Ethics

[edited]  In the comments to the post on Justice Scalia's recent description of legal ethics, Brad, Patrick O'Donnell and others have touched on the degree to which legal "ethics" is or is not a useful term.  I thought I'd offer a shorthand argument on why ?legal ethics? is still a useful term.

First, it?s an historical term with a fairly firm meaning to most lawyers, and hence there?s no need to abandon it.

Second, I don?t see much actual confusion in a way that hurts lawyers.  Certainly, I don?t credit Justice Scalia?s throw-away jibe as proof.  Indeed, he has his own personal reasons for spinning legal ethics as subjective (i.e., his take on the duck hunting incident).  But I do concede that if in fact there is a lot of harmful confusion arising from the use of the term, then we ought to think about tossing it.  I just don?t see it.  And I'm certainly not arguing against the usefulness of the term "law of lawyering," which has been quite useful in organizing the field, reminding lawyers and judges that there's black letter law on these issues, etc.

Third, the legal ethics rules really do deal with the kinds of topics that we normally associate with ethics: loyalty/disloyalty; lying/candor; self-interest/fealty to others, etc.  The ?law of real estate leases? isn?t like that.  But the ?law of lawyering? is.  It's elbow deep in the topics one associates with ethics.

Fourth, notice that people like Wasserstrom, Gerald Dworkin, David Luban, and even our own Brad Wendel and Alice Woolley (not to mention our commenter extraorinaire Patrick O'Donnell), to name just a few, have special insights about the ethical justifications for lawyering that they might not have about, say, the law of retail commerce.  Because lawyering involves justice, agency, power, and coercion, it?s especially fertile ground for ethical reflection by persons versed in what Brad calls ?Ethics,? and you will find some of that reflection in the Preamble, Scope, and Rules.  You will also find it, for example, in the debates about the OLC torture memos.  The reason they have such insights, it seems to me, is because legal ethics is so closely involved with ethics.

None of these arguments is meant to detract from the usefulness of terms like ?law of lawyering,? or ?risk management,? or ?compliance,? or ?professional responsibility??each of which has some useful nuance or connotation.  It?s just an argument that ?legal ethics? is still a useful term.  And I concede that if by "ethics" we mean an all-things-considered, open-ended discussion about what one ought to do, then the Model Rules don't fit that definition.

I'm not too obsessed over this debate, as I don't find it to be too important.  So I'm just offering a qualified defense of the term as still being useful at least as of today.