1 Pepper, Stephen L., The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 A.B.F. Res. J 613.CrossRefGoogle Scholar

2 Pepper at 620.Google Scholar

3 W. Herndon & J. Weik, 2 Herndon's Lincoln 345n. (Chicago: Belford, Clarke & Co., 1899).Google Scholar

4 Pepper at 634.Google Scholar

5 See Fried, , The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060, 1073 (1976); Donagan, Justifying Legal Practice in the Adversary System, in D. Luban, ed., The Good Lawyer: Lawyers' Roles and Lawyers' Ethics 128–33 (Totowa, N.J.: Rowman & Al-lanheld, 1983).Google Scholar

6 Dauer & Left, Correspondence: The Lawyer as Friend, 86 Yale L.J. 573, 577–78 (1977); Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29, 108–9; Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U.L. Rev. 63 (1980).Google Scholar

7 Pepper at 617.Google Scholar

8 Pepper at 617.Google Scholar

9 Pepper at 617.Google Scholar

10 Pepper at 617. I have paraphrased Pepper's use of premise 3 somewhat. He regards it as a premise concerning the role of access to law in realizing individual autonomy, a fact that implies that access to lawyers is essential. But phrased that way it overlaps with premise 1 in a somewhat confusing fashion: premise 1 says roughly that law is intended to be one way to increase autonomy-one sufficient condition for increasing autonomy-while premise 3 says that law will be a necessary condition for increasing autonomy.Google Scholar

11 Pepper at 617.Google Scholar

12 Pepper at 634.Google Scholar

13 I'm not sure what force Pepper intends by calling it a “social” good. To be a social good is not quite the same as to be a moral good, since social goods-things that are good for a society-can be morally unacceptable. (Example: It was good for Spanish society that the conquistadores plundered the Inca Empire, but it was also immoral. “What the conquistadores did was socially good” is true, but so is “what the conquistadores did was immoral.”) I shall assume that Pepper means “moral good,” not “social good.”Google Scholar

14 Pepper analogizes using the law to driving a car at 623–24. It may be objected that armed robbery is illegal, so my analogy begs the question. In that case, you may supply your own example of something that is immoral but not illegal. But in any case, the point of Pepper's analogy is that lawyers, knowing how to manipulate the law, can help people get away with things that would otherwise be (found to be) illegal; so the analogy in the text is a good one.Google Scholar

15 Pepper at 617.Google Scholar

16 Pepper at 618.Google Scholar

17 Pepper at 617.Google Scholar

18 Pepper at 618.Google Scholar

19 Pepper at 617.Google Scholar

20 Id.Google Scholar

21 This argument is made in A. Goldman, The Moral Foundations of Professional Ethics 128–30 (Totowa, N.J.: Rowman & Littlefield, 1981).Google Scholar

22 Often the agent knows in advance that this will be so, and therefore abandons the scheme without even giving it serious consideration. The agent may then believe that he had not really contemplated the scheme, just had it cross his mind for a moment-and in a sense he is right. But in another sense, this fact was itself a product of informal obstacles posed by other people.Google Scholar

23 Pepper at 634–35.Google Scholar

24 Pepper's example, at 618, drawn from Wasserstrom, Lawyers as Professionals: Some Moral Problems, 5 Hum. Rts. 1, 7 (1975).Google Scholar

25 Pepper at 619.Google Scholar

26 Pepper at 616.Google Scholar

27 Id.Google Scholar

28 This argument needs one qualification, which does not affect it in the present context. Before one can conclude that no one should have first-class citizenship unless everyone does, one must know how bad second-class citizenship is. In a society in which second-class citizenship means that even basic human rights are not honored, while first-class citizenship means that they are, it would be immoral to suggest taking first-class citizenship away from anyone, even though it is available only to a few. I assume that this is not the case in the United States, where second-class citizenship (no money for legal assistance) need not imply great poverty or lack of the human minimum. (Poverty is more like third-class citizenship; “only” 14% of Americans are third-class citizens.)Google Scholar

29 Freedman, M., Lawyers' Ethics in an Adversary System ch. 1 (Indianapolis: Bobbs-Merrill, 1976).Google Scholar

30 Pepper at 626 (emphasis omitted).Google Scholar

31 The argument that follows is one which I have developed in more detail in Luban, Fish v. Fish or, Some Realism About Idealism, 7 Cardozo L. Rev. 693, 697–700 (1986).Google Scholar

32 Pepper at 628.Google Scholar

33 Pepper at 625. Classic statements of this thesis are Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 461 (1897) (“The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law”), and Cohen, The Problems of a Functional Jurisprudence, 1 Mod. L. Rev. 5, 16 (1937) (“any … legal question may be broken up into a number of subordinate questions, each of which refers to the actual behavior of the courts… . The law, as the realistic lawyer uses the term, is the body of answers to such questions”).Google Scholar

34 Pepper at 627–28.Google Scholar

35 Another example: Kenneth Mann, in his excellent book Defending White-Collar Crime: A Portrait of Attorneys at Work (New Haven, Conn.: Yale University Press, 1985), quotes a Manhattan white-collar criminal defense attorney's explanation of why he would never blow the whistle on clients planning future crimes: “That's not a crime until the government gets a conviction in court, and as long as that has not happened there is no crime there, as far as I have to conclude.”Id. at 115. From this, of course, it follows that there is no such thing as a future crime. Perhaps we should call this Low Low Realism.Google Scholar

36 For a discusion of this serious position, see R. S. Summers, Instrumentalism and American Legal Theory (Ithaca, N.Y.: Cornell University Press, 1982).Google Scholar

37 Notice that High Realism is very different: no official who takes a bribe can believe in good faith that bribe taking is legal, and thus according to High Realism bribe taking cannot be legal.Google Scholar

38 One small point: on page 633. Pepper says (discussing the hidden bodies case), “Professor Luban's approach implies that normal morality should have been applied by the lawyers” (i.e., they should have revealed where the bodies were hidden). I have it on the best of authority that Luban thinks the opposite. He distinguishes the hidden bodies case from the fact situation of Spaulding v. Zimmerman, 116 N.W.2d 704 (1962) (in which a personal injury defense lawyer kept confidential the fact-known to him through a physician's report but not known to the plaintiff-that the plaintiff had a potentially fatal aortic aneurism). Luban says that, unlike the hidden bodies case, here there is no strong reason for the lawyer to keep the confidence, thereby implying (if I read him aright) that there is strong reason to keep confidential the knowledge of where the bodies are hidden. Luban, The Adversary System Excuse, in Luban, supra note 5, at 114–15 (1983).Google Scholar