CAN A LAWYER BE HAPPY?[1]

Review Essay: William H. Simon, The Practice of Justice, 253 pp. (Harvard U. Pr. 1998), forthcoming in Criminal Justice Ethics

Since 1985, I have divided my professional life between teaching philosophy and practicing law in Northampton, Massachusetts. I am part of two excellent professional communities, the faculty of Smith College and the Hampshire County Bar. Making allowance for the usual sources of adult unhappiness--one gets divorced, has a drug or alcohol or gambling problem, a debilitating disease or injury, a child in jail, etc.-! -, we Northampton lawyers seem generally to be a happy lot. We are public-spirited, appearing disproportionately on the boards of local nonprofit corporations. I know of no local polls on the question but our fellow townspeople appear to hold us in good esteem. We get on well with one another-- perhaps rather better than do my academic colleagues. Our chief source of professional anxiety is attracting remunerative employment in a highly competitive labor market. Still, virtually everyone seems to make at least a passable living and some obviously prosper. Very few of us have burned out and left practice. When we talk shop we often complain about particular judges, our clients and occasionally other lawyers, but never about the value of our profession. We do not often indulge in abstract speculation. (My lawyer friends take no interest at all in my writings on jurisprudence.) But our demeanors do not bespeak inchoate unhappiness with our professional lives. We are evidently pro! ud of what we do.

That is my experience of the practice of law; and I suppose few readers of this review will be surprised. But William H. Simon would be--or else be disbelieving. He thinks we practicing lawyers suffer from an endemic moral anxiety, from nagging doubts about the value of our professional lives. He begins his book by claiming, "No social role encourages such ambitious moral aspirations as the lawyer’s, and no social role so consistently disappoints the aspirations it encourages." (1)[2] Why? His diagnosis in brief is that "lawyers in their conventional practices contribute knowingly to injustice." (4) It appears we think that we are bad people and that lawyering has made us so. Redemption is possible but remorselessly theoretical. We must begin by abandoning the Dominant View in legal ethics, according to which a "lawyer must--or at least may--pursue any goal of the client through any arguably legal course of action and assert any nonfrivolo! us legal claim." For, the "basic objection to the Dominant View is that it excessively attenuates the lawyer’s responsibility for her conduct and requires her to participate in injustice." (109) Salvation lies in our becoming "contextualists": our "basic maxim [must be] that the lawyer should take such actions as, considering the relevant circumstances of the particular case, seem likely to promote justice." (9) Giving no express promise, he leaves us to conclude that, were the Contextual View "institutionalized," we lawyers would find meaning in our work and be beset no longer by moral anxiety.

Since we Northampton lawyers evidently do find meaning in our work and don’t seem to suffer from Simon-style moral anxiety, I suppose that his thesis can’t apply to all practitioners. Still, I doubt that he would be much impressed by my experiential claim. He perhaps would suppose us afflicted by false consciousness: if only we weren’t so dull and com! placent we would be morally anxious! But should the reader credit my experiences or Simon’s arguments? Let us begin by examining the method by which he generates the empirical premises upon which he bases his moral recommendations.

I

How could it be proved that lawyers often knowingly act unjustly? A moment’s reflection discloses formidable obstacles. Lawyers’ professional behavior is hard to observe since most of it occurs in secluded contexts. Lawyers’ beliefs about the rectitude of their own conduct are for obvious reasons even harder to discern. And there are many, many practicing lawyers in many diverse locales who perform a wide range of "law jobs." Moreover, there are analytical difficulties in parsing the question. If the average lawyer wittingly acted unjustly in, e.g., one percent of his transactions, would that be relatively frequent or infrequent unjust behavior? What base line should we adopt ! for professionals generally, which we might use to judge whether lawyers are especially prone to acting unjustly as compared, e.g., with law or philosophy professors?

