Law in Contemporary Society

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 Attorney-Privilege & Violation of the Law

This paper investigates two prompts: is it ethically permissible for attorneys to violate the law without legally recognized justification? If yes, what considerations encourage restraint?


JasonLissyThirdPaper 5 - 09 Jul 2009 - Main.JasonLissy
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Attorney-Privilege & Violation of the Law
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 Attorney violations erode the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.
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The strongest counter characterizes attorney power/legitimacy as a form of capital to be spent prudently. Instances where the state fails to achieve justice and proves unresponsive to lawful petitions (e.g. prohibitions against euthenasia) require expenditure.
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The strongest counter characterizes attorney power/legitimacy as a form of capital to be spent prudently. Instances where the state fails to achieve justice and proves unresponsive to lawful petitions for reform (e.g. prohibitions against euthenasia) require expenditure.
 The Role of Judgment

JasonLissyThirdPaper 4 - 09 Jul 2009 - Main.JasonLissy
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META TOPICPARENT name="ThirdPaper"
Attorney-Privilege & Violation of the Law
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This paper investigates two prompts: is it ethically permissible for attorneys to violate the law without legally recognized excuse or justification? If yes, what considerations encourage the exercise of restraint?
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This paper investigates two prompts: is it ethically permissible for attorneys to violate the law without legally recognized justification? If yes, what considerations encourage restraint?
 
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Two arguments are offered: (1) system- and cause-legitimacy rationales, while compelling at some level, fail to provide a sufficient explanation of why attorneys should categorically refrain from law-breaking;
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Two arguments are offered: (1) system- and cause-legitimacy rationales fail to provide a conclusive explanation of why attorneys should categorically refrain from law-breaking;
 
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(2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantages lie in lawful recourse and (b) the lawyer’s license receives and preserves its power through its users’ adherence to the law. The attorney-as-privileged-actor argument, while perhaps not a fully satisfying defense of a categorical bar against violation, is a persuasive argument for the exercise of restraint.
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(2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantages lie in lawful recourse and (b) the lawyer’s license receives its power through its users’ adherence to the law. The attorney-as-privileged-actor argument, while not convincing of the need for a categorical bar against violation, is a persuasive argument for the exercise of restraint.
 System Legitimacy and an Impressionable Public
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Criminal-law theorists provide two arguments which neatly outline the “system legitimacy” view. First, law establishes a moral balance in society; by restraining society’s members it provides absolute gains in the form of life and bodily security (Morris, “Persons and Punishment”). Similarly, by punishing transgressors, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).
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Criminal-law theorists provide two arguments which neatly outline the “system legitimacy” view. First, law establishes a moral balance in society; by restraining citizens it provides absolute gains in the form of bodily security (Morris, “Persons and Punishment”). Similarly, by punishing transgressors, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).
 
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Violations, then, as affronts to our morality and social order, need be punished in order to restore system integrity and deter future challenges. Lawbreaking by those most familiar the law is especially egregious since it will embolden violations by those less-inclined to obey its letter.
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Violations, then, are affronts to our morality and social order which need be punished to restore and deter future challenges to system integrity. Lawbreaking by those most familiar the law is egregious since it will spur violations by those less-inclined to obey its letter.
 
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The system legitimacy argument rests on the challengeable presumption that any unpunished violations will spur relativism and gut the law’s moral force (e.g. courts’ rationale for an objective definition of wrong within the insanity defense).
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The system legitimacy argument rests on the challengeable presumption that any unpunished violations will foster relativism and gut the law’s moral force. Take the attorney who violates patent laws believing the recognition and the desire to create are sufficient to motivate investment of the resources necessary for innovation.
 
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Take the attorney who violates patent laws believing the desire to create and recognition attending creation are sufficient to motivate investment of the resources necessary for human advancement. It is unclear that these transgressions will catalyze violation of malum in se offenses (e.g. forcible rape).
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It is unclear that these transgressions will catalyze violation of malum in se offenses (e.g. forcible rape). It seems more plausible that principled violations by attorneys would catalyze challenges mainly to questionable malum prohibitum offenses.
 
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It seems more plausible that any cascading would be localized - that principled violations of the law by attorneys would catalyze challenges mainly to questionable malum prohibitum offenses.
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This “attorneys as class of gold” argument is weakened by the many unprincipled abuses of power by our world’s elite which strengthen the conviction that: the “fair administration of justice requires that no man can be a judge in his own case, however exalted his station, however righteous his motives” (Stewart, Walker v. City of Birmingham).
 
