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

2 Kaufman, A Commentary on Pepper's “The Lawyer's Amoral Ethical Role,” 1986 A.B.F. Res. J. 651.Google Scholar

3 Luban, The Lysistratian Prerogative: A Response to Stephen Pepper, 1986 A.B.F. Res. J. 637.Google Scholar

4 Kaufman at 651–52.Google Scholar

5 Id., passim.Google Scholar

6 See e.g., Hampshire, Public and Private Morality, in S. Hampshire, ed., Public and Private Morality (1978); Shaffer, The Gentleman in Professional Ethics, 10 Queen's L.J. 1 (1984).Google Scholar

7 Kaufman, A., Problems in Professional Responsibility (2d ed. 1984).Google Scholar

8 Kaufman at 651.Google Scholar

9 Id. at 652–53.Google Scholar

10 Id. at 655.Google Scholar

11 Id. at 654–55Google Scholar

12 Kaufman at 652 (emphasis omitted).Google Scholar

13 Kaufman at 653.Google Scholar

14 Or the obligation might be that of society in general rather than the profession's or the individual lawyer's.Google Scholar

15 Schwartz, The Zeal of the Civil Advocate, 1983 A.B.F. Res. J. 543, 555–63. See also Wolfram, A Lawyer's Duty to Represent Clients, Repugnant and Otherwise, in D. Luban, ed., The Good Lawyer 214 (1984).Google Scholar

16 The confidentiality provision of the new ABA Model Rules has been the most controversial, both in the adoption of the Rules by the ABA, and in the debate over adoption by the states. Several states that have adopted the Rules have significantly changed this provision. Law review commentary has been voluminous, far more than on any other single issue in professional ethics.Google Scholar

17 Pepper at 616.Google Scholar

18 It is true that lawyers must be able to make a living from their trade if the profession is to survive. That appears to be the justification for the guild provisions provided in the ABA's Code of Professional Responsibility. Ethical Consideration 2–16 states in part: “The legal profession cannot remain a viable force in fulfilling its role in our society unless its members receive adequate compensation for services rendered, and reasonable fees should be charged in appropriate cases to clients able to pay them” (footnote omitted). This recognition is, however, merely one of the base premises for the underlying conflict of interest between professional and client which creates the need for a professional ethic in the first place. Pepper at 615–16.Google Scholar

19 ABA Model Rules of Professional Conduct Rule 1.6 (b): “A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (2) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client.”Google Scholar

20 Roscoe Pound-American Trial Lawyers Foundation, The American's Lawyers Code of Conduct, Rule 1.5.Google Scholar

21 ABA Model Rules of Professional Conduct Rule 1.6 (b).Google Scholar

22 See Freedman & Goldman, Lawyer-Client Confidentiality: An Exchange 3 Criminal Justice Ethics 3, 8–16 (1984). Note that Professor Freedman's natural law line (rejected by the ATLA but included as an alternative in its proposed code) is different from the ABA's. Unlike the ABA, he would exclude “substantial bodily harm” as a sufficiently bad outcome to justify revealing a client's confidence; but, again unlike the ABA, he would allow the lawyer to betray confidences regardless of whether the threat to life comes from criminal or lawful conduct and whether it comes from the client or not: “A lawyer may reveal a client's confidence when and to the extent that the lawyer reasonably believes that divulgence is necessary to prevent imminent danger to human life. The lawyer shall use all reasonable means to protect the client's interests that are consistent with preventing loss of life.” The American Lawyer's Code of Conduct Rule 1.6. Professor Freedman was reporter for this code. His personal view is that disclosure in such circumstances should be mandatory, not discretionary. Freedman & Goldman, Lawyer-Client Confidentiality: An Exchange, 3 Criminal Justice Ethics 3 (1984).Google Scholar

23 The justification of the amoral role in my essay rests on two primary values: autonomy and equality. The equality aspect of the argument is to some extent dependent on the autonomy aspect, for if autonomy (in the guise of access to the law) is not important, then inequality of persons in relation to such access consequently would be of less significance. It is for that reason that I refer to differences on the issue of autonomy as “pivotal.”Google Scholar