Simon does not address questions of practical epistemology, but rather deploys without explanation an almost a priori method in empirical studies. He presents no statistical data as to how often lawyers perceive injustice in their own or others’ professional behavior. (So far as I know there are no such data--and how would one interpret this information?) He cites no detailed anthropological studies of particular lawyerly cultures--no doubt for the very good reason that there aren’t any that can reliably establish generalizations about all lawyerly behavior. (Just as academic faculties and departments differ in moral caliber, so probably do the bars and sub-bars of varying locales.) Instead, he relies heavily upon literary works and philosophical treatises. (See esp. ch. 5.) He al! so employs what one might call a "case method" for generating empirical generalizations. He discusses reports of lawyerly behavior, trotting out arresting samples from the parade of horribles familiar to anyone who has read through a casebook or academic treatise upon legal ethics. Simon’s cases’ common thread is that in each lawyers strove zealously and often successfully to gain a result that either legally or morally their clients should not have obtained. He argues persuasively that in many of these cases the lawyers’ behavior comported with the canons of professional ethics. But he leaves a huge gap: he does not even attempt to show that his cases exemplify situations that frequently confront ordinary lawyers. If they are tokens of highly unusual event-types--as I believe clearly most of them are--, they provide no basis at all for ascribing a generalized moral malaise to the legal profession.

That exhausts the kinds of evidence Simon present! s that seem even colorably relevant to his key empirical contention that lawyers frequently indulge in knowing injustice. Evidently, it falls far short of an empirical showing. Indeed, the premise appears in Simon’s book more as a recurrent pronouncement than a conclusion from a clear set of arguments.

II

But look!--some readers may exclaim in exasperation--isn’t it just obvious that lawyers contribute to injustice? Many who go to lawyers want to be shielded from the consequences of their wrongdoing or have other bad ends. Hence, as David Luban put the point, "The lawyer’s role subjects him to moral risk because if the client’s aims are unjust the lawyer becomes an [active] accomplice in injustice. . . ." [3] Isn’t that enough to condemn the breed?

No--the question isn’t so easily settled. To begin, the complicity argument has very limited scope. It obviously doesn’t apply to the great many ! lawyers who work in areas of the law that are not usually adversarial. In conveyancing or estate planning and administration, clients virtually always have morally permissible ends; and the lawyer’s task is only that of realizing the lawful desires of her client. Even in adversarial situations often neither side advances an unjust claim, e.g., as in bankruptcy, when two equally innocent creditors dispute over whose claim has priority to the assets in the bankrupt estate. Secondly, since both in law and morals an accomplice is one who shares a wrongdoer’s guilty purpose, Luban’s argument applies only to a lawyer who has actual knowledge that her client’s aims are unjust. But only rarely could she know this. Clients usually want to be liked and admired by their lawyers, and so put on their best faces for us. How can one know when a client’s professed lawful and arguably just aim is a mere masquerade for wicked spite? How can one know what one’s clie! nt actually did in some past transaction when the disputants now proffer inconsistent statements about it? Clients often lie. (One may know this abstractly without knowing which lied.) I have had hundreds, mostly in criminal matters; and I cannot remember one who told me, "I’m guilty but get me off." My impression is that guilty people--these comprise the bulk of any criminal defender’s practice--confess to their lawyers at nearly the same frequency as they confess to the police. Those who confess to neither sense rightly that knowledge of the truth would constrain their attorneys to the detriment of their defense.

But what if a lawyer does have actual knowledge of his client’s bad aims? The complicity argument then establishes an unavoidable moral risk only when he cannot lawfully withdraw from representation. Such situations do arise but only infrequently. [4] (Clients very seldom wish to be further represented by lawyers who make strong moral c! riticism of their cause; and a lawyer must withdraw if fired by his client.) Nonetheless, suppose that some lawyers are upon occasion bound by law to represent clients whose causes they find morally repugnant. Why isn’t their legal obligation to work zealously to further their clients’ ends an adequate defense to moral complicity?