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To be fair, this “attorneys as class of gold” argument is undermined by the many unprincipled abuses of power by our world’s elite which strengthen the conviction that: the “fair administration of justice requires that no man can be a judge in his own case, however exalted his station, however righteous his motives” (Stewart, Walker v. City of Birmingham).
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Still, it has not been proven that principled violations are indistinguishable from unprincipled ones in the eyes of the actor and society or that they result in negative repercussions of great magnitude.
 Cause Legitimacy and the Vulnerable Client
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The “cause legitimacy” argument asserts that zealous advocacy requires professional competence and respectable counsel. Essentially, representation by law-breakign attorneys delegitimizes the clients’ causes: a debatable proposition.
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The “cause legitimacy” argument asserts that zealous advocacy requires professional competence and respectable counsel. Essentially, representation by law-breaking attorneys delegitimizes the clients’ causes: a debatable proposition.
 
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As advocates, attorneys need not appear neutral. Principled violations do not necessarily “reflect adversely on the lawyer’s honesty, trustworthiness, or general fitness as a lawyer” (ABA Model Rules of Professional Conduct Rule 8.4(b)). Rather, they may increase the respectability of the advocate since he may possess a principled interest in the client’s position.
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To be respectable, attorneys needn't be neutral. Principled violations do not necessarily “reflect adversely on the lawyer’s honesty, trustworthiness, or general fitness as a lawyer” (ABA Model Rules of Professional Conduct Rule 8.4(b)). Rather, they may increase the respectability of the advocate since he may possess a principled interest in the client’s position.
 
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In cases concerning malum prohibitum offenses, an advocate who refrains from engaging in the alleged illicit practice of his client may too negatively influence juror and legislative perceptions. Attorney compliance with questionable malum prohibitum offenses may signal the legitimacy of the law alleged to have been violated.
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Figures like Keith Stroup, NORML Chief Counsel and a self-proclaimed cannabis user, would argue his violation increases his advocacy's legitimacy, since he is an otherwise upstanding member of society.
 
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Figures like Keith Stroup, Chief Legal Counsel for NORML and a self-proclaimed cannabis user, would likely argue that his violation increases the legitimacy of his advocacy, since he is an otherwise upstanding member of society.
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Further, in cases concerning malum prohibitum offenses, an advocate who refrains from engaging in the illicit practice of his client may too negatively influence juror and legislative perceptions. Attorney compliance with questionable offenses may suggest the legitimacy of the law violated because of its perceived illegitimacy.
 
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At best the cause-legitimacy argument provides a lukewarm argument for restraint; it suggests that violations by counsel may or may not jeopardize a client’s cause.
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At best, the cause-legitimacy argument provides a lukewarm argument for restraint; it suggests that violations by counsel might jeopardize a client’s cause.
 The Lawyer as Privileged Actor: Compromise, Comparative Advantage, and Self-Interest
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The “lawyer-as-privileged-actor” argument asserts two compelling rationales for attorney abidance by the law: (1) grant of the law license is a quid-pro-quo exchange; (2) compliance with the law is the source of the attorney’s power.
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The “lawyer-as-privileged-actor” argument asserts two compelling rationales for attorney compliance with the law: (1) grant of the law license is a quid-pro-quo; (2) compliance with the law is the source of attorney’s power.
 
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To the first, the lawyer occupies space proximate to the machinery of the state; she has access to unique modes of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.
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To the first, the lawyer occupies space proximate to the state's machinery; she has access to unique channels of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.
 
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The lawyer’s comparative advantage, then, lies not in unlawful, potentially destabilizing agitation but in reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ultimate ends sought.
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The lawyer’s comparative advantage, then, lies not in unlawful agitation but in lawful reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ultimate ends sought.
 
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Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action (see (1) the lack of necessity defense for indirect civil disobedience: U.S. v. Schoon; (2) collateral bar rules: Walker v. City of Birmingham ). By accepting the privileges of the law license, attorneys agree to exhaust all lawful recourse before taking additional measures.
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Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action (see (1) U.S. v. Schoon no necessity defense for indirect civil disobedience; (2) collateral bar rules: Walker v. City of Birmingham ). By accepting the privileges of the law license, attorneys agree to exhaust lawful recourse before taking unlawful measures.
 
