by W. Bradley Wendel. Princeton NJ: Princeton University Press, 2010. 286pp. Cloth $35.00/£24.95. ISBN: 9780691137193. e-Book. $35.00. ISBN: 9781400836581.
Reviewed by James C. Foster, Political Science, Oregon State University-Cascades. Email: james.foster [at] osucascades.edu.
No doubt, LPBR readers have heard the joke:
Question: How can you tell that a lawyer is lying?
Answer: His lips are moving.
Cornell law professor, W. Bradley Wendel, certainly has heard the quip (see p.209). The jibe would be beyond stale were it not grounded in the public’s widely shared “conclusion” (p.2), the underpinnings of which Professor Wendel scrutinizes in the book under review, that “lawyers deserve the labels of liars, cheats, and even torturers” (p.2). Wendel agrees – some lawyers occasionally do behave unethically. Yet he inquires, what defines their transgression? Is unethical behavior a matter of immorality, of personal irresponsibility, of being unjust? Is it confined to “a narrow definition of role obligations” – of “tactics and prudence” (p.30)? Or does ethical violation entail something else entirely? Wendel shifts “the evaluative frame of reference” (p.4) from both the conventional, everyday, understanding of lawyers’ obligations, as well as from the legal profession’s own attenuated, insular standards. He rejects explaining lawyers’ ethics as either a matter of doing good or of doing right by clients, in lieu of seeking to redefine legal professional ethics as fidelity to law. “[T]he law does not merely set the limits of permissible advocacy,” he argues, “but constitutes the lawyer’s role” (p.8). In a manner akin to being officers of the court, Wendel’s ethical lawyers are first and foremost agents of the law. For him, ethical lawyering is law-ful lawyering (however circular that appears at first glance). Wendel might recast the threadbare, persistent joke in thought-provoking, if less amusing, terms: Question: How can you tell that a lawyer is unethical? Answer: Her “reason-giving” (p.202) is “not plausible” (pp.194-195).
Reason giving? Not plausible? Grappling with these ideas plunges the reader into a densely argued “exercise in applied moral and political philosophy” (p.7) wherein Wendel ties ethical lawyering to legality – namely to “a scheme of legal entitlements and constraints [having been evaluated] from the perspective of one who regards them as creating reasons for action as such . . .” (p.202). In turn, Wendel links legality’s integrity to legitimacy, and ultimately to political authority, i.e., to “the view[s] actually reached by the community through established lawmaking procedures” (p.202). Ethical lawyering, thus, is grounded in providing plausible legal reasons to convert a client’s particularized interests into entitlements – plausibility being derived from Wendel’s argument that “the authority of the law is founded in social practices . . .” (pp.196-197). He explains: [*349]
Law is the enactment of a political community, and a legal judgment must therefore make reference to standards that transcend the individual making the judgment. . . . [T]he whole point of the law is to differentiate between something you can get away with, and something that is authorized, as a matter of right, and regulated by rules of general application . . . (p.196).
Client interests become justifiable entitlements via law. Law is legitimized via the politics of the community which produces it. “[T]he ethical value of lawyering is located in the domain of politics . . . [because] legal entitlements, which are different from mere interests or desires, . . . have been conferred by the society as a whole, in some fair manner, in the name of the political community” [emphasis added] (p.2).
How does Wendel’s account of legal ethics fare if (when?) legal entitlements themselves are thoroughly pervaded by “mere interests or desires”? Is the dissimilarity Wendel posits between client interests and client entitlements an appealing distinction without a practical difference?
It turns out that Wendel’s account of legal ethics hinges on his conception of lawyers as “political officials” (p.8), that is, as “quasi-political actors” (p.11) who exercise “moral discretion that is built into the lawyer’s role” (p.11), within procedures that satisfy “criteria of fairness” (p.87). But lawyers – lots of lawyers – also are politicians and, these days, American national politics is intractably partisan (as Paul Simon sings “politics is ugly”). These days, making the legitimacy of law contingent on politics strikes me as dicey. What is the everyday difference between lawyer/“gatekeepers” (pp.34, 190) who uphold fair procedural boundaries, and lawyer/politicians who skew legal procedures? For Wendel the distinction is major, and much rides on the dissimilarity. A fine line separates sophistication and sophistry, just as there is a hair’s breadth between finely honed reasoned argument and one-sided partial advocacy.
In sorting out these distinctions, I will hew closely to Wendel’s carefully crafted arguments, especially in Chapters 3 and 6. But let’s begin where he does, in Chapter One, with “The Standard Conception of legal ethics” (p.6; pp.29-31). Wendel writes:
The Standard Conception consists of two principles that guide the actions of lawyers, and a third principle that is supposed to inform the normative evaluation of the actions of lawyers.
1. Principle of Partisanship: The lawyer should seek to advance the interests of her clients within the bounds of the law.
2. Principle of Neutrality: The lawyer should not consider the morality of the client’s cause, nor the morality of particular actions taken to advance the client’s cause, as long are both lawful.