Simon doesn’t expressly advance the complicity argument as I have described it; but undoubtedly he would sympathize. He would reject the rebuttal I have fashioned: it depends upon the supposition that if lawyers are legally bound to zealous representation they will be morally bound as well; and Simon denies that lawyers have either a categorical or a prima facie moral obligation to obey the law. [5] Let us first examine the consequences of Simon’s making good his claim about lawyers’ prima facie obligations. He will then have shown something of great interest both to legal ethics and to political theory: viz.,! that in some unknown number of cases--but probably a significant amount--lawyers are morally required to be civilly disobedient. For, if a lawyer has no moral reason to obey the law governing her professional life, she must disobey whenever the balance of law-independent moral reasons so recommends. A lawyer’s legal duty to represent her clients zealously has no moral weight at all; it should not even enter into her moral calculations. Indeed, I interpret Simon’s Contextual View as implicitly advancing some such advice. (Otherwise, it reduces to the unhelpful platitude "Do what you think is right all things considered.")

The Contextual View is a most surprising doctrine. It will shock practicing attorneys: it implies that they should act to frustrate their clients’ ends whenever they believe that the opposing parties’ moral claims are superior. Since their legal duty to advance their clients’ interests has no moral weight, they must giv! e equal moral regard to everyone concerned. If advancing their clients’ interests will do unjust harm to opposing parties, they ought plainly to refrain: since there is no other morally relevant factor, they could then have no defense to moral complicity. Moreover, they should take such steps secretly. If clients know that their lawyer intends to sabotage their case they will seek out someone more sympathetic. Telling the client of one’s plan may keep the lawyer from sullying her hands but only at the cost of eventual injustice to the opposing party. [6] (Perhaps if a client directly asks whether his lawyer plans sabotage she will be bound by a natural duty of candor to tell the truth--but only if she determines that this duty outweighs the opposing party’s moral claim upon her.) If lawyers and judges came to believe anything like this, it surely would bring revolutionary changes whose contours are hard to discern by armchair speculation. I find I feel great d! istaste (moral anxiety?) at the mere thought of surreptitiously sabotaging a client’s case; but perhaps in time my sentiments would adjust.

Simon’s contextualism will also surprise political theorists, who since Plato have virtually all agreed that everyone has a strong duty to obey the law. This belief has been eroded in recent years. Many political theorists today hold that ordinary citizens have no prima facie obligation to obey the all of the laws that apply to them. [7] Nonetheless, the position has only recently been articulated and probably still is the minority view among the current jurisprudential elite. Those who now grudgingly concede that ordinary citizens may lack a prima facie obligation to obey the law will scoff at the suggestion that this could also be true of those who hold important roles in the legal system. They will observe that lawyers are officers of the courts and are sworn to obey the law. The Contextual View seems a brave ! departure from common wisdom, but one wonders on that ground whether it could possibly be true. [8]

However, Simon’s contention that lawyers have no categorical obligation of obedience is much less surprising. It is often argued--although this clearly is not the majority view--that legal systems contain a variety of role agents who lack categorical duties always to follow the laws governing their professional roles. The position was first and best set forth by Mortimer and Sanford Kadish, who classified many legal roles as "recourse roles," which

Those who find the Kadishs’ position attractive with ! respect of juries, police officers and judges will perhaps at Simon’s behest be willing to extend it to ordinary attorneys. But this extension has no revolutionary implications for legal practice. In particular, it does not imply that lawyers should often sabotage their clients’ cases. The Kadishs were at pains to emphasize that recourse role agents are not free morally to do whatever they think best without regardfor what the law requires. Role agents’ legal obligations impose a heavy prima facie obligation upon them; and they may depart from the law only "because [they have] a ‘damn good reason’ for doing so as determined by the role-ends [they are] committed to serve." [10] If lawyers occupy a Kadish-style recourse role, then since promotion of their clients’ interests is both a legal duty and an important end of their role, they should virtually always comply with their duty of zealous representation, except only to prevent extreme injustice! to third parties.

III

The salient premise of Simon’s Contextual View is that lawyers’ role obligations have no intrinsic moral weight at all. It has revolutionary implications both for practice and for legal theory. Nonetheless, he gives it only summary treatment: "You can’t say that this idea [of a prima facie obligation of obedience] is wrong, but it is not especially useful, and it can be misleading." (103) His principal criticism is that the obligation is objectionably abstract: what counts is not whether lawyers have a global prima facie obligation to obey the law but "whether there is a prima facie obligation to obey the local municipal court or the state Appellate Tax Board or the Ministry of Trade and Industry of some foreign country." (104) He offers no argument to support these conclusory averments.