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Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should therefore be evaluated under a rigid standard.
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These unique features of attorney status suggest the need for attorneys to disregard the law is less compelling; their necessity claims should therefore be evaluated under a rigid standard.
 Lastly, the source of attorney’s power to effect change with words lies in her legitimacy. Citizens trust attorneys to handle society’s most consequential dilemmas largely because their agency is steeped in and bounded by established principle, precedent, and doctrine (ChangingSocietyUsingWordsTalk).
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An attorney’s violation of the law thus erodes the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.
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Attorney violations erode the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.

The strongest counter characterizes attorney power/legitimacy as a form of capital to be spent prudently. Instances where the state fails to achieve justice and proves unresponsive to lawful petitions (e.g. prohibitions against euthenasia) require expenditure.

 The Role of Judgment
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The preceding analysis identified three rationales of varying persuasiveness for why attorneys have an ethical obligation not to violate the law. Each view aims to convince its reader of the need for a categorical prohibition against the law’s violation. The closest they come to such a principle, individually or collectively, is the uncontroversial conclusion that an attorney’s violation of the law should be an action of last resort.
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The preceding analysis identified three rationales of varying persuasiveness for why attorneys have an ethical obligation not to violate the law. Each view aims to convince its reader of the need for a categorical prohibition against the law’s violation. The closest they come to such a principle, individually or collectively, is the conclusion that an attorney’s lawbreaking should be an action of last resort.
 
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The most that can be hoped for, then, is for attorneys to consider the impact of their actions under each of the three theories as they exercise judgment and persevere in their roles as agents for just change.
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The most that can be hoped for is for attorneys to consider the impact of their actions under each of the three theories as they exercise judgment and persevere in their roles as agents for just change.

JasonLissyThirdPaper 3 - 08 Jul 2009 - Main.JasonLissy
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META TOPICPARENT name="ThirdPaper"
Attorney-Privilege & Violation of the Law
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 To the first, the lawyer occupies space proximate to the machinery of the state; she has access to unique modes of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.
Changed:
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The lawyer’s comparative advantage, then, lies not in unlawful, potentially destabilizing agitation but in reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ends sought.
>
>
The lawyer’s comparative advantage, then, lies not in unlawful, potentially destabilizing agitation but in reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ultimate ends sought.
 Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action (see (1) the lack of necessity defense for indirect civil disobedience: U.S. v. Schoon; (2) collateral bar rules: Walker v. City of Birmingham ). By accepting the privileges of the law license, attorneys agree to exhaust all lawful recourse before taking additional measures.
Changed:
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Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should be evaluated under a rigid standard.
>
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Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should therefore be evaluated under a rigid standard.
 Lastly, the source of attorney’s power to effect change with words lies in her legitimacy. Citizens trust attorneys to handle society’s most consequential dilemmas largely because their agency is steeped in and bounded by established principle, precedent, and doctrine (ChangingSocietyUsingWordsTalk).

JasonLissyThirdPaper 2 - 07 Jul 2009 - Main.JasonLissy
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META TOPICPARENT name="ThirdPaper"
Attorney-Privilege & Violation of the Law
Changed:
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The following paper sets out to investigate two prompts: is it ever ethically permissible for attorneys to violate the law without legally recognized excuse or justification? If yes, what considerations encourage the exercise of restraint? In an attempt to provide a tentative answer, it investigates both general and attorney-specific rationales for obeying the law.
>
>
This paper investigates two prompts: is it ethically permissible for attorneys to violate the law without legally recognized excuse or justification? If yes, what considerations encourage the exercise of restraint?
 
Changed:
<
<
Two arguments are offered: (1) system- and cause-legitimacy rationales, while compelling on some level, fail to provide a sufficient explanation of why attorneys should categorically refrain from violating the law; (2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantage lies in lawful recourse and (b) the lawyer’s license, as an instrument conferring unique ability to effect change with words, receives and preserves its power through its users’ adherence to the law. While not a categorical bar to disregard of the law’s letter, the attorney-as-privileged-actor argument is a persuasive justification for the exercise of extreme restraint.
>
>
Two arguments are offered: (1) system- and cause-legitimacy rationales, while compelling at some level, fail to provide a sufficient explanation of why attorneys should categorically refrain from law-breaking;

(2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantages lie in lawful recourse and (b) the lawyer’s license receives and preserves its power through its users’ adherence to the law. The attorney-as-privileged-actor argument, while perhaps not a fully satisfying defense of a categorical bar against violation, is a persuasive argument for the exercise of restraint.

