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Luban on Wooley & Wendell on Aretaic Approaches to Legal Ethics

By Lawrence Solum

David J. Luban (Georgetown University Law Center) has posted How Must a Lawyer Be? A Response to Woolley and Wendel (Georgetown Journal of Legal Ethics, Forthcoming) on SSRN. Here is the abstract:

In Legal Ethics and Moral Character, Georgetown Journal of Legal Ethics, Vol. 23, Alice Woolley and W. Bradley Wendel argue that theories of legal ethics may be evaluated by examining the kind of person a lawyer must be to conform to the normative demands of the theory. In their words, theories of legal ethics musts answer questions not only of what a lawyer must do, but how a lawyer must be. Woolley and Wendel examine three theories of legal ethics - those of Charles Fried, William Simon, and myself - and conclude that the theories they discuss impose demands on agency that are not realistic, functional, or desirable. 

On behalf of Simon?s theory and my own - both of which are "high commitment" accounts of legal ethics - I respond to all three criticisms. Neither theory is unrealistic in the sense of requiring impossible things of lawyers. If the charge of unrealism means only that the theory sometimes requires lawyers to take difficult or uncomfortable stances, I argue that this counts as a legitimate criticism only if the theory?s prescriptions are doubtful on independent moral grounds. To the criticism that high-commitment ethical theories are not functional, I observe that Woolley and Wendel identify functionality with fitting comfortably into law firm culture. In response, I suggest that if ethical conduct places a lawyer at odds with law firm culture that should count as a criticism of the law firm rather than the lawyer?s theory of ethics; in any case, Woolley and Wendel have wrongly presupposed that the high-commitment lawyer is working in a setting of low-commitment lawyers rather than other high commitment lawyers. Finally, I argue that Woolley and Wendel are incorrect to believe that the character traits required for high-commitment legal practice are undesirable because they would lead lawyers to buck the system when they should not do so.

And here are some additional comments from Patrick O'Donnell.

Wooley & Wendell, Luban, and O'Donnell are all highly recommended.

Full post as published by Legal Theory Blog on June 10, 2010 (boomark / email).

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