Justifying principles of professional ethics

Abstract

Can a good lawyer be a good person? In a classic 1976 paper, Charles Fried asked whether a good lawyer can be a good person. By this he meant to assert that principles of professional ethics – whether embodied in codes of professional conduct or propagated as informal norms through professional socialization and folklore – stand in need of justification in moral terms. A principle of professional ethics, such as the duty of confidentiality or the norm of zealous representation at trial, has to be shown to have the appropriate kind of connection with ordinary moral considerations. Otherwise, people will quite properly conclude that lawyers are a nasty bunch, deserving of moral condemnation. Of course, public criticism of the legal profession and lawyer jokes have been around as long as there have been lawyers. Lawyers therefore have many stock answers to the criticism they encounter, many of which were considered in a preliminary and impressionistic way in Chapter 1. The task of this chapter is to start to make these defenses more rigorous by examining the structure of some of the best known arguments offered by lawyers and scholars to show that the moral criticism they receive is unwarranted. Some of these arguments conclude that the principles of professional ethics by which lawyers practice are morally justified, at least for the most part. Others reach the very different conclusion that significant aspects of what practicing lawyers do fail the test of moral justification. To evaluate these contending positions, it will be helpful to look at how the arguments proceed, step by step. Before doing that, though, we should first consider a more general theoretical approach to the structure of ethical arguments, the method of seeking reflective equilibrium.