 System Legitimacy and an Impressionable Public
Changed:
<
<
The “system legitimacy” argument is the most common and challengeable rationale for adherence to the law. Criminal-law theorists provide two arguments which neatly outline this view. First, the rule of law establishes a moral balance in society; by placing restraints on society’s members it provides absolute gains in the form of life and bodily security (Herbert Morris “Persons and Punishment”). Secondly, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).
>
>
Criminal-law theorists provide two arguments which neatly outline the “system legitimacy” view. First, law establishes a moral balance in society; by restraining society’s members it provides absolute gains in the form of life and bodily security (Morris, “Persons and Punishment”). Similarly, by punishing transgressors, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).

Violations, then, as affronts to our morality and social order, need be punished in order to restore system integrity and deter future challenges. Lawbreaking by those most familiar the law is especially egregious since it will embolden violations by those less-inclined to obey its letter.

 
Changed:
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Violations are an affront to both our morality and social order, which need be punished so as to restore system integrity and discourage similar challenges. Lawbreaking by those most familiar with and proximate to law’s operation is especially egregious since it will embolden violations by those less-inclined to live by its letter.
>
>
The system legitimacy argument rests on the challengeable presumption that any unpunished violations will spur relativism and gut the law’s moral force (e.g. courts’ rationale for an objective definition of wrong within the insanity defense).
 
Changed:
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The system legitimacy argument rests on a challengeable presumption that any violation, if unpunished, will snowball, spur relativism, and gut the law’s moral force. For example, it is unclear that the actions of an attorney who believes the human desire to create is a sufficient motivator of investment and thereby violates patent laws will catalyze violation of malum in se offenses (e.g. forcible rape). It is plausible that, at most, principled violations of attorneys are likely to catalyze challenges to already questionable malum prohibitum offenses.
>
>
Take the attorney who violates patent laws believing the desire to create and recognition attending creation are sufficient to motivate investment of the resources necessary for human advancement. It is unclear that these transgressions will catalyze violation of malum in se offenses (e.g. forcible rape).
 
Changed:
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To be fair, this “gold class” argument is undermined by ubiquitous, unprincipled abuses of power which lend added weight to distrust of discretion and the belief that: the “fair administration of justice requires that no man can be a judge in his own case, however exalted his station, however righteous his motives” (Stewart, Walker v. City of Birmingham).
>
>
It seems more plausible that any cascading would be localized - that principled violations of the law by attorneys would catalyze challenges mainly to questionable malum prohibitum offenses.

To be fair, this “attorneys as class of gold” argument is undermined by the many unprincipled abuses of power by our world’s elite which strengthen the conviction that: the “fair administration of justice requires that no man can be a judge in his own case, however exalted his station, however righteous his motives” (Stewart, Walker v. City of Birmingham).

 Cause Legitimacy and the Vulnerable Client

Changed:
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The “cause legitimacy” argument asserts that zealous advocacy not only requires professional competence but respectability. Essentially, attorneys who violate the law cast a pall on the cases and delegitimize the causes of their clients. This argument, like the system legitimacy argument, is subject to challenge.
>
>
The “cause legitimacy” argument asserts that zealous advocacy requires professional competence and respectable counsel. Essentially, representation by law-breakign attorneys delegitimizes the clients’ causes: a debatable proposition.

As advocates, attorneys need not appear neutral. Principled violations do not necessarily “reflect adversely on the lawyer’s honesty, trustworthiness, or general fitness as a lawyer” (ABA Model Rules of Professional Conduct Rule 8.4(b)). Rather, they may increase the respectability of the advocate since he may possess a principled interest in the client’s position.

 
Changed:
<
<
As advocates, attorneys need not appear as neutrals. Principled violations for a cause do not necessarily “reflect adversely on the lawyer’s honesty, trustworthiness, or general fitness as a lawyer” (ABA Model Rules of Professional Conduct Rule 8.4(b)). Rather, they may increase the credibility of the advocate since he possesses a principled interest in his client’s position.
>
>
In cases concerning malum prohibitum offenses, an advocate who refrains from engaging in the alleged illicit practice of his client may too negatively influence juror and legislative perceptions. Attorney compliance with questionable malum prohibitum offenses may signal the legitimacy of the law alleged to have been violated.
 