Simon devotes many pages to his attack upon the categorical duty of obedience. ! He contends that the issue turns in the end upon an abstract question of jurisprudence: viz., whether Positivism or Substantivism states the correct definition of law. (77) He understands Positivism in a roughly Dworkinian way: [11] it comprises theories that insist upon a sharp distinction between law and morality and that define law in terms of institutional pedigree rather than normative content. (37, 79) Its foil, the Substantive Conception, comprises theories that deny Positivism and also assert:

(82) Simon’s account of Substantivism seems akin to Ronald Dworkin’s "crude description" of Natural Law Theory, viz., "any theory which makes the content of law sometimes depend upon the correct answer to some moral question." [12]

Simon conceives of Positivism and Substantivism as theory-types comprising diverse tokens, which differ in how uncompromisingly they hew to the basic tenets of the type. Although he rejects "radical" versions of each, he thinks it instructive to set out their "tendencies" respecting the question of obedience. A radical Positivist will think it plain that lawyers are subject to categorical norms of obedience, because:

(79) But she won’t think of these norms as a moral obligations because she accords normative force only to law. Indeed, Positivism’s "nightmare slippery slope" is that it "leads to compliance with jurisdictionally adequate but morally evil laws . . ." (83) Neither can Positivism be "moralized". Suppose that a Positivist tries to establish a categorical moral obligation to obey the law by arguing that its general recognition would have various good consequences (e.g., public order, fairness, promotion of democratic values, etc.). His argument can never achieve "categoricality." It can extend no farther than to those situations in which obedience of law is a necessary means to securing one or more of those consequences. It cannot show that there is a categorical moral obligation to obey the law, that we must always obey. Simon concludes that "full-strength" Positivism is implausible! because it "seems incompatible with any sense of legal obligation." (85)

In contrast, Radical Substantivism draws "no distinction between legal and nonlegal norms." (85) Since the Substantivist appeals to moral principle and not pedigree in determining what the law requires, he will always settle upon that interpretation of law which he finds most morally compelling. Hence, Substantivism has a ready answer to why law should be obeyed: "The duty to obey follows more or less straightforwardly from the definition [of law]." (85) The defect of Radical Substantivism is that "it tends to erode commitments to a stable institutional structure and calls up the threat of anarchy." (85) Nonetheless, Substantivism has legitimacy in our current legal culture, which is seen in the controversy over "nullification"--which he takes to comprise not merely a jury’s power to acquit in the teeth of the law but also judges’ power to declare legislation unconstitutional and! prosecutors’ power not to enforce the law when this would disserve the public interest. [13] (84) It has rather more legitimacy in popular culture: many literary heroes are attractive because of they disobey the law. (93-5) Finally, Substantivism can both explain why law is binding and why nullification is at times justified: "the conceptions of law most compatible with strong obligations are Substantive, and on a Substantive conception, obligation to ‘law’ may require violation of some legal norms in order to vindicate more basic ones." (106)

Simon disclaims defending Substantivism but he seems clearly to favor it. He favors selective legal nullification by lawyers and other legal actors; and he thinks Substantivism is more friendly to nullification than its jurisprudential foil. But in a puzzling turn, he suggests that moderate Positivism also is consistent with legitimate nullification, since "we should acknowledge that the practice of princ! ipled disobedience has strong support in our legal culture." (108) Hence, regardless of whether she is a moderate Positivist or any brand of Substantivist, a lawyer should believe that situations may arise when she may nullify the law that applies to her. But this is to reject the Dominant View in legal ethics, which is committed to categorical norms of obedience. (86) She should instead adopt the Contextual View and afford herself the possibility of professional happiness.