3. Principle of Nonaccountability: If a lawyer adheres to the first two principles, neither third-party observers nor the lawyer herself should regard the lawyer as a wrongdoer, in moral terms (p.6)
Wendel contrasts this prevalent (albeit much debated) conception of lawyer’s ethics to “ordinary morality” (pp.17-29). Ordinary moral inquiry “at its root . . . is about the immediate practical question of how one should act rightly, on grounds that are adequately justified, given that the interests of others are at [*350] stake” (p.17). Ordinary morality instructs a person to do the right thing. The Standard Conception instructs the lawyer to pursue her client’s interests. “Can a good lawyer be a good person?” Wendel quotes Charles Fried as asking (p.19; cf. n.11, p.219). Given the opposition between doing good as ordinarily understood, and the professional obligation to represent client’s interests, the answer to Fried’s question is: “not always.” The divergent views of ethics animating this answer have fueled antipathy towards lawyers from Shakespeare’s Henry VI (part 2) to, say, Johnnie Cochran or John Yoo in our own time. Seeking to address these discrepancies, Wendel proposes a third way that he argues mediates between ordinary morals, and the Standard Conception of practicing law ethically. His book aims “to defend the notion of a professional role that excludes ordinary moral considerations, but which is related in the appropriate way to general morality” (p.20).
In order to make his case for a third way, Wendel makes a key move. He revises the Standard Conception, elevating client entitlements, in lieu of client interests, “to a position of primacy” (p.31). How is defending entitlements distinct from defending interests, and what difference does the distinction make for ethical legal practice?
Chapter 3 speaks to the first part of this question. It is titled “From Neutrality to Public Reason” and is concerned to revise the second principle of The Standard Conception. Wendel’s move from neutrality to public reason advises lawyers to abandon their detached professional stance – a posture I would term moral agnosticism – and recast ethical behavior within what I would characterize as the realm of “wise restraints.” Of course, here I am quoting John MacArthur Maguire, Harvard Law Professor (1923-1957), who composed the declaration that, since the 1930s, Harvard Presidents have invoked at the Law School’s commencement: “You are ready to aid in the shaping and application of those wise restraints that make men free.” For Wendel, what renders law’s restraints “wise’ – that is, legitimate – is, if you will, law’s scaffolding. Wendel conceives of law in a manner that suggests imagery of a supporting framework, composed of transcendent reasoned rules, without which civil society cannot exist. In a telling passage, Wendel posits: “A legal system is legitimate if a citizen ought to respect the laws it enacts, even if she disagrees with the substance of the law. A legitimate law is one which by right creates obligations on citizens, such as the obligation to respect the law” (p.87). It follows from Wendel’s view that client entitlements are reasoned claims which carry weight because they are created by, and within, society’s duly constituted procedures. Here is a pastiche of quotes from two essential pages in Chapter 3, capturing the flavor of his argument:
The law enables people to transform brute demands into claims of entitlement. . . . [T]he law in fact establishes a means of living alongside one’s fellow citizens and treating them as bearers of rights. . . .[T]he law resolves disagreement in a way that takes seriously the claims of other citizens to have their preferences considered impartially, and not to have their voices count for less than others’ in determining what should be done in the name of society as a whole. Ignoring the law essentially takes back the respect that was extended to individuals by legal [*351] process, and replaces it with the exercise of raw power, or with the attitude that the individual stands apart from society as a whole and is, in effect, a law unto herself (pp.114-115).
By journeying from neutrality to public reason, lawyers serve clients by serving the edifice of law without which clients are merely Hobbesian combatants.
Why should one consider Wendel’s procedural ethics anything more than lawyers’ ethics – tenets only a lawyer could love? The answer depends on whether one finds Wendel’s reasons for doing so sufficient.
In part, his reasons bring us back to politics which, for Wendel, emphatically is the art of the possible, under prevailing circumstances. Wendel’s conception of politics is “admittedly thin” (pp.88, 91, 102), and “pretty grim” (p.91). His notion is profoundly modest, accepting, as it does, the central dilemma at the heart of what another law professor, Jeremy Waldron termed “the circumstances of politics” (pp.89-92). The Waldron/Wendel dilemma is that, in order to live together, quarrelsome people need some means to reconcile their differences. Politics is that means. Situating his understanding of politics amidst Waldron’s predicament, Wendel contends that laws deserve fidelity because they are products of somewhat fair, relatively equal, “adequately” (p.91) democratic institutions and procedures. He writes:
The ethics of lawyering does not depend on ideal conceptions of justice; rather, it is all about doing the best we can, through legal procedures, to respond to the situation of people who disagree but nevertheless need to live alongside one another in condition of relative peace and stability.
The aim of politics is to enable people to live together peacefully, cooperate on mutually beneficial projects, and to acknowledge the claims of others to be treated with respect and dignity. Laws and a legal system are essential parts of the political order of a society, because they establish the possibility of a particular kind of evaluation, in terms of some act [or] state of affairs being lawful. Being lawful means more than simply conforming to the will of a person or institution that possesses power. It means, instead, being validated in a particular, often complex way by procedures that have been put into place to enact norms that conform to requirements such as generality, publicity, and prospectivity (pp.91-92).
