, instead, that it is wrong for an individual to do something that she could not, as a policy-maker, allow everyone to do. This is a better claim. It opens one of the deepest questions in moral philosophy. 141 But it is difficult to derive action guidance from this formula. The problem is this. Say youre in a situation where the aggregate consequences are apparently trumped by some countervailing specific consequence. And say that you want to ignore the aggregate consequences and do what seems to have the best immediate consequences. In these conditions, you can will your beliefs to be universalizable. Korsgaards lawyer, for example, can claim that there should be an exception: when presented with a truly amazing opportunity to do good and get away with it, everyone should take that opportunity. Critics of Clement can argue that lawyers should generally advocate unjust causes but make a limited exception for cases like this one. This exception could be defined in any number of ways to ensure that it is genuinely limited. It could include only cases where the cause is very unjust, the client is certain to be able to find other representation, and where the lawyer has not invoked the
Id. at 309. Id. at 311.

139 140

141 Among many theorists who try to justify claims like these, see Hooker, supra note 65, at 5, and Mill, supra note 65, at 19.

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exception in many years. This exception, so defined, would not threaten the aggregate consequences with which Clements defenders are concerned. 142 This may sound like undue cleverness, but that is the point: a simple claim that lawyers should hold only universalizable beliefs invites clever tinkering, rather than substantive ethical deliberation about what is at stake. And it is difficult to believe that very many lawyers resolve their ethical problems by testing the universalizability of their moral beliefs. Rather than performing an analysis of this kind, many people decide whether to act in certain ways based on their understanding of intrinsic value. They choose the actions that seem worthwhile regardless of their consequences. Many lawyers faced with Korsgaards hypothetical would react by saying simply that it is wrong to act against the clients last wishes. The next section will ask how a sensibility of this kind is acquired. III. HOW INTRINSIC VALUES BRIDGE THE GAP The previous section claimed that facts about the consequences of lawyers actions in general are not necessarily reasons for individual lawyers to choose any particular action or attitude. This gap between aggregate consequences and practical reasoning does not pose a significant problem for legal ethicists who take the policy-makers perspective. Policy-makers are naturally concerned with aggregate or collective consequences. But for legal ethicists who wish to take the lawyers perspective who wish to offer action guidance to practitionersthe gap is a significant problem. 143
142 Along related lines, Hooker creates a catastrophe exception to his ruleconsequentialist decision procedure. Hooker, supra note 63, at 98-99.

There are many lawyering situations in which there is no problem presented by the gap between aggregate consequences and practical reasoning. Lawyers often have reason to act in ways that directly promote things that have uncontroversial value. For example, a lawyer may help a client obtain adequate medical treatment, thereby promoting human health, which everyone understands to be intrinsically valuable. In such cases there is little need for a theory. The lawyers action plainly has intrinsic value. But in many
143

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To bridge the gap, we will have to show that a certain kind of actionan action which, if imitated by enough people, would lead to good aggregate consequencesshould be done even if it does not itself contribute to those consequences. An action is intrinsically good if its goodness does not depend on its consequences. 144 It is relatively uncontroversial, at least in ordinary conversation, to say that some things are intrinsically valuable. If we say, for example, that we chose to do something in order to save a human life, or because we are in love, it would be surprising to be asked, But whats the point of that? People who participate in social practices often find intrinsic value in them. Alisdair MacIntyre gives the example of a child who is learning to play chess.145 If her reason for playing is that someone has offered her candy, she is instrumentally motivatedplaying for the sake of the candy. This gives her every incentive to cheat. Eventually, however, when she starts to care about the game, she begins to see that there are goods specific to chess: the achievement of a certain highly particular kind of analytical skill, strategic imagination and competitive intensity. 146 Those practice-specific goods give her a new set of reasons, reasons now not just for winning on a particular occasion, but for trying to excel in whatever way the game of chess demands. 147 Now she has an incentive not to cheat; and now she is able to find the game rewarding in a way that she
cases it is not clear whether lawyers practice has value. These are the cases in which theoretical work can be useful. See Parfit, supra note 33, at 50; Raz, supra note 58, at 15-16. The term intrinsic can be used in various ways. Christine Korsgaard observes that it can refer to things that are not instrumentally valuable, or things that are not extrinsically valuable. A thing is intrinsic-as-opposed-to-extrinsic if we value it because of its internal structure, as opposed to its relationship to other considerations. A thing is intrinsic-as-opposed-to-instrumental if we value it for its own sake, rather than for its consequences. CHRISTINE M. KORSGAARD, Two Distinctions in Goodness, in CREATING THE KINGDOM OF ENDS, at 149 (1996). As used in this article, the term means intrinsic-as-opposed-toinstrumental.
144 145 146 147

ALISDAIR MACINTYRE, AFTER VIRTUE 188 (2d ed. 1984). Id. Id.

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could not before. The game isto use Wendels apt phrase intrinsically reason-giving. 148 We should distinguish between the intrinsically valuable things that can be accomplished or acquired through the practice of lawyering and the intrinsic value of lawyering itself. Some lawyers, like MacIntyres child who plays chess for candy, might see the practice of lawyering as a mere instrument. In other words, they might see lawyering as valuable only insofar as it produces valuable consequences. This is not always inappropriate; in some cases it can be ethically admirable to treat lawyeringor most social practicesas only instrumentally valuable. A civil rights lawyer who challenges racist laws, for example, might reasonably view lawyering as a mere instrument to the important goal of social justice. The value of lawyering, in other words, comes from its intrinsically valuable consequences. A professional sports player with a sick child might see the game as a mere instrument; the only significant reason for playing is to make money to keep the child healthy. Instrumental value can be real and meaningful value. Nonetheless, it is natural for people to look for intrinsic value in their work itself. James Boyd White argues, for example, that lawyering can be valuable regardless of whether the client is right and whether the system in general is just. The lawyers job, according to White, is to make the best possible argument for the clients positionto offer the best version of our discourse that we can compose in support of that position. 149 An admirable lawyer tries always to promote the best (legally and ethically best) version of the clients position, and the judges analysis, and this, White claims, is a reason to see the work itself as intrinsically valuable. 150 Even in the sectors of the profession that are often seen as predatory and exploitative, people want to see their work as valuable in itself. For example, the lawyer Joseph Flom is
148 149

Wendel, supra note 29, at 61.

JAMES BOYD WHITE, HERACLESS BOW: ESSAYS ON THE RHETORIC & POETICS OF THE LAW 226 (1989).
150

Id.