24 A third difference is addressed in the text accompanying note 37 infra.Google Scholar

25 I elaborate briefly on the value of autonomy as a premise for the justification of the amoral role in my essay, Pepper at 616–17. Definition l.b of “autonomy” in the Oxford English Dictionary is: “liberty to follow one's will, personal freedom.” The “liberty, freedom, autonomy” cluster of terms is sufficient, I believe, to delineate the value relied on in my essay and in this rejoinder. Professor Luban's comments and the correspondence of a few others suggest that further exploration is appropriate in the future. It has been asserted, for example, that “autonomy” has no moral value. D'Amato & Eberle, Three Models of Legal Ethics, 27 St. Louis U.L.J. 761, 773, 794 (1983). An exploration of autonomy as a primary value leads, interestingly, to connections with the other primary value underlying the lawyer's amoral ethical role, equality. See, e.g., D. Richards, Toleration and the Constitution 133 (1986); Dwor-kin, Liberalism, in S. Hampshire, supra note 6 (reprinted in R. Dworkin, A Matter of Principle 181–204 (1985); Richards, Rights and Autonomy, 92 Ethics 3 (1981).Google Scholar

26 The emphasis in my essay on autonomy has led some to perceive my justification as based upon a view of man as essentially alone and unconnected. In the tension between individual and community, the word “autonomy” may be more suggestive of the individual, but it is essential to realize that an individual's autonomy involves his or her relations to various communities. An individual expresses autonomy at least in part through the extent and nature of his or her allegiances to those communities. Being autonomous is not inconsistent with being committed or connected. A lawyer's respect for and service to the client's autonomy ought not to assume an isolated client; to the contrary, the lawyer in serving the client has to be concerned about the client's commitments. In fact, “the client” often is a community of some sort. These issues are raised in an excellent forthcoming article by Professor Thomas Shaffer, The Legal Ethics of Radical Individualism, 65 Tex. L. Rev. 401 (1987). I agree with most, but not all, of the views expressed there by Professor Shaffer, and believe that the first-class citizenship model and the amoral professional role are compatible with those views. Elaboration of that compatibility awaits another occasion.Google Scholar

27 It is only through nonscreening lawyers that a citizen can have full access to rights such as those granted in bills of rights. These rights have often been emphasized as justifying the lawyer's amoral role. See, e.g., the work of Professor Freedman. But these rights are only a small subclass of “the law” to which all citizens ought to have access. The first-class citizenship model thus encompasses a “rights”-based justification, but is much more broadly based.Google Scholar

28 Luban at 639 (emphasis omitted).Google Scholar

29 See note 25 supra.Google Scholar

30 Luban at 640.Google Scholar

31 Id. at 638–40, but see id. at 642–43. He recognizes the general value of autonomy, but in a way consistent with the characterization of his argument in the text. He recognizes that “the generality of [moral] decisions are left in the private realm” but appears to believe that this is due not to an independent high value attributed to freedom, but rather to the difficulties of legal delineation and enforcement.Google Scholar

32 Luban at 639.Google Scholar

33 Id. at 642.Google Scholar

34 Id. at 641.Google Scholar

35 The fundamental error in Charles Fried's well-known article, The Lawyer as Friend: The Moral Foundation of the Lawyer-Client Relation, 86 Yale L.J. 573 (1977), may have been his failure to appreciate this difference. Fried's position was based, at least in part, on the values of autonomy and equality, id. at 1073, but this was obscured by the misleading analogy of the lawyer's obligation to that of a friend.Google Scholar

36 What follows is a summary of Pepper, supra note 1, pt. I.Google Scholar

37 Luban at 643.Google Scholar

38 Id. at 643.Google Scholar

39 Id. at 643–44.Google Scholar

40 Part of the reason it is better is because the lawyer-client moral dialogue adds a moral dimension, a second moral voice, to decision making. See Pepper at pt. IV.D.Google Scholar

41 Kaufman at 654.Google Scholar

42 Pepper at 26.Google Scholar

43 “The lawyer who tells the client, 'Do what you want; it is all indeterminate and manipulable,' does the client no favor.” Kaufman at 654. True. I do not believe that the phenomenon described in pt. III of my essay boils down to this advice; at least that was not my intention.Google Scholar

44 The phrase “legal realism” was used in my paper to stand for an amalgam of several points of view characteristic of contemporary American lawyers and legal education. Pepper at 624–25.Google Scholar

