Washington University Law Review Volume 78 Issue 1 January 2000 Value Pluralism in Legal Ethics W. Bradley Wendel Washington and Lee University Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Jurisprudence Commons, Legal Ethics and Professional Responsibility Commons, and the Legal Profession Commons Recommended Citation W. Bradley Wendel, Value Pluralism in Legal Ethics, 78 WASH. U. L. Q. 113 (2000). Available at: https://openscholarship.wustl.edu/law_lawreview/vol78/iss1/3 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. VALUE PLURALISM IN LEGAL ETHICS * W. BRADLEY WENDEL I. INTRODUCTION ......................................................................................... 114 II. PROBLEM CASES...................................................................................... 120 Problem #1—“Hardball” Litigation........................................... 121 Problem #2—Ignore the Bad Facts and They’ll Go Away.......... 126 Problem #3—Speaking Calumny to Power................................. 129 III. INCOMPARABLE VALUES ....................................................................... 132 A. The Claim of Incomparability...................................................... 141 B. Covering Values........................................................................... 152 C. Must We Mean What We Say About Incomparability?............... 163 D. Incommensurability of Worldviews, Paradigms, or Forms of Life ............................................................................................. 166 IV. COMMUNITY NORMS AND TRADITIONS AS A RESOLUTION OF INCOMPARABILITY PROBLEMS ............................................................ 173 A. The Role of Social Practices in Ethical Reasoning..................... 173 B. Plural Practices ........................................................................... 179 1. The Rebellious Lawyer ........................................................ 185 2. The Establishment Lawyer .................................................. 191 V. NARRATIVE UNITY.................................................................................. 198 A. A Limited Role for Personal Values in Legal Ethics................... 198 B. Objections .................................................................................... 203 1. Integrity Does Not Guarantee Goodness ............................ 203 2. Compartmentalization ......................................................... 205 3. Antirealism, Romanticism, and Relativism.......................... 207 VI. CONCLUSION........................................................................................ 211 * Assistant Professor of Law, Washington and Lee University. This paper was written in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty of Law, Columbia University. Special thanks to Robert Audi, Ruth Chang, Mark Drumbl, Kent Greenawalt, Stephen Kalish, William Sage, Peter Strauss, Barry Sullivan, and Amelia Uelmen for their comments and perceptive suggestions. I am also grateful to the participants in the interdisciplinary seminar on Moral Theory and its Practical Applications, sponsored by the Center for the Teaching and Study of Applied Ethics, at the University of Nebraska ? Lincoln, and the Columbia Law School workshop for doctoral candidates, where versions of this paper were presented. Finally, thanks are due to the Francis Lewis Law Center at Washington and Lee University for providing generous research support. These acknowledgements, of course, should not be taken to imply agreement with my arguments. 113 Washington University Open Scholarship p113 Wendel.doc 09/15/00 4:56 PM 114 WASHINGTON UNIVERSITY LAW QUARTERLY [VOL. 78:113 I. INTRODUCTION Lawyers serve many masters. They are fiduciaries with respect to their clients, but at the same time are called upon to serve as “officers of the court.” They are charged with advancing their clients’ causes, regardless of whether those aims are consonant with social justice, but they are also duty- bound to avoid inflicting unjustified harm on third parties, a standard which presupposes that lawyers must develop and respect some vision of the public good. Some recent criticism, especially from feminist legal theorists, also calls upon lawyers to recognize the impact of their activity on the network of human relationships that makes meaningful social life possible, to avoid disrupting settled relationships, and to promote the flourishing of interpersonal connections. At the same time, respecting one party’s interest in a dispute or transaction frequently requires devaluing the interests of others, treating non-clients as less than full persons. Because these plural, conflicting obligations derive from the social function of the lawyer, from “legal norms and principles that form fundamental underlying precepts for our polity— background norms that contribute to and result from the moral development of our political community”1—legal ethics should be understood functionally, as a question of how to channel lawyers’ behavior in socially desirable ways.2 This article is aimed at understanding what happens when these professional duties conflict. Many commentators on legal ethics start with one value—loyalty to one’s client, social justice, fidelity to a set of legal norms, or, most recently, interpersonal considerations such as care, mercy, and connectedness—and seek to establish the primacy of that value in a lawyer’s moral analysis. Arguments of this sort can be quite sophisticated. For example, a frequently encountered contention is that social justice and partiality to one’s client are not incompatible, because justice in the long run requires lawyers who will represent their clients’ interests zealously. Of course, opposing arguments can be constructed—maintaining, for example, that a client is entitled only to a measure of loyalty that is compatible with 1. William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L. REV. 1007, 1008 (1989). 2. See, e.g., JACK L. SAMMONS, JR., LAWYER PROFESSIONALISM (1988); Robert L. Nelson & David M. Trubek, Arenas of Professionalism: The Professional Ideologies of Lawyers in Context, in LAWYERS’ IDEALS/LAWYERS’ PRACTICES: TRANSFORMATIONS IN THE AMERICAN LEGAL PROFESSION 180-81 (Robert L. Nelson et al. eds., 1992); William H. Simon, Babbitt v. Brandeis: The Decline of the Professional Ideal, 37 STAN. L. REV. 565, 568 (1985);. The roots of the functional concept of professional ethics can be found in Durkheim’s hypothesis that occupational groups filled the normative void left by the breakdown of religious authority. See EMILE DURKHEIM, PROFESSIONAL ETHICS AND CIVIL MORALS (Cornelia Brookfield trans., 1958). https://openscholarship.wustl.edu/law_lawreview/vol78/iss1/3 p113 Wendel.doc 09/15/00 4:56 PM 2000] VALUE PLURALISM IN LEGAL ETHICS 115 social justice, and no more.3 What many of these arguments have in common is evaluative monism: the belief that a single, impersonally justified value can serve as a polestar for any moral agent’s deliberation about her ethical responsibilities. Monism requires the analysis of apparently different values in terms of some comparative value, or higher-order conceptual category that permits the ranking of options in relation to one another in an impersonal manner, i.e., without reference to the circumstances of a particular agent.4 Other seemingly diverse values may then be understood as instantiations of the single relevant value, or the single master value can serve as a criterion for ranking or ordering the lower-order values. Monism has long been the dominant assumption of legal ethics, and the organized bar’s statements on the professional responsibilities of lawyers frequently follow this approach, strenuously resisting the notion that the duties incumbent upon lawyers can actually come into irreconcilable conflict. The preamble to the Model Rules of Professional Conduct states: A lawyer’s responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious. Thus, when an opposing party is well represented, a lawyer can be a zealous advocate on behalf of a client and at the same time assume that justice is being done.5 Courts and commentators also attempt to impose priority rules where they perceive a conflict between professional values. For example, one federal appellate court noted the obvious fact that a lawyer has a fiduciary obligation to her client, but claimed nevertheless that “the lawyer’s duties to maintain the confidences of a client and advocate vigorously are trumped ultimately by a duty to guard against the corruption that justice will be dispensed on an act of deceit.”6 In a similar vein, one scholar has extracted one “central” principle from reported cases, disciplinary rules, and stories of the legal profession: “[T]he lawyer’s obligation to the client is subordinate to the lawyer’s primary obligation to the law.”7 If these statements have a utopian 3. See, e.g., WILLIAM H. SIMON, THE PRACTICE OF JUSTICE (1998). 4. See ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS 117-40 (1993); James Griffin, Incommensurability: What’s