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portrayed in Lincoln Caplans book Skadden as a master of corporate legal hardball. But Flom also says, An institution, if its to be worthwhile, has to be more than just a moneymaking organization. 151 Lawyers who take pride in their work do so because there is something in their work that is valuable in itself. Employers have reason to want their employees to find instrinsic value in their work as well. The psychologist Tom Tyler notes that [e]ven the mundane tasks associated with fast food restaurants are difficult to motivate with money. 152 What Tyler calls social motivations are typically more important in workplace settings generally than instrumental motivations like the desire for financial rewards. 153 These social motivations included employees sense that the organization for which they work manifested certain intrinsic values, including legitimacy, trustworthiness, procedural justice, and congruence with the employees moral values. 154 According to Tyler, these social motivationsthe perception of these intrinsic valueshave a much greater influence than instrumental motivations on the degree to which employees follow the organizations rules, and go beyond what is strictly required in performing their jobs. 155 The degree to which employees are socially motivated explain[s] many times as much variance in cooperation[] as do instrumental motivations. 156 There are, then, two reasons for legal ethicists to be interested in understanding what lawyers find intrinsically valuable in their practice. The first is that lawyers may act differently if they perceive instrinsic value in their practice. Tylers research suggests that lawyers who see intrinsic value in
LINCOLN KAPLAN, SKADDEN: POWER, MONEY AND THE RISE OF A LEGAL EMPIRE 191 (1994).
151 152 TOM TYLER, WHY PEOPLE COOPERATE: THE ROLE OF SOCIAL MOTIVATIONS 3 (2011), discussing K.S. NEWMAN, NO SHAME IN MY GAME: THE WORKING POOR IN THE INNER CITY 176 (1999). 153 154 155 156

Tyler, supra note 168, at 56. Id. at 53-54. Id. at 58. Id.

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their work may be better lawyers, both in ethical terms and in terms of competence. This is a concern from the policy-makers perspective. If we want lawyers to cooperatethat is, to work hard and follow ethical ruleswe want to understand the social motivations that drive a great deal of cooperation. The second reason is the existence of the gap between aggregate consequences and lawyers reasons. If legal ethicists want to provide meaningful action guidance for lawyersif, that is, they want to take the lawyers perspectivethey will need to do more than just point out the desirable aggregate consequences of lawyers actions. They will need to help lawyers see the intrinsic value in the actions which, in the aggregate, promote those consequences. This section will try to identify the principal requirements that any account of intrinsic value must satisfy. It will then evaluate one recent attempt to give an account of the intrinsic value in lawyering, that of Daniel Markovits, who argues that it is intrinsically good for lawyers to act with what he calls fidelity. Although I will claim that Markovitss account is ultimately unsuccessful, it illustrates some central points about how intrinsic value works. Finally, I will suggest that accounts of intrinsic value in lawyering might usefully begin with the values that real lawyers perceive in their day-to-day practice, rather than with the values that can be derived from the law of lawyering or from political theory. A. How Intrinsic Value Works Bernard Williams argues that there are two requirements we must satisfy before we can view an action or disposition as intrinsically valuable. First, the action or disposition must have good aggregate consequences. In Williamss words, it must serve an important instrumental purpose that can only be accomplished if people in general treat it as intrinsically valuable. 157 Second, the value must be stable under reflection, meaning that the agent has some materials in terms of which can understand this
157

Williams, supra note 119, at 92.

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value in relation to other values that he holds.158 I will discuss these two requirements in turn. The first condition is familiar to us: it is the requirement that an action or disposition be of a kind that would have good aggregate consequences if people generally adopted it. We might question whether it is necessary for intrinsic value to have good aggregate consequences. Some forms of artistic expression, scientific achievement, or interpersonal relationships might be thought intrinsically valuable regardless of their consequences. 159 That is an important question, but it is beyond the scope of this article. My question is how legal ethicists can bridge the gap from claims about aggregate consequences to claims about intrinsic value. So I assume, for purposes of this discussion, that whatever actions we are discussing are actions that we believe will promote good aggregate consequences. Williamss second requirement is stability in relation to the agents other values. Williams writes that those who treat something as intrinsically valuable must themselves be able to make sense of it as having an intrinsic value.160 Using the example of the intrinsically valuable disposition to be trustworthy, he writes that the value must make sense to them from the inside, so to speak: it must be possible for them to relate trustworthiness to other things they value, and to their ethical emotions. 161 Along similar lines, Joseph Raz explains that we need to employ all the evaluative/normative concepts at our disposal . . . to understand and establish the nature of any of them, and to establish the nature of what is good or bad. 162
Id.

158

159 Martha Nussbaum argues that love can be valuable even when it has bad consequences. MARTHA NUSSBAUM, Steerforths Arm: Love and the Moral Point of View, in LOVES KNOWLEDGE: ESSAYS ON PHILOSOPHY AND LITERATURE 335 (1990). Compare Razs account, in which cultural values are among those that give life meaning. Raz, supra note 58, at 36. 160 161 162

Williams, supra note 119, at 91. Id. at 91-92.

Raz, supra note 58, at 148. Raz also claims that values can only be justified in terms of other values: the correctness of value claims can be established only by appeal to other value claims. Id. at 126. This is related to

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Williams argues that there is nothing more to intrinsic value than good aggregate consequences and stability in relation to the agents other values. If these conditions are satisfied, he writes, it would be odd to say that there is something further which would count as its really being an intrinsic good, of which these conditions offer only a surrogate or mock-up. 163 I will argue that Williamss account is a good starting-place by comparing it to another account, the one adopted by Daniel Markovits his book A Modern Legal Ethics. Markovits presents his account in the course of discussing whether it is possible to create for lawyers a role-based redescription of their less-thanadmirable dispositions. He claims that lawyers are required by their role to lie and cheat, and that this puts them at odds with ordinary morality. 164 He sees only one way out of this crisis, which is role-based redescription: a reinterpretation of lawyerly dispositions that will enable lawyers to see those dispositions as admirable rather than vicious. 165 Markovits says that role-based redescription can work for lawyers if two requirements are satisfied. First, the ideals offered by the redescription must be attractive. Second, they must be sustainable against the background of the agents culture. Williams and Markovits are both trying to explain how practitioners can find intrinsic value in their practice. Williamss account is a general one, while Markovits focuses specifically on lawyering. But they are asking the same question: how can an account of value in a social practice be justified? Each of them offers two requirements. I will argue that they effectively agree that the first requirement is that the social practice have good
what some philosophers call the irreducible normativity of reasonsthe fact that the only thing we can offer to defend the claim that something is a reason is something else that is itself a reason. See DEREK PARFIT, 2 ON WHAT MATTERS 267 (2011).
163 Williams, supra note 119, at 93. Another way of putting it is that . . . the value can be represented as arising from more primitive needs and desires, and that when we reflect on that story, we can find the value intelligible without at the same time losing our hold on it. Id. at 92. 164 165

Markovits, supra note 22, at 42, 115. Id. at 108.