Changed:
<
<
Figures like Keith Stroup, Chief Legal Counsel for NORML and a self-proclaimed recreational cannabis user, would likely argue that his violation actually increases the legitimacy of his advocacy, since he is an otherwise upstanding member of the society (insert Wikipedia entry). At best this argument provides a lukewarm argument for restraint; it suggests that violations by counsel may or may not jeopardize a client’s cause.
>
>
Figures like Keith Stroup, Chief Legal Counsel for NORML and a self-proclaimed cannabis user, would likely argue that his violation increases the legitimacy of his advocacy, since he is an otherwise upstanding member of society.

At best the cause-legitimacy argument provides a lukewarm argument for restraint; it suggests that violations by counsel may or may not jeopardize a client’s cause.

  The Lawyer as Privileged Actor: Compromise, Comparative Advantage, and Self-Interest
Changed:
<
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The “lawyer-as-privileged-actor” argument asserts two compelling rationales for attorney abidance by the law: (1) grant of the law license is an act of compromise – a bargained for exchange; (2) compliance with the law is the source of the attorney’s power. To the first, the lawyer occupies space proximate to the machinery of the state; she has access to unique modes of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.
>
>
The “lawyer-as-privileged-actor” argument asserts two compelling rationales for attorney abidance by the law: (1) grant of the law license is a quid-pro-quo exchange; (2) compliance with the law is the source of the attorney’s power.

To the first, the lawyer occupies space proximate to the machinery of the state; she has access to unique modes of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.

 The lawyer’s comparative advantage, then, lies not in unlawful, potentially destabilizing agitation but in reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ends sought.
Changed:
<
<
Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action [see (1) the lack of necessity defense for indirect civil disobedience: U.S. v. Schoon; (2) collateral bar rules: _Walker v. City of Birmingham_]. By accepting the privileges of the law license, attorneys agree to exhaust all lawful recourse before taking additional measures. Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should be evaluated under a rigid standard.
>
>
Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action (see (1) the lack of necessity defense for indirect civil disobedience: U.S. v. Schoon; (2) collateral bar rules: Walker v. City of Birmingham ). By accepting the privileges of the law license, attorneys agree to exhaust all lawful recourse before taking additional measures.

Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should be evaluated under a rigid standard.

Lastly, the source of attorney’s power to effect change with words lies in her legitimacy. Citizens trust attorneys to handle society’s most consequential dilemmas largely because their agency is steeped in and bounded by established principle, precedent, and doctrine (ChangingSocietyUsingWordsTalk).

 
Changed:
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Lastly, the source of attorney’s power to effect change with words lies in her legitimacy. Citizens trust attorneys to handle society’s most consequential dilemmas largely because their agency is steeped in and bounded by established principle, precedent, and doctrine (ChangingSocietyUsingWordsTalk? ). An attorney’s violation of the law thus erodes the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.
>
>
An attorney’s violation of the law thus erodes the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.
 
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When Lawful Recourse Runs Out
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The Role of Judgment
  The preceding analysis identified three rationales of varying persuasiveness for why attorneys have an ethical obligation not to violate the law. Each view aims to convince its reader of the need for a categorical prohibition against the law’s violation. The closest they come to such a principle, individually or collectively, is the uncontroversial conclusion that an attorney’s violation of the law should be an action of last resort.
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The tougher cases (e.g. whether to represent a slave-owner in a fugitive slave matter in 1850 Massachusetts and face disbarment) appear reserved for the exercise of individual judgment. The most that can be hoped for, then, is for attorneys to persevere in their roles as agents for lawful change.
>
>
The most that can be hoped for, then, is for attorneys to consider the impact of their actions under each of the three theories as they exercise judgment and persevere in their roles as agents for just change.

JasonLissyThirdPaper 1 - 15 May 2009 - Main.JasonLissy
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Added:
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META TOPICPARENT name="ThirdPaper"
Attorney-Privilege & Violation of the Law

The following paper sets out to investigate two prompts: is it ever ethically permissible for attorneys to violate the law without legally recognized excuse or justification? If yes, what considerations encourage the exercise of restraint? In an attempt to provide a tentative answer, it investigates both general and attorney-specific rationales for obeying the law.

Two arguments are offered: (1) system- and cause-legitimacy rationales, while compelling on some level, fail to provide a sufficient explanation of why attorneys should categorically refrain from violating the law; (2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantage lies in lawful recourse and (b) the lawyer’s license, as an instrument conferring unique ability to effect change with words, receives and preserves its power through its users’ adherence to the law. While not a categorical bar to disregard of the law’s letter, the attorney-as-privileged-actor argument is a persuasive justification for the exercise of extreme restraint.

System Legitimacy and an Impressionable Public

The “system legitimacy” argument is the most common and challengeable rationale for adherence to the law. Criminal-law theorists provide two arguments which neatly outline this view. First, the rule of law establishes a moral balance in society; by placing restraints on society’s members it provides absolute gains in the form of life and bodily security (Herbert Morris “Persons and Punishment”). Secondly, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).

Violations are an affront to both our morality and social order, which need be punished so as to restore system integrity and discourage similar challenges. Lawbreaking by those most familiar with and proximate to law’s operation is especially egregious since it will embolden violations by those less-inclined to live by its letter.

The system legitimacy argument rests on a challengeable presumption that any violation, if unpunished, will snowball, spur relativism, and gut the law’s moral force. For example, it is unclear that the actions of an attorney who believes the human desire to create is a sufficient motivator of investment and thereby violates patent laws will catalyze violation of malum in se offenses (e.g. forcible rape). It is plausible that, at most, principled violations of attorneys are likely to catalyze challenges to already questionable malum prohibitum offenses.

To be fair, this “gold class” argument is undermined by ubiquitous, unprincipled abuses of power which lend added weight to distrust of discretion and the belief that: the “fair administration of justice requires that no man can be a judge in his own case, however exalted his station, however righteous his motives” (Stewart, Walker v. City of Birmingham).

Cause Legitimacy and the Vulnerable Client

The “cause legitimacy” argument asserts that zealous advocacy not only requires professional competence but respectability. Essentially, attorneys who violate the law cast a pall on the cases and delegitimize the causes of their clients. This argument, like the system legitimacy argument, is subject to challenge.

As advocates, attorneys need not appear as neutrals. Principled violations for a cause do not necessarily “reflect adversely on the lawyer’s honesty, trustworthiness, or general fitness as a lawyer” (ABA Model Rules of Professional Conduct Rule 8.4(b)). Rather, they may increase the credibility of the advocate since he possesses a principled interest in his client’s position.

Figures like Keith Stroup, Chief Legal Counsel for NORML and a self-proclaimed recreational cannabis user, would likely argue that his violation actually increases the legitimacy of his advocacy, since he is an otherwise upstanding member of the society (insert Wikipedia entry). At best this argument provides a lukewarm argument for restraint; it suggests that violations by counsel may or may not jeopardize a client’s cause.

The Lawyer as Privileged Actor: Compromise, Comparative Advantage, and Self-Interest

The “lawyer-as-privileged-actor” argument asserts two compelling rationales for attorney abidance by the law: (1) grant of the law license is an act of compromise – a bargained for exchange; (2) compliance with the law is the source of the attorney’s power. To the first, the lawyer occupies space proximate to the machinery of the state; she has access to unique modes of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.

The lawyer’s comparative advantage, then, lies not in unlawful, potentially destabilizing agitation but in reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ends sought.

Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action [see (1) the lack of necessity defense for indirect civil disobedience: U.S. v. Schoon; (2) collateral bar rules: _Walker v. City of Birmingham_]. By accepting the privileges of the law license, attorneys agree to exhaust all lawful recourse before taking additional measures. Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should be evaluated under a rigid standard.

Lastly, the source of attorney’s power to effect change with words lies in her legitimacy. Citizens trust attorneys to handle society’s most consequential dilemmas largely because their agency is steeped in and bounded by established principle, precedent, and doctrine (ChangingSocietyUsingWordsTalk? ). An attorney’s violation of the law thus erodes the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.

When Lawful Recourse Runs Out

The preceding analysis identified three rationales of varying persuasiveness for why attorneys have an ethical obligation not to violate the law. Each view aims to convince its reader of the need for a categorical prohibition against the law’s violation. The closest they come to such a principle, individually or collectively, is the uncontroversial conclusion that an attorney’s violation of the law should be an action of last resort.

The tougher cases (e.g. whether to represent a slave-owner in a fugitive slave matter in 1850 Massachusetts and face disbarment) appear reserved for the exercise of individual judgment. The most that can be hoped for, then, is for attorneys to persevere in their roles as agents for lawful change.


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