IV

Simon’s argument is a curious melange of insight and hokum. He is right to hold that the normative question of officials’ obedience to law turns in the end upon broader issues of jurisprudence. But the relevant questions do not concern definitions of law but rather the nature of morality and the proper role of ethical theory. (As a general rule, substantive philosophical questions never turn upon definitions, because one can never know which a! mong rival claimants is the correct account of a contested concept until one knows the right answer to every substantive question on which they differ. Resorting to definitions in philosophical argument is virtually always to beg the question.) He is also right to identify Substantivism and Positivism as the rival theory types; but he misunderstands their tendencies for the question of obedience. Finally, he is right that lawyers lack categorical obligations of obedience, even though his jurisprudential arguments can’t get him to that conclusion.

To begin, contra Simon, the usual tendency of radical Positivism is not to ignore moral claims, but is rather to posit a presumptive moral obligation of obedience to law. John Austin was as radical a Positivist as ever there was; but he recognized three distinct kinds of normativity: positive morality ("rules set and enforced by mere opinion"), positive law (the sovereign’s coercive orders), and true mo! rality (the commands of the Deity as revealed by Rule Utilitarianism). [14] He thought that these for the most part give coincident direction but that they can at times conflict. Positive law always binds. [15] But sometimes positive morality binds even harder, as e.g., as when gentlemen fight duels or when import taxes are generally ignored which were imposed "for the absurd and mischievous purpose of protecting a domestic manufacture." [16] True morality trumps all else:

Austi! n’s theory of true morality is "catechistic," by which I mean that he intended his utilitarian method to yield principles that everyone ought to adopt consciously as governing individual and collective conduct. [18] One such principle imposes upon everyone a general duty of obedience to law: "If we take the principle of utility as our index to the Divine Commands, we must infer that obedience to established government is enjoined generally by the Deity." [19] The duty isn’t "categorical" in Simon’s sense: it binds only presumptively, so that sometimes even outright resistance to government is morally justified. [20] Still, the duty binds universally--even when compliance with law isn’t necessary to achieve the usual good consequences that justifies acceptance of the rule. As a prototypical Rule Utilitarian, he thought that moral rules have presumptive force even when following them won’t maximize the general good. [21] Finally, Austin can’t be! found on Simon’s "nightmare slippery slope," inasmuch as he allows himself the theoretical resources both to explain why law is presumptively binding and why disobedience is sometimes justified. Hence, it seems that every kind of Positivism is consistent with occasional legitimate nullification of law, not merely its "moderate" brands.

The true tendency of Substantivism with respect of the duty of obedience is more complex, because it assigns different positions to citizens and officials. With regard to neither can the duty "follow more or less straightforwardly from the definition [of law]"(85)--unless the Substantivist counts as law only those norms that require us to perform natural duties or to refrain from acts mala in se. Every reasonable Substantivism must recognize that contemporary law also contains a comprehensive scheme of social regulation. Undoubtedly, most of it is very necessary for the public weal; but much also comprises, as Lord De! vlin once observed, "many fussy regulations whose breach it would be pedantic to call immoral." [22] For example, every theory of jurisprudence must allow that Massachusetts landlords who accept security deposits from residential tenants are required by law to keep them in escrow accounts in a bank located in the Commonwealth. [23] No determination of moral principle is required to discover this fact. And our moral intuition tells us--most Substantivists count as some sort of intuitionist--that this fact lacks any moral force. [24] A lessor who keeps a security deposit in a Vermont bank for reasons of convenience risks owing his tenant treble damages. His practice is imprudent but clearly isn’t any kind of moral wrong. Moreover, our intuitions tell us that mere illegality never has moral force for mere citizens. As Blackstone long ago observed, an act that is mala in se is not made more blamable by being also illegal. [25] Marital rape was always a great wrong; it ha! s not recently been made worse by having belatedly been made illegal. The tendency of ethical intuitionism, and hence of Substantivism, is to deny both that citizens have always a categorical obligation to obey the law and that they always have a prima facie obligation to obey. [26]