45 Luban at 646–48.Google Scholar

46 Id. at 646 (emphasis omitted).Google Scholar

47 Pepper at 627–28.Google Scholar

48 Id. at 629–30.Google Scholar

49 Luban at 647.Google Scholar

50 Id. at 647.Google Scholar

51 How would Professor Luban counsel the lawyer who has been consulted by a client who desires information about the legal aspects of contemplated euthanasia? Where does advice by that lawyer about the role of the jury in a murder prosecution (including the possibility of jury nullification), or about the possibility of prosecutorial discretion, fit into his view? Is advice about these “procedural” aspects of “the law” out of bounds because of the “substantive” law prohibiting murder? Or would their propriety depend on the lawyer's personal moral views about euthanasia under the client's circumstances? Why should the client's access to knowledge about the law in such a situation vary with the moral beliefs of the lawyer he or she happens to consult? I suggest that the model presented in my paper, including both the obligation to give the legal advice and the encouragement to engage with the client in moral dialogue, is superior to the hit-or-miss moral screening of the law suggested by Professor Luban. Compare Pepper, supra note 1, with Luban, The Adversary System Excuse, in D. Luban, ed., The Good Lawyer 83 (1984), and Luban, supra note 3.Google Scholar

52 If one posits a continuum with breach of contract on one end and murder on the other, where the line is drawn on the advice a lawyer can give about enforcement possibilities and the consequences of violation, and on which side of that line the water pollution example falls, may well be questions leading to large and difficult jurisprudential problems. (The situation posited in note 51, supra, leads in the same direction.) Professor Simon, for example, has pointed out the tension between lawyers asserting a “right to breach contracts” but never asserting the parallel “right to commit murder” as exemplifying the tension between substantive and procedural law, and thus as an aspect of the complex problem of the need for order and the conflicting need for citizen discretion. Simon, The Ideology of Advocacy, 1978 Wis. L. Rev. 30, 48. It has recently been stated in these pages that the legal profession course may be “a sleeping jurisprudential giant,” Schneyer, Professional Responsibility Casebooks and the New Positivism; A Reply to Professor Chermerinsky, 1985 A.B.F. Res. J. 943, 958. The dispute between Professor Luban and myself on the “legal realism” issue at least suggests that issues of jurisprudence are unavoidable in the course.Google Scholar

53 This difference is recognized in the new ABA Model Rule 1.6 (b) reproduced in the text accompanying note 21 supra. See also note 22 supra.Google Scholar

54 See, e.g., H. L. A. Hart, The Concept of Law 35–41 (1961).Google Scholar

55 Hazard, How Far May a Lawyer Go in Assisting a Client in Legally Wrongful Conduct? 35 U. Miami L. Rev. 669, 673 (1981).Google Scholar

56 See text accompanying notes 45–48 supra.Google Scholar

57 It is a matter of some contemporary controversy whether or not the Reagan Justice Department's and various federal agency's policies of nonenforcement are legally justifiable. Litigation seeking to force enforcement of “the law” is a staple of administrative law. See, e.g., Young v. Community Nutrition Institute, 106 S. Ct. 2360 (1986); Heckler v. Chaney, 470 U.S. 821 (1985); K. Davis, Administrative Law, £ 28.06 (1972); K. Davis, Discretionary Justice (1969); Mashaw & Merrill, Administrative Law 706–46 (2d ed. 1985). For a discussion of the legality of nonenforcement decisions by police, see K. C. Davis, Police Discretion 79–97 (1975).Google Scholar

58 Hazard, supra note 55, at 672–75. Note the reflection of this difference in the ABA and ATLA rules on revealing client confidences. See text accompanying notes 21 & 22 supra and note 22 supra.Google Scholar

59 Rule 7–102 (A)(7) of the ABA's Model Code states: “In his representation of a client, a lawyer shall not: Counsel or assist his client in conduct the lawyer knows to be illegal or fraudulent.” The ambiguity in the words “illegal” and “counsel” make it possible that the core lawyer function of client counseling concerning the law is covered, and if the client uses the advice in unlawful conduct, the lawyer may have violated the provision. See Hazard, supra note 55. The breach of contract, negligence, and water pollution examples in pt. III of my essay could be categorized as “counsel” in regard to “illegal” conduct. The new ABA Model Rule 1.2 (d) clarifies (or changes) Disciplinary Rule 7–102 (A)(7) as follows: A lawyer shall noi counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. Note the clarification from “illegal” to “criminal,” and the approval of counseling concerning “legal consequences.” The corresponding ATLA rules state: 3.3 A lawyer shall not advise a client about the law when the lawyer knows that the client is requesting the advice for an unlawful purpose likely to cause death or serious physical injury to another person. 3.4 A lawyer shall not knowingly encourage a client to engage in illegal conduct, except in a good faith effort to test the validity or scope of the law.Google Scholar

60 Pepper, supra note 1, pt. III.Google Scholar

61 Id. at 624–25.Google Scholar