Are the reasons Wendel offers to undergird fidelity to law, based on muddling through and steeped in procedural logic, sufficient? Perhaps – perhaps not. Does his “craft” approach to lawyering enhance the prospects for ethical lawyering? I find Wendel’s analysis of lawyer’s “craft of making and evaluating legal arguments” (pp.14, 15) slightly more plausible.
Chapter 6, “Legal Ethics as Craft,” speaks to the second part of the question I posed above, the difference that defending entitlements makes for ethical legal practice. The difference involves justifying clients’ concerns with credible reasons. Wendel holds that fidelity to law “constrain[s] lawyers in their pursuit of client ends” (p.13) by ruling certain sorts of arguments in, and out, of bounds. Putting the difference glibly, fidelity to law instructs lawyers to practice their profession as a craft, without being crafty. Wendel’s ethical [*352] motto might be: Do not be “disingenuous” (p.186), fashion arguments that pass the “laugh test” (p.186). His watchwords might be: best practices and due diligence. “[C]raft should not be taken as [an appeal] to some mysterious faculty of intuitive judgment, or ‘I know it when I see it’ reasoning.’” (p.185). Wendel advises lawyers to exercise judgment:
[T]he exercise of judgment is fundamentally a community-bound process, in that it makes reference to intersubjective criteria for the exercise and regulation of judgment. “Objectivity in the law connotes standards. It implies that an interpretation can be measured against a set of norms that transcend the particular vantage point of the person offering the interpretation” (p.196, quoting Owen M. Fiss).
Specifically, Wendel counsels lawyers to exercise judgment about which reasons will, and will not, be deemed plausible within norms shared by their relevant interpretive community, comprised of legal practitioners (“lawyers, judges, subjects of legal regulation, and knowledgeable observers” [p.205]). The ethical lawyer pursues her craft by discerning which reasons her interpretive community considers legal, then deploying those reasons on behalf of her client.
Wendel’s book leaves me somewhat ambivalent. I feel a bit like one of those two-handed economists about whom President Harry S. Truman complained. On the one hand, Wendel’s approach to legal ethics intrigues me (albeit, in a fretful sort of way). His resolute practicality leads him to understand ethical legal practice in “worker-bee” terms, as lawyers conscientiously pursuing their craft, the stock in trade of which is making and criticizing arguments based on sound reasoning. His understanding strikes me as attractive – and commonplace: “. . . craft is what lawyers learn in law school . . . [it] is just what lawyers do (p.14). Accommodating legal ethics to what some refer to as “The Real World,” Wendel instructs lawyers to adhere to lawful procedures – procedures objective enough, if also fairly malleable – grounded in societal norms legitimized by political practices that, although deeply flawed, are likely to be the best we can do given exiting circumstances. If Jeremy Waldron is Wendel’s primary muse, Winston Churchill (p.91) is Wendel’s point of departure: “Many forms of Government have been tried, and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.” Wendel’s modest legal ethics may be the most we can expect.
On the other hand, Wendel’s legal ethics raises doubts. The sound legal reasoning at the core of his conception of ethical legal craft is hardly self-evident. Indeed, the very notion of “sound” is essentially contestable. One attorney’s sound reasoning is another lawyer’s speciousness. Second, Wendel’s minimal conception of democratic politics pegs law’s legitimacy to “adequately (not ideally) responsive” (p.91) institutional arrangements. By lessening expectations, Wendel lowers aspirations. Just as troubling, even by the procedural criteria he advocates, these days American national politics arguably fails the test of being passably [*353] responsive (for instance, see Dahl, Packer). Whether or not one can sever Wendel’s problematic procedural defense of legal procedures’ legitimacy from his conception of legal craft upon which it depends is a corollary concern. This concern pertains to yet another. Even while protesting that he is not “making a fetish of legality” (pp.3, 209), Wendel risks reifying the rule of law by setting it apart from human will. He seeks to negotiate a tightrope between divorcing law from its human authors and reducing law to politics by other means. Maintaining his delicate balance requires persuading readers that fidelity to law demands good faith crafting of legal arguments, grounded in rules deriving their relative autonomy from their origins in the “authoritative allocation of values” (Easton, emphasis added). Color me skeptical.
Dahl, Robert A. 2002. HOW DEMOCRATIC IS THE AMERICAN CONSTITUTION? New Haven, CT: Yale University Press.
Easton, David. 1965a. A FRAMEWORK FOR POLITICAL ANALYSIS. Englewood Cliffs, NJ: Prentice-Hall.
Easton, David. 1965b. A SYSTEMS ANALYSIS OF POLITICAL LIFE. New York, NY: Wiley.
Packer, George, 2010. “The Empty Chamber: Just How Broken Is The Senate?” THE NEW YORKER. http://www.newyorker.com/reporting/2010/08/09/100809fa_fact_packer .
Simon, Paul. 2011. “Love Is Eternal Sacred Light.” SO BEAUTIFUL OR SO WHAT. Beverley Hills, CA: Concord Music Group.
Waldron, Jeremy. 1999. LAW AND DISAGREEMENT. Oxford, U.K.: Oxford University Press.
© Copyright 2011 by the author, James C. Foster.