In contrast, our intuition is that the law does have intrinsic moral force for officials of the legal system. It is perhaps explained by the principle of fair play: while the exact contours of this duty are controversial, virtually all political theorists agree that those who intentionally advance their important interests within rule-bound cooperative schemes which are reasonably just have a strong prima facie obligation to comply with its rules. Everyone would also agree that officials who simply disregard the law--as distinguished from on occasion thoughtfully declining to follow it --have failed in their public duty and deserve removal and perhaps even punishment. Most people b! elieve too that when the law prescribes a bad result officials may be justified in departing from it. Ever since Henry Sidgwick’s critique of the morality of "common sense," intuitionists have been chary of proclaiming categorical or absolute moral obligations--which is why they all embrace W. D. Ross’s notion of a prima facie duty. [27] On the question of official obedience to law the tendency of intuitionism, and hence of Substantivism, is exactly the same as that of catechistic Positivism: viz., to hold that important legal roles are Kadish-style recourse roles.

Although Simon is right to believe that the leading theories of jurisprudence encourage some official nullification of law, he is wrong to think this implies that lawyers should change either their normative reasoning or their behavior. As Kadish-style role agents, lawyers have a strong prima facie obligation to fulfill their role obligations; and they may depart from them only for "a damn ! good reason". The Lake Pleasant Bodies Case is a legal ethics chestnut, familiar to virtually everyone who has dipped into a casebook or treatise. It is important for political theory because it offers a rough gauge of the moral weight of lawyers’ role obligations. Recall the facts: [28] Acting upon information gleaned from their client, two lawyers discovered and photographed the bodies of two more of his victims. They refused to disclose their discovery even in the face of a direct inquiry by a victim’s parent. The case raised strong passions. The lawyers’ conduct was strongly criticized in the press but also strongly supported. One was indicted for violating statutes requiring a decent burial for the dead and a report to the coroner of the death without medical attendance of any person; but the charges were dismissed on the ground that the lawyer-client privilege shielded his conduct. The dismissal was appealed but upheld by the intermediate appellate court.! The lawyers were subjected to a separate disciplinary inquiry but were exonerated by the Committee on Professional Ethics of the New York State Bar Association. Evidently, the Lake Pleasant lawyers were in a difficult moral situation. But this alone suffices to show that their role obligation of confidentiality had great moral weight. One test of a prima facie obligation’s weight is the strength of the moral reasons with which it can contend. The lawyers’ non-role obligations had obvious great force; but their moral situation caused controversy among reasonable people. Therefore, their obligation of confidentiality must have been of like weight. Were this not so, what they should have done would be obvious to us all.

V

Despite my lawyer friends’ polite lack of interest in my jurisprudential projects, I made some effort to engage them in this one. I talked at length with several, and I even conducted a rudimen! tary survey. My questionnaire first explained Simon’s "moral malaise" thesis and then posed eight questions. The first two inquired whether they believed the separate prongs of Simon’s definition of the Dominant View: viz., 1) A lawyer is morally required to pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous claim; and 2) It is never morally wrong for a lawyer to pursue any goal of the client through any arguably legal course of action and assert any nonfrivolous claim. The next three inquired whether they often, sometimes or never knowingly act unjustly; and the final three inquired whether they often, sometimes or never felt Simon-style moral anxiety.

I distributed the questionnaire to about twenty people; and I received eight responses. I claim no statistical relevance for these, but they did not confirm Simon’s empirical theses. Only one--a staff attorney in the local public defenders office-! -affirmed both prongs of the Dominant View; however, he denied ever acting unjustly in his professional life or feeling moral anxiety. Another affirmed the Dominant View’s second prong while denying the first; however, she too denied ever acting unjustly or experiencing moral anxiety. A third affirmed the first prong ("Simplistic but yes") but then somewhat puzzlingly denied the second. He admitted that he is fairly often unjust ("by my standards") and that he often feels Simon-style moral anxiety (although "not sure what this is but.") He ended gnomically, "In an imperfect world -- No solution or course of action is perfect." The remaining five respondents disavowed both prongs of the Dominant View. Of these, four denied ever acting unjustly or feeling morally anxious. The last admitted that she occasionally acted unjustly and felt moral anxiety despite her rejection of the Dominant View. Quite clearly, if my sample has any probative value, the frequency of lawyers’! unjust action and moral anxiety is independent of whether they believe in the Dominant View. I also collected a few remarks about Simon’s project. An attorney whose practice is confined to civil litigation and real estate concluded, "Simon can’t know many lawyers." An ex-prosecutor thought that Simon must not understand that lawyers aren’t forced to work for people whom they find distasteful. A judge’s response was, "All the lawyers I know think they are doing God’s work." No one expressed interest in reading Simon’s book--or this review. Evidently, Simon’s theses failed to engage them. His arguments seemed irrelevant to their lives.

