Law in Contemporary Society
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?

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;

(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

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”).

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.

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.

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.

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).

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

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.

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.

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.

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.

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

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.

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.

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.

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.

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).

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 for reform (e.g. prohibitions against euthenasia) require expenditure.

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 conclusion that an attorney’s lawbreaking should be an action of last resort.

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.


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r6 - 08 Jan 2010 - 22:48:50 - IanSullivan
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