Law Quadrangle (formerly Law Quad Notes)


A robust common law tradition may be better than codes of ethics

This essay is abridged, with permission, from an article that appeared in the Southern California Law Review, March, 1996. A complete version is available by contacting the author.

Regardless of its specific content, any black letter statutory codification regulating lawyers' conduct will be flawed as an instrument of ethics for lawyers.This is the central thesis of this article. It is motivated by the idea that typical statutory prohibitions and permissions are likely to stunt sentimental responsiveness, a key feature of good ethical deliberation. Additionally, a certain technocratic mode of legal analysis heightens this tendency.

The technocratic lawyer is a kind of legal minimalist. She aims essentially for instrumental efficacy in accomplishing goals set by her client. A more honorable lawyer seeks, at minimum, to ensure that goals explicitly adopted by the client serve the client's genuine best interests. If one believes that good lawyering practically always demands good ethical deliberation, then it follows that the honorable mode of legal analysis should practically always dominate the technocratic one.

In this article I argue that to the extent that sound lawyering calls for healthy ethical deliberation, the technocratic style interferes. I also argue that statutory codes of lawyers' ethics elicit the technocratic style rather than the honorable one. Finally, I suggest that a common law approach would at least tend to reverse this effect.