It is this last fact that most condemns Simon’s book--indeed, his whole theoretical enterprise. Like John Austin’s Rule Utilitarianism, Simon’s project is catechistic. He thinks that lawyers hold a mistaken morality and he wants them to change. Indeed, this is the major project of m! odern theoretical legal ethics: nearly every expert wants to change lawyers’ morality. (They disagree about what it exactly now is and how it should change.) In her introduction to a law review Symposium upon Simon’s book, Deborah L. Rhode wrote:

Rhode describes a research project that promises only futility. (One does not wonder that she later writes, ! "After two decades of frequently frustrating work on bar regulatory reform, I can see why scholars would prefer to avoid the subject." [30] ) I daresay that very few practitioners will ever read Simon’s book or Rhode’s or any other academic critique of it . Neither the book nor any of the critiques are addressed to ordinary lawyers who shun abstractions such as Positivism or Substantivism. Their intended audience comprises legal academics and perhaps a few philosophers. But clearly, theoretical legal ethics can’t change practitioners’ attitudes and behavior if it can’t engage their attention. A new, better morality won’t just trickle down from the law schools--even if law professors could agree upon one. What exactly is the good of this academic enterprise? [31]

1. 1 Not to be quoted or cited without permission.

1. 2 Numbers in parenthesis in the text refer to pages in Simon’s book

1. 3 D. L. Luban, Smith Against the Ethicists 9 Law & Phil 417, 428 (1990-91)

1. 4 In Massachusetts, a lawyer may withdraw from any matter not pending before a tribunal if the client "insists upon pursing an objective that the lawyer considers repugnant or imprudent"--even if this causes a "material adverse effect on the client." Supreme Judicial Court Rule 3:07 (Mass.R.Professional Conduct & Comments): Rule 1.16(b) If the matter is pending before a tribunal she may always request its permission to withdraw on this ground, which will be routinely granted if the tri! bunal is satisfied that the client will suffer no material adverse effect. Id., Rule 1.16(c). A lawyer must withdraw if she is discharged. Id., Rule 1.16 (a)

1. 5 Simon does not bother to define either kind of moral obligation but I assume he intends their standard definitions: "S has a categorical (or absolute) obligation to do some act A" is usually understood to mean "S’s failure to do A is morally wrong;" and "S has a prima facie obligation to do A" is usually understood to mean "S has a moral reason to do A which is such that, unless S has some equally weighty or stronger moral reason to do not-A, S’s failure to do A is wrong." Note that since "oughts" usually entail "cans," the above definitions contain the implicit condition that S can do A. For more extensive discussion of these kinds of obligation, see my Is There a Prima Facie Obligation to Obey t! he Law?, 83 Yale L.J. 950 (1973)

1. 6 Oddly, Simon never takes up the question of what the civilly disobedient lawyer should tell her clients.

1. 7 For the most complete explication of this position, see K. Greenawalt, Conflicts Between Law and Morality (Oxford, Cambridge MA, 1987).

1. 8 I believe that Simon is alone in holding that lawyers’ role obligations have no moral weight. David Luban once held such a view. See, D. L. Luban, supra n. 3 at 431, But contra Simon he now contends that lawyers’ role obligations--as determined by the "natural law of lawyering"--have intrinsic moral weight. See, D. Luban, Legal Ideal and Moral Obligations 38 W&M L R. 255, 264 (1996).

1. 9 M. R. Kadish & S. H. Kