As an alternative to the standard conception, Simon would have lawyers make contextual, discretionary judgements about justice. They ‘should take those actions that, considering the relevant circumstances of the case, seem likely to promote justice’.12 Here, and in line with Dworkin,13 ‘justice’ is a synonym for ‘legal merit’, with lawyers analysing the law in the light of fundamental legal values and principles to arrive at substantively just outcomes. Simon’s preference for legal merits-based reasoning (over a lawyer who uses her own morals) is founded on the idea that lawyers, being lawyers, have the necessary knowledge and skills to problematise legal ethics issues in terms of competing legal values (and do not have any special morality that makes them any better able than anyone else to approach ethical issues in terms of morals). Luban disagrees, and instead suggests that common morality can trump the professional role in certain circumstances. He argues that ‘no form of reasoning, artificial or not, can bear california-business-lawyer-corporate-lawyer the burden of discerning right from wrong in particular cases’,14 and that ‘some laws are morally unacceptable under any interpretation that does not do violence to the text’.15 We are of the view that Simon’s approach may reify legal reasoning and being inducted into the law, into learning to ‘think like a lawyer’. For example, it assumes that lawyers, through time and experience, ‘correctly’ learn legal reasoning and how to arrive at ‘correct’ decisions relatively unproblematically. Such also assumes that there is a ‘correct’ view of law.
Empirical data would tend to suggest that while there is a distinct logic of practice to ‘legal’ reasoning, it nevertheless remains a cultural practice and, as such, is informed by the wider social context. For example, criminal law lawyers have been shown repeatedly to be informed by their cultural context in ways that put the ‘workgroup’ (such as magistrates, other court staff with whom they regularly interact, and other lawyers) before their clients.16 Simon’s perspective therefore downplays the ways in which power relations shape the way that law is created, interpreted and used, and so fails to see the inherently political and contingent nature of ‘legal reasoning’.The moral philosophy literature on lawyers’ ethics is vast. For present purposes we need only to offer up a snapshot such that, in our later review of what our interviewees said to us, we can map their responses onto some of the relevant california-business-lawyer-corporate-lawyer key debates. For the moral philosophers, tensions exist between the ‘standard conception’ of lawyer’s ethics (in which lawyers are seen as owing ‘special duties to the clients that allow and perhaps even require conduct that would otherwise be morally reprehensible’),6 and other conceptions based on notions of ‘justice’ or morality.
The standard conception sees lawyers do all that is permissible for their clients within the bounds of the law. At the core of the ‘standard conception’ (cloven to to various degrees by different scholars) are the value-trinity of: (1) neutrality (it is not for the lawyer to be the judge of their client); (2) partisanship (the lawyer can or may do all that they can to achieve the client’s objectives); and (3) non-accountability (the lawyer is not responsible for the client’s decisions).7 These three principles form an important part of our discussion below. Some of those who take the ‘standard conception’ approach argue that we live in a pluralistic society based on competing notions of the public good, that the institutions of law are designed to mediate between these diverse ranges of views, and that it is not for lawyers to determine ‘what we will do as a community, what rights we will allocate and to whom’.8 Others, who take the same approach, base their arguments on the lawyer as a technical mechanic who should respect the autonomy of their client,9 or on the idea of the ‘civil obedience’ of a lawyer who obeys the law (including professional obligations to a client) even when it conflicts with her own morals.10The standard conception has many critics. One of the core objections lies in the fact thatThe law does not provide some fixed point of reference but can be adapted by clever lawyers to their clients’ needs. Rather than replacing client interests with legal entitlements, lawyers just obscure the rent-seeking process with a rhetorical façade.11