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aggregate consequences. Their second requirements are different. I will argue that Williamss is better. 1. The First Requirement: Good Aggregate Consequences Markovitss first requirement, attractiveness, works out in practice to be nothing more than the requirement that the action or disposition in question have desirable aggregate consequences. Markovits does not describe it that way. He says that attractiveness involves being internally consistent and connected to a recognizable vision of human flourishing. 166 He says this is a condition on the substance of the ethical ideals, as opposed to their context. 167 And he criticizes writers who focus on aggregate consequences. 168 He says that they are asserting the hegemony of third-person impartiality over the value of firstpersonal integrity. 169 But when he builds an argument for the attractiveness of a particular ideal, he talks almost exclusively about its aggregate consequences. Chapter Eight of A Modern Legal Ethics purports to explain why the substantive content of the lawyers role (as Markovits interpretively reconstructs it) satisfies his requirement of attractiveness. 170 But the argument he offers in that chapter focuses exclusively with the ways in which lawyers actions can contribute to political legitimacy. 171 Markovits develops a detailed account of how lawyers actions contribute to the political legitimacy of the government in a given society. This argument relates not to individual lawyers choicesindeed, Markovits acknowledges that many lawyering decisions have no impact whatsoever on the governments legitimacy 172 but to lawyers in
Id. at 164. Id. at 164, 166.

166 167

168 Markovits writes that conventional approaches to legal ethics, which focus on the adversary system, implicitly devalue lawyers interests in their own integrity. Id. at 108-111. 169 170 171 172

Id. Id. at 171. Id. at 171-211. Id. at 172-73.

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the aggregate and what effect they have on collective goods. Substantive attractiveness, as Markovits understands it, seems to translate into nothing more than desirable aggregate consequences. Despite Markovitss criticism of theorists who focus on aggregate consequences, Markovits himself seems to accept, at least in practice, that they form an important component of intrinsic value. Until he offers more of an explanation of what, apart from having good aggregate consequences, it means for an ideal to be substantively attractive, we can assume that his first requirement is the same as Williamss first requirement. 2. The Second Requirement: Secession or Stability? Markovitss second requirement, cultural and institutional support 173 , is dramatically different from Williamss second requirement, stability in relationship to the agents other values. Williams thinks we make sense of intrinsic value by relating it to stabilizing valuesbackground values against which we can understand voting as an intrinsically valuable thing to do. Markovits does not give a general account of intrinsic value, so we do not know what he would say about voting. But he claims that for roles like lawyeringroles that violate ordinary morality we can only understand the practice as intrinsically valuable if it is authoritatively insular from the rest of the culture. This is a mistake. For Markovits, the construction of intrinsic value involves looking to the relevant culture to see what it will support. His analysis involves looking at the specific social practice lawyeringand its relationship to the larger culture.174 Markovits claims that the only way to sustain a sense of value in the practice of lawyering is to make the role of lawyer authoritatively insular. A role is authoritatively insular when role-occupants, who take their first-personal ethical ideals and ambitions from the role rather than from ordinary morality, are not shaken by the fact that others reject these ethical concepts, or

173 174

Id. at 166. Id. at 227-245.

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even reject the role outright, for themselves.175 The only way to sustain a sense of value in lawyering, it seems, is for lawyers to declare their independence from ordinary morality. As I argued above, we should not be eager to assume that lawyerly morality and ordinary morality must form two different systems if lawyerly morality is to be sustained. 176 The fact that there are ordinary moral reasons not to do what lawyers do is not a reason to conclude that lawyers morality is a separate system. Instead, it is a reason to look for countervailing reasons. To look for countervailing reasons in lawyering is to look for intrinsic value in it. If lawyering is intrinsically valuable, that fact gives us a reason to do it even though there are ordinary moral reasons not to do it. Rather than looking for reasons to stop caring what our society thinks of our practice, we should look for a way to understand whether that practice is intrinsically valuable. Williamss account of intrinsic value is a more promising starting-place. Williams explains that when a value makes sense to a given agentthat is, when it satisfies Williamss second requirement of stability in relation to the agents other valuesit often does so in light of the specific social practice in which the agent is engaged. As Joseph Raz claims, the justification of a claim that there is intrinsic value in a social practice proceeds in terms of other values, and the way they are to be realized in particular circumstances. 177 To justify a sense that a social practice has value, we must invoke other valuesstabilizing values. Different social practices may rest on different stabilizing values. Williams illustrated this point in a way that confused many critics. The first half of his book on the intrinsic value of truthfulness attempts to develop an account of what sorts of truthfulness human society needs in order for cooperative projects to succeed. In other words, it deals with the aggregate
175 176

Id. at 225. See Part I.E, supra.

177 JOSEPH RAZ, The Value of Practice, in ENGAGING REASON: ON THE THEORY OF VALUE AND ACTION 210 (1999).

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consequences of truthfulness. The second half of the book then seems to fragment, each chapter dealing with truthfulness in a separate context, from the value of truthfulness to historians to its value in liberal politics.178 Some reviewers thought the book devolved into a series of unrelated essays, 179 but they missed Williamss point. Intrinsic values can be fully understood only in relations to the values that stabilize them, and stabilizing values will be different for people in different social practices. There is a great deal of variety in the kinds of materials in terms of which [the agent] can understand the way in which truthfulness, for example, is intrinsically valuable. 180 As Williams writes, there is no one reason for preferring the truth. 181 To accuse a politician of lying and to accuse a scientist of lying are two very different things. The value of truthfulness in science has to do with our understanding of science as a noble confrontation with the obstinacy, the unanswerability, of natural fact. 182 A scientist who fudges results is like a mountaineer who takes a helicopter to the summit. 183 But truthfulness operates very differently for politicians. We understand a politicians lie as wrong because of our political values, including perhaps our understanding that power is legitimate only when it is based on the consent of the governed. 184 In this way, virtues like
178

Williams, supra note 119, at 149-269.

179 See, e.g., Samuel Fleischacker, Bernard Williams, Truth and Truthfulness: An Essay in Genealogy, 114 ETHICS 380, 382 (2004) (book review) (the concluding chapters do not have much to do with the explication of the role of truth in the first four chapters, nor do they connect very closely to one another.). 180 181 182

Williams, supra note 119, at 92. Id. at 263.

Id. at 144. It is key to the practice of science, Williams argues, that scientists not see themselves as struggling against other peoples wills; this is why the scientist and Holocaust survivor Primo Levi was able to find in his scientific research a powerful antidote to fascism: the dictates of nature are not the product of anyones power. Id. at 146.
183 This is a slight modification of Williamss analogy to mountaineering. (I added the helicopter.) See id. at 144.

Id. at 232. And this understanding is debatable. As Williams writes in a beautiful passage, it is not foolish to believe that any social and political
184

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truthfulnessdispositions we understand as intrinsically valuablemake sense in terms of the social practices in which they are instantiated and in terms of the underlying values that draw us to those practices.185 By stressing the diversity of possible sources of stabilizing values, Williamss account suggests that there are many possible ways to find a sense of intrinsic value in lawyering. If we are looking for intrinsic value in legal ethics, we can ask what stabilizing values are already present in the practice of lawyering or in the culture at large. Markovitss account does not allow us to look to the culture at large for stabilizing values. It assumes that the culture at large is a threat, from which lawyers must be insulated if they are to preserve their self-respect. We should not give up on finding stabilizing values in our culture until we have try it. Markovitss focus on the essential nature of the lawyers role also blinds him to the possibility of personal and idiosyncratic value. Williamss account stresses that it is the agents other values that must stabilize the value of a practice.186 Williams, in other words, takes the lawyers perspectivewhich includes not just background cultural values but personal, individual commitments and values as well. This is the right approach. Ethical deliberation involves more than asking what values are already present in the culture around us or in the social practices we join. It involves a creative process in which the
order which effectively uses power . . . must involve opacity, mystification, and large-scale deception. Reasonable people can believe, contrary to the ideals of liberalism, that human beings cannot live together effectively . . . if they understand fully what they are doing. It is not necessarily foolish to believe these things, but they may not be true, and we can still live in the hope . . . that they are not. Id. On the relationship between virtue and social practices, see MacIntyre, supra note 147, at 198-196. Raz claims that [c]oncrete values are not determined by universal values any more than Chippendale chairs are made necessary by the concept of a chair. Raz, in ENGAGING REASON, supra note 177, at 210.
185 186 Williams, supra note 119, at 92 (asking whether the agent has some materials in terms of which can understand this value in relation to other values that he holds.).

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individual challenges her social context, and builds on it. As James Boyd White argues, anyone who wants to construct an authentic value, whether it is moral or aesthetic, does not collapse into his culture . . . but in some measure breaks himself out of his culture, distancing himself from it by claiming to maintain and improve it.187 Someone in search of intrinsic value assimilates himself not to the culture as it is, but to his own ideal version of it. 188 Markovitss account neglects the importance of personal, idiosyncratic commitments and values because they are not common to all lawyers. Markovits writes that he is concerned only with says the generic core of adversary advocacythe basic commitments that every form of adversary lawyering must accept. 189 This focus limits Markovitss analysis, closing off the important possibility that lawyers will find in their practice values that are contingent. There is no reason to think that when we look for the values that can help stabilize a conception of intrinsic value in lawyering, we will find them in the generic core of the practice itself. For example, the fact that a civil rights lawyer promotes justice in a particular town is a contingent, individual fact about her practice. It is not a truth about all lawyers. But it may be what, for that individual lawyer, seemslegitimatelyto be the most valuable thing about her practice. Consider the familiar problem posed by the question whether to vote in a presidential election in the United States.190
187 188

White, supra note 149, at 228. Id.

189 Daniel Markovits, How (and How Not) to Do Legal Ethics, 23 GEO. J. LEGAL ETHICS 1041 (2010). Markovitss book often uses the word genetic, as when he claims that the principles immanent in lawyering law exert genetic pressures . . . on lawyers who practice under them. Markovits, supra note 22, at 25.

See Hardin, supra note 69, at 11 (The logic of collective action yields a notoriously poor explanation of voting behavior, since it suggests that no one would voluntarily vote in, say, American national elections. It helps us understand why half of eligible Americans do not vote, but it does little to help us understand the other half.). See Alexander A. Guerrero, The Paradox of Voting and the Ethics of Political Representation, 38 PHIL. & PUB. AFFAIRS 272
190

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Having a good president is a collective good. If you live in a swing state, there may be a non-laughable prospect that your vote will make a difference, and given what is at stake, it may be reasonable for you to vote just on the chance you make the difference. 191 But in a state like New York, where the probability of a decisive vote is closer to 1 in a billion, any reasons for voting must go beyond any instrumental rationality. 192 The question, then, is what gives a New Yorker a good reason to vote, if not the prospect of influencing the outcome. Put differently, the question is how New Yorkers can see intrinsic value in voting. There is no one answer to this question. Rather, the answer emerges from a complex array of values that may vary significantly from individual to individual. For some, the act of voting relates to being a good citizen. Good citizenship is itself a different set of values for different people: for some it is related to autonomy, 193 while for others it is a matter of community, as with a newly naturalized citizen who votes to express her engagement with her new co-citizens. Some people vote not to express the values of citizenship but to express their membership in a political party or the community of supporters of a particular candidate. Some peoples reasons for voting may have little to do with politics. While poll-watching in Wisconsin, I met a woman who had dragged her husband, who had just been released from prison, to the polls to teach him something about responsibility. (If it is true that votingas paradigmatically political an act as
(2010) (arguing that it is rational to vote in order to increase a candidates apparent mandate (degree of support); also contains a brief and useful review of literature on the rationality of voting). Derek Parfit makes a similar argument. Parfit, supra note 35, at 73.
191 See Andrew Gelman, Nate Silver and Aaron Edlin, What is the Probability Your Vote Will Make a Difference?, ECONOMICS INQUIRY 1 (2010). For an argument that individuals should vote to contribute to a candidates perceived mandate, see Alexander A. Guerrero, The Paradox of Voting and the Ethics of Political Representation, 38 PHIL. & PUB. AFF. 272 (2010). 192

Gelman, et al., supra note 191, at 5.

193 As when Stephen Pepper equates autonomy with first-class citizenship. Stephen L. Pepper, The Lawyers Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 617 (1986)

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our society recognizescan be valuable in a non-political way, consider what might be missed if we insist on viewing lawyering from an exclusively political perspective.) These constellations of values and attitudes form individual and sometimes unique conceptions of the intrinsic value of voting in a given presidential election. 194 To say that intrinsic values are often personal and idiosyncratic is not to say that they are just a matter of taste. 195 Values are often personal and idiosyncratic because they arise from commitments made by individuals. I may find value in voting because my late mother was passionate about voting, and I honor her memory by showing up at the polls. I may find value in lawyering because I am proud to be the first lawyer in my familyor the latest in a long succession of lawyers. We find value in things by relating them to our experiences and commitments. Commitments and appreciations like these are ontologically subjective, meaning that their existence depends on facts about the individual agent. But they are epistemically subjective, meaning that any fair-minded person should be able to recognize and acknowledge their existence and importance. 196 Some of our values may be so personal and idiosyncratic that they are beyond the reach of theory. But many will not be. The commitment I made to my mother before she died will not show up on any theorists radar. The fact that a lawyer makes a personal commitment to a client, on the other handalthough it is an individual, situation-specific factis a fact that is present in uncountably many lawyering situations. Personal experiences
194 Note that most of these reasons for voting do depend, to some extent, on a belief that voting in general is good for society. If we all started believing that voting, in the aggregate, is harmful, it would be very difficult to keep seeing it as intrinsically valuable. (Im going to go spit on the sidewalk. Just doing my part!) This supports a claim that good aggregate consequences are in many casesperhaps most casesnecessary to support a conception of intrinsic value. The more difficult question is how we make sense of voting as an intrinsically valuable act.

See Razs argument about the possibility of social dependence without relativism. Raz, supra note 58, at 18.
195 196 The distinction between subjective and epistemic objectivity is from JOHN R. SEARLE, THE CONSTRUCTION OF SOCIAL REALITY 8 (1995).

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and commitments may thus be available to legal ethics theorists despite their individuality. Similarly, some of the background values in terms of which we seek to make sense of lawyering may be present for all of us. Most Americans think it very important to be true to oneself that is, to be authenticand this cultural background value will be one of the materials that is available to us when we try to make sense of the value of lawyering. An account of why lawyers should act in ways that promote good aggregate consequences will need to explain the laws intrinsic value using the network of values that lawyers bring to their practicevalues that come both from the practice itself and from the other parts of lawyers lives and the rest of their culture. We cannot get to an account of intrinsic values in lawyering just by considering, in the abstract, what social interests might be served by lawyers actions. We will have to develop an account that is tied more closely to what lawyering is like for American lawyers in their specific practicewhat lawyering is like, in another phrase of Williamss, now and around here.197 B. Intrinsic Values in Legal Ethics Many legal ethicists attempt to ground their theories on accounts of intrinsic value. Although Wendels theory emphasizes the collective goods that flow from living under law, he also claims that lawyers should respect the law because respecting the law is a way of showing respect for persons. 198 Just as someone who cuts in front of a line shows disrespect for the people who have implicitly agreed to wait patiently, a lawyer who treats the law as a mere instrument shows disrespect for the people whose collective achievement it is. 199 David Luban, who offered a similar argument in Lawyers and Justice, emphasizes the contingency of this reason. For Luban, not all laws are collective
197 198 199

BERNARD WILLIAMS, IN THE BEGINNING WAS THE DEED 8 (2005). Wendel, supra note 29, at 114. Id. at 114-115.

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achievements worthy of respect. 200 Luban and Wendel agree, however, that lawyers sometimes show respect for others by respecting the law, even when that requires them to put aside their own convictions. In making these arguments, Luban and Wendel invoke the importance of respecting other peoplea perfectly ordinary moral valueand attempt to show how it is instantiated in the practice of lawyering. This way of approaching the problem is a way of taking the lawyers perspective. It recognizes that the reasons we offer citizens and lawyers to view law as intrinsically reasongiving must not just be facts about the law and its function; they must also be facts about the citizens and lawyers themselves. Markovits also offers an account of a possible intrinsic value in lawyering. (He ultimately concludes that it will not work.) His argument can serve as a useful illustration of the requirement that intrinsic value be stable in relation to the agents other values. Markovits proposes an interpretive reconstruction of the social practice of lawyering in which the primary value is what Markovits calls fidelity. 201 Fidelity is a disposition not just [to] prefer their clients interests over the interests of others but also [to] prefer their clients points of viewthat is, beliefs about what is true and fairover other points of view, including especially their own. 202 He explains that fidelity is analogous to the poetic sensibility that John Keats described as Negative Capability, that is, when a man is capable of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason. 203 Markovits argues that a lawyer should be analogously disposed to take her clients part and, steadfastly suppressing her own ego, to speak her clients mind. 204

200 201 202 203

Luban, supra note 76, at 46-47. Markovits, supra note 22, at 90. Id. at 92.

JOHN KEATS, THE SELECTED LETTERS OF JOHN KEATS 92 (Lionel Trilling ed. 1951)
204

Markovits, supra note 22, at 94.

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Does Markovitsian fidelity satisfy Williamss requirement that an intrinsic value be stable in relation to the agents other values? I will argue that it does not. It will be useful to look at the way negative capability makes sense for Keats, because the connections between that novel value and other, more familiar values form, for Keats, a systema system that is, in Williamss terms, stable. 205 It is worth looking briefly at the ways in which the concepts in that system interlock and support each other, because our goal is to construct a similarly coherent system of ideas about lawyering. Markovits has borrowed a phrase from Keats, but he has not taken the whole concept. I will argue that the virtue of negative capability in Keats is made stable by its connection to three other aspects of the practice of poetry as Keats understood it: the aspiration to represent reality faithfully; the lack of an aspiration to change the world depicted; and the aspiration to authenticity. Each of these values helps stabilize Keatsian negative capability, but none of them is available to lawyers in the way they were to Keats. First, Keatss aspiration to be negatively capable is made stable by its relation to poetic truthfulness. The sentence following the one in which Keats introduced the phrase negative capability concludes that with a great poet the sense of Beauty overcomes every other consideration, or rather obliterates all

205 Keatss letters sometimes seem inconsistent. While on the one hand he condemns irritable reaching after fact and explanation, he also writes quoting Wordsworththat extensive knowledge . . . helps to ease the Burden of the Mystery. Keats, supra note 203, at 125; see WILLIAM WORDSWORTH, Lines Written a Few Miles Above Tintern Abbey, LYRICAL BALLADS 201, 203 (1798). Remember, the irritable need to resolve inconsistency is part of what the Negative Capability letter is warning against. It would be worthwhile to explore the ways in which a system of values can be stable without being consistent. See A.R. Ammons, A Poem Is a Walk, in SET IN MOTION: ESSAYS, INTERVIEWS, & DIALOGUES 15-16 (1996) (I do not believe that rationality can exhaust the poem . . . . . Unlike the logical structure, the poem is an existence which can incorporate contradictions, inconsistencies, explanations and counter-explanations and still remain whole, unexhausted and inexhaustible . . .); id. at 14 (Only by accepting the uncertainty that is the whole can we free ourselves to the reconciliation that is the poem . . .).

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consideration. 206 Negative capability thus makes sense not just because of what it is in itself, but because of what it makes room for. Keats was influenced by the work of William Hazlitt, who had written of Shakespeare that [h]e was the least of an egotist that it was possible to be. He was nothing in himself; but he was all that others were, or that they could become. 207 Keats, echoing Hazlitt, wrote that the poetic character has as much delight in conceiving an Iago as an Imogen.208 But that delight is very unlawyerly. Poetic representation and lawyerly representation have different aims. Shakespeares representation of Iago shows him in the fullness of his evil. 209 A poet exercising negative capability does not aim to show the people he represents in the best possible light. A lawyer who represented Iago with Keatsian negative capability would portray for the court the full depth and horror of Iagos motiveless malignity. 210 A negatively capable lawyer who represented King Lear would be as merciless as Shakespeare in showing what a contemptible and selfish person Lear can be. 211
Keats, supra note 203, at 92. On negative capability as a way of coming into contact with beauty, see Walter Jackson Bate, Negative Capability, in ROMANTICISM AND CONSCIOUSNESS: ESSAYS IN CRITICISM 326 (Harold Bloom ed. 1970).
206 207 William Hazlitt, On Shakespeare and Milton, in BATE, CRITICISM: THE MAJOR TEXTS 307, 307 (enlarged ed. 1970). On Hazlitts influence on Keats, see David Bromwich, Negative Capability, in THE NEW PRINCETON ENCYCLOPEDIA OF POETRY AND POETICS 824, 825 (ed. Preminger & Brogan 1993). 208

Keats, supra note 203, at 152.

209 In Hazlitts words, a Shakespearean portrayal shows characters with their different concerns, passions, follies, vices, virtues, actions, and motives as well those that they knew, as those which they did not know, or acknowledge to themselves. Hazlitt, supra note 207, at 307.

The last Speech, the motive-hunting of motiveless Malignityhow awful! In itself fiendishwhile yet he was allowed to bear the divine image, too fiendish for his own steady View.A being next to Devilonly not quite Devil& this Shakespeare has attempted executedwithout disgust, without Scandal! Samuel Taylor Coleridge, Lectures 1808-1819, 2 On Literature 315.
210 211 Keats wrote in the Negative Capability letter that in King Lear we have unpleasantness without any momentous depth of speculation excited, in which to bury its repulsiveness. Keats, supra note 203, at 92.

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Lawyers are not supposed to let the truth shine through in this way. The second value that helps stabilize Keatsian negative capability is the value of what Trilling calls Keatss happy passivity, his ability to absorb and enjoy experience rather than trying to change the world he encounters.212 Keatsian poets do not aim to have a direct impact on the world, because the desire to change the world can affect ones ability to perceive it. As Trilling writes, Keatss capacity for pleasure serves his capacity for the apprehension of reality. 213 Keatss poet gets his identity out of the way so that truth and beauty can shine through, not because it is inherently good to be self-effacing. Nor can poetry aim to effect change in its listener, at least not in the way that legal writing aims to persuade its audience. As Keats wrote, [w]e hate poetry that has a palpable design on us. 214 For lawyers, effecting change is part of the joblawyerly speech always has a palpable design on us. But as Stephen Dunn writes, The poet distracted by the possibility of effecting change is looking too far ahead to be a trustworthy witness of whats in front of him/her. 215 So a good poem must be more interested in enacting or understanding the dynamics of any
Keatss happy passivity is displayed in a remarkable letter in which Keats reports what he was able to perceive when his mind was clear of ideas: let us not therefore go hurrying about and collecting honey, bee-like buzzing here and there impatiently from a knowledge of what is to be aimed at; but let us open our leaves like a flower and be passive and receptivebudding patiently under the eye of Apollo and taking hints from every noble insect that favors us with a visitsap will be given us for meat and dew for drink. I was led into these thoughts, my dear Reynolds, by the beauty of the morning operating on a sense of idlenessI have not read any Booksthe morning said I was rightI had no idea but of the morning . . . Keats, supra note 203, at 111-12. This passage is followed by a sonnet that repeats the line, O fret not after knowledgeI have none. Id. at 112. Elsewhere, Keats wrote, nothing startles me beyond the Moment. The setting sun will always set me to rights or if a Sparrow come before my Window I take part in its existence and pick about the Gravel. Id. at 90.
212 213 214

Trilling, Introduction, in Keats, supra note 203, at 15 and 17. Keats, supra note 203, at 108.

215 STEPHEN DUNN, The Good and Not So Good, in WALKING LIGHT: MEMOIRS AND ESSAYS ON POETRY 35 (2001).

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human situation that it is in effecting change.216 This aspirationthe value of Keatsian happy passivityhelps stabilize negative capability, but it is not available to lawyers. The third value that stabilizes Keatsian negative capability is the value of authenticity. 217 Keats wrote, if Poetry comes not as naturally as the Leaves to a tree it had better not come at all. 218 Legal briefs should, perhaps, sound natural, but lawyers do not suspend briefing schedules to await the onset of sincere feeling. Keats claimed to care little for his audience, proclaiming that he cared not at all what the public thought of his work: among Multitudes of MenI have no feel of stooping. 219 Keatsian negative capability involves self-effacement of a certain kind, but not the kind of self-effacement that can result in saying something one believes to be false. As Louise Gluck writes, Keats refused to value what he did not believe, and he did not believe what he could not feel. . . . It follows that Keatss poems feel immediate, personal, exposed; they sound, in other words, exactly like honesty. 220 This kind of Keatsian authenticitythe aspiration to be true to himself and dismissive of his audienceis inseparable from negative capability; it is what makes negative capability a fundamentally honest disposition. But lawyers cannot disregard their audience in favor of their true feelings. If lawyerly negative
216 217

Id. Keats, supra note 203 at 108.

218 Id. at 113. He also wrote that he felt could be himself only when he was composing: I suffer greatly by going into parties where from the rules of society and a natural pride I am obliged to smother my Spirit and look like an Idiotbecause I feel my impulses given way to would too much amaze themI live under an everlasting restraintnever relieved except when I am composingso I will write away. Id. at 174-175 (emphasis added). 219

Id. at 118.

220 LOUISE GLCK, Against Sincerity, in PROOFS & THEORIES 33, 42 (1994). Keatsian honesty could sometimes be socially awkward. According to Trilling, There came a time when he found that he was embarrassing himself and annoying his friends by replying not to their spoken remarks but to their unspoken intentions. Trilling, in Keats, supra note 203, at 11. Lawyers are not supposed to address themselves to clients (or judges) secret heart of hearts.

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capability is to achieve honesty, it must do so through a different route. Negative capability was stable in relation to Keatss other values, but it is difficult to see how it could be stable in relation to the values of American lawyers. Negative capability is a virtue for Keats because of the other aspirations to which it related, his aspirations to be faithful to reality, happily passive, and true to himself. As Trilling notes, the notion of negative capability does not refer to literature at all, it refers to a certain way of dealing with life. 221 The problem for us, too, is with negative capability as a way of living: It is difficult to imagine a lawyerly life in which Keatsian negative capability could be a stable value, because the values that stabilize Keatsian negative capability are not available to lawyers in the way they were available to Keats. If Keatss conception of negative capability cannot serve lawyers, what about some other conception of negative capability? It is not necessarily damning to point out that Markovitss conception of negative capability is un-Keatsian, because the purpose of legal ethics theory is not to satisfy Keats. It is perfectly possible for an intrinsic value to make sense to American lawyers even if Keats would have been baffled by it. But it is striking that Markovits does not go much beyond the Keats analogy in his attempt to explain how lawyers can incorporate his value of fidelity into their lives. Wendel reasonably wonders whether the self-effacing, opinionless transparency of the hired gun is something any of us could see as admirable. 222 And it is difficult to imagine Markovitsian self-effacement fitting well into the lives of most lawyers because so many of the lawyers distinctive jobs involve the exercise of judgment. As many writers have pointed out, the only way a lawyer can know what arguments will persuade a judge is to imagine herself a judgeto exercise, if only hypothetically, her own judgment about the clients position.223
221 222 223

Trilling, in Keats, supra note 203, at 28. Id. at 165-66. See, e.g., LON L. FULLER, THE LAW IN QUEST OF ITSELF 93-95 (1966, repr.

1999).

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Moreover, as Wendel notes, many major scandals have involved lawyers who set aside their ethical judgment. 224 Lawyers are often required to be firm about their ethical judgments in the face of strong pressure to compromise them. It is perhaps not impossible to imagine such firmness alternating with extreme deference to the clients views. But at first glance, the idea of a lawyer who internalized Markovitss ideals displays more tension than coherence. Markovits gives us no account of the values that might stabilize lawyerly negative capability. He discusses political legitimacy at length, but that is a desirable aggregate consequence, not an ideal to which one can individually aspire. Without such an account, the question of whether lawyerly negative capability can be understood as a virtue remains open. C. Where Should We Look for Stabilizing Values? The last section argued that intrinsic value must be understood in terms of the agents other values. 225 This section will consider how we might go about searching for values that might stabilize the intrinsic values of lawyering. Those values come from a number of different sources. First, there are universal values that are values for all people, whatever their context. We might say, for example, that respect for life is an important universal value, which is a way of saying we all have reason to respect life. Second, there are cultural values, which apply to us in virtue of our cultural background. For example, we might say that authenticity is an American value, which is to say that
224

Wendel, supra note 29, at 167.

225 When we talk about the agents other values, we are talking about the things that the agent recognizes as intrinsically reason-giving. We are talking, in other words, about the lawyers perspective. An individuals perspective includes everything that that person recognizes as a practical reasonwhich is to say, everything that that person recognizes as having value. In fact, some philosophers argue that to say something is valuable is just to say that we have reasons to promote it or respect it. See Scanlon, supra note 33, at 95.

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Americans generally think we have reason to act in ways that are true to ourselves. Third, there are values specific to the social practice of lawyering, like the value of crisp speech and writing that is sometimes invoked by law professors. These values give lawyersbut not necessarily non-lawyersreason to speak and write crisply. And, fourth, there are values that flow from more idiosyncratic personal commitments. These four sources of value each have the potential to provide stabilizing values for lawyers. But the diversity of sources of value presents a challenge to the theorist. Where should we begin? Many theorists try to justify lawyering in terms of a single value, such as justice, 226 human dignity, 227 democratic legitimacy, 228 legality, 229 or autonomy. 230 They try to show how the practice of lawyering relates to that value. This approach is problematic. We have no reason to assume that any single value will stabilize the practice of lawyering. It may be that we can arrive at a stable sense of the intrinsic value of lawyering only by relating it to a set or system of values. If we start with the assumption that we are looking for only a single stabilizing value, we risk overlooking more complex possibilities.
226 Simon, supra note 6, at 9 (the lawyer should take such actions as, considering the relevant circumstances of the particular case, seem likely to promote justice).

Luban, Lawyers as Upholders of Human Dignity, supra note 86, at 66 (what makes the practice of law worthwhile is upholding human dignity . . . [A]dversarial excesses are wrong precisely when they assault human dignity instead of upholding it.); see also MONROE H. FREEDMAN, LAWYERS ETHICS IN AN ADVERSARY SYSTEM 2 (1975) (arguing that lawyers obligations are essential to maintaining human dignity).
227 228 229

Markovits, supra note 22, at 12.

Wendel, supra note 29, at 88-89 (Democratic equality is therefore the most important value in politics. . . . Thus, the fundamental ethical obligation of lawyers is fidelity to law).
230 Pepper, supra note 193, at 617 (The lawyer is the means to first-class citizenship, to meaningful autonomy, for the client).

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It might be, for example, that the value of lawyering is stable in relation to both truthfulness and loyalty. Lawyers aim to be loyal to their clients and to be truthful with the court. We cant understand the practice of lawyering exclusively in terms of loyalty, because lawyers must sometimes act against their clients interests by disclosing adverse facts or points of law to the court. But we also cant understand lawyering exclusively in terms of truthfulness, because lawyers are sometimes supposed to advocate their clients position rather than the position lawyers think is most true to the facts or the law. The value of lawyering cant be stabilized exclusively in terms of loyalty or exclusively in terms of truthfulness. But that does not eliminate the possibility of stabilizing it in terms of both loyalty and truthfulness. One way of being stable is to be stable in tension. As the discussion above explained, Keats made his value of negative capability stable by relating it to two values that are sometimes contradictorythe value of suppressing ones identity (in order to perceive reality clearly) and the value of being true to oneself. We may be able to develop a conception of lawyering that is similarly stable in spite of tension. An account of this kind might say, for example, that lawyers are both loyal and truthful, and that good lawyers are defined by their skill at navigating this tension. If we begin from a single value, we rule out such an account from the beginning. That would be unfortunate. If we do not begin by choosing a single value and trying to justify lawyering by its relationship to that value, we are faced with the possibility of beginning from multiple values all at once. It now seems even more difficult to find a rational way of choosing which values to begin with. It would be unwise to try to dream up a system of values from scratch. It would be better to find a pre-existing system of values from which we might begin. We might find such systems in three places: in fictional characters; in ourselves and our own systems of values; and in the lawyers we meet in the real world particularly the real world as studied by sociologists and other social scientists. I will consider briefly what it might mean to look for stabilizing values in each of these three places.

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First, we might begin with characters in fiction. Stories like To Kill a Mockingbird give us relatively full portraits of lawyers idealized lawyers, in many cases, but lawyers we can imagine in detail and aspire to emulate. 231 Martha Nussbaum argues at length that fiction can be useful for ethical inquiry, because of what she calls good fictions way of making the reader a participant and a friend. 232 The advantages of discussing fictional characters, rather than real people, is that we will not offend anyone by criticizing them, and that the number of people who can get to know a fictional character intimately is unlimited. All readersall ethicistscan share that knowledge equally, which greatly helps with collective ethical deliberation. And although we may be unable to diagram the value-system of Atticus Finch or Philip Marlowe, we can get a grounded and thorough sense of what matters to them from the stories we read. A second alternative is to begin with our own worldview. James Boyd Whites The Legal Imagination addresses law students in the second-person voice, and thus invites an answer from the first-personal perspective. It asks students to search their own lives for the values that might help them understand what is at stake in lawyering. In this sense, The Legal Imagination is a work on legal ethics; it asks us to reflect on our values and how we might fit the practice of lawyering particularly its languageinto them. 233 A third possibility is to look at studies of practicing lawyersreal peopleto see what they understand to be the intrinsic values at which their practice aims. Reality has obvious advantages over fiction. Reality, unlike fiction, is not bound to any criteria of artistic success. It doesnt have to make sense. Studies of real lawyers values give us a way of testing our
231 232

See Shaffer, supra note 39, at 5-12. Nussbaum, supra note 159, at 46.

233 As White wrote elsewhere, his subject was not the ethical quality of the majority of those who actually engage in the practice of law (though that is an interesting question) but the ethical possibilities of the profession. White, supra note 149, at 233. This is always the most important question from the practitioners perspective, and rarely the most important question from the policy-makers.

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theoretical accounts of legal ethics against the lay theories that real lawyers construct. In some cases, the intrinsic values that real lawyers find in their practice may be radically different from the values that legal ethics theories focus on. As discussed above, many theorists claim that lawyers actions indirectly promote good aggregate consequences. For example, criminal defense lawyers must aim at the protection of the innocent by defending the guilty. 234 It is important to ask how that fact figures in the worldview of actual criminal defense lawyers. If defending the guilty is merely an unfortunate necessity the only way to effectively guarantee the safety of the innocent then we might expect criminal defense lawyers to be mildly unhappy about having to do it. In fact, Lisa McIntyre finds that many defense lawyers greatly prefer defending the guilty to defending the innocent. Not surprisingly, the pressure on a defense lawyer when the client is innocent is intense, and if a guilty person is ultimately convicted, there is less for the lawyer to feel bad about. 235 We might wonder why there is anything at all for a defense lawyer to feel bad about if a guilty person is convicted. Most theoretical accounts of criminal defense lawyering emphasize that they protect the innocent, or that they protect the rights of all defendants. If the defense lawyer protects the rights of the guilty client, why is that not a success? The value that many criminal defense lawyers find in their day to day practice, according to McIntyre, has little to do with the protection of the innocent or putting the state to its proof. Rather, the intrinsic value at which they aim is the simple good of winning. As one lawyer told McIntyre:

See WILLIAM BLACKSTONE, 2 COMMENTARIES ON THE LAW OF ENGLAND 2596 (ed. William Carey Jones 1916) (The law holds that it is better that ten guilty persons escape than that one innocent suffer.); see Alexander Volokh, n Guilty Men, 146 U. PA. L. REV. 173 (1997).
234 235 Lisa J. McIntyre, The Public Defender, The Practice of Law in the Shadows of Repute, in LAWYERS: A CRITICAL READER 269-70 (ed. Richard L. Abel 1997).

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I want to win. Ah, idealistically Ive talked about why Im a public defender, about how I want to keep the state on the straight and narrow, and I could go home and say, Well, I forced the state to prove their case beyond a reasonable doubt, but, ah, I still, that isnt what I really feel when I lose. What I really feel is just that I lost this case and I wanted to win this case. 236

The value of winning does not figure in any theory of legal ethics of which I am aware. But it seems to figure importantly in the value-system of McIntyres criminal lawyers. Rather than trying to reconstruct the values we distill from lawyering law, as Markovits does, it might be interesting to try to reconstruct the value of winning to see whether it is stable. We might ask, in other words, when is it good to want to win? The answer will depend on what background values relate to and stabilize the value of winning in the life of the criminal defense lawyer. The same question arises in civil adversary advocacy. An often-cited justification for civil adversary advocacy is that it helps courts reach the truth by ensuring that the best arguments for both sides are heard. If this desirable aggregate consequence is what justifies adversary advocacy, then we might expect to find it playing an important role of lawyers understanding of their work. But few lawyers in civil practice see their role as devils advocate. They want to win. It is unusual to hear a lawyer say she is satisfied with the way her case came out because she presented the best version of her case and lost. They feel disappointed when they lose. It may be a consolation that they made the best version of their casebut it is a consolation. That is, it is a small satisfaction that goes with a larger disappointment. Again, it would be useful for legal ethicists to investigate whether this sense of value can be made stable. It is difficult, maybe impossible, to internalize an indirect strategy as the principal justification of ones day-to-day work. It is difficult to understand ones work in terms of its contribution to justice if ones daily actions often promote injustice. Whenever indirect strategies for promoting good aggregate consequences are
236

Quoted in McIntyre, supra note 235, at 269.

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used, we should expect to find complex strategies for maintaining a sense of intrinsic value. When there is a need for complex strategies, there is also a need for careful reflection and deliberation. Lawyers are not waiting for legal ethicists to tell them what is valuable in their practice. They construct their own answers, however informal or under-systematized they are. They are diverse and idiosyncratic. Some of those answers are more stable than others. This is where legal ethics theory can be useful. It can help articulate the values that lawyers find in their practice, and then step back to see if those answers can be made stable in relation to the other values that are available to lawyers. Given the extent to which legal ethics makes use of indirect strategies, the project of stabilizing a sense of intrinsic value in lawyering presents the theorist with a lively challenge. CONCLUSION This article began by describing the difference between two perspectives on legal ethics, those of the policy-maker and the practitioner. It argued that the concept of a perspectiveand the structure of legal ethics theory more generallycan best be understood in terms of practical reasoning. To take a perspective on a practical choice is to focus on some categories of practical reasons rather than others. Applying this understanding of perspectives, Part III argued that the policy-makers perspective and the practitioners perspective look differently at the aggregate consequences of lawyers actions. Policy-makers are necessarily concerned with the effects of what lawyers collectively do. In other words, the prospect of good aggregate consequences is always a good reason for a policy-makers choice. But practitioners are only hypothetically concerned with aggregate consequenceswith the question of what would happen if everyone did as they choose to do. The fact that good consequences would follow hypotheticallyif lawyers generally acted in a certain way is not necessarily a reason for any one practitioner to act in that way. I described this difference as a gap between aggregate

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consequences and practical reasoning. It is a gap between the statement good consequences would follow if lawyers collectively did X and the conclusion that I, the practitioner, have a good reason to do X. The last part of this article then looked at how the gap might be bridged. People often perform the kinds of acts that, in the aggregate, promote good consequences, even when their individual actions do not themselves contribute to those consequences. Many individuals choose to vote in American presidential elections even though they do not live in swing states. They do so because they see these actions as intrinsically valuablethat is, good without regard to their consequences. An important question for legal ethics is how practitioners come to see intrinsic value in actions that promote good aggregate consequences. I argued that we should adopt Bernard Williamss two criteria for intrinsic value. First, the action or disposition should promote good aggregate consequences. Second, the value the agent sees in the action or disposition should be stable in relation to the agents other values. To understand what has intrinsic value in the practice of lawyering, it will be necessary to begin from an account of the agents other values. The intrinsic value of lawyering, in this sense, can only be understood from the lawyers perspective. As discussed above, writers like Woolley and Markovits have debated whether legal ethicists should take the lawyers perspective or the policy-makers perspective. This article has argued that the lawyers perspective is worth taking. It is a mistake to think that the lawyers perspective is merely a selfinterested one. The lawyers perspective is the perspective from which an account of intrinsic value must be developed. And without a sense of intrinsic value, there is often no reason for lawyers to promote the aggregate consequences that legal ethicists invoke when they take the policy-makers perspective. That is why the lawyers perspective is worth taking. This article argued that the lawyers perspective is not just a self-interested one. It should be noted, however, that if we manage to develop an account of the intrinsic value of lawyering,

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as I have suggested we should aim to do, we may in the process offer lawyers an answer to the self-interested concerns which some writers have taken for the whole content of the lawyers perspective. If an account of intrinsic value necessarily involves an account of an admirable and appealing way of life that seems plausible to lawyers now and around here, then a successful account of intrinsic value in lawyering will give lawyers more than a reason to see lawyering as morally justified. It will give them reason to think that what they do is valuable in itself. In this way, it will satisfyalmost accidentallythe self-directed concerns that some writers take for the whole content of the lawyers perspective. On our way to an account of the ethical value in lawyering, we will have given lawyers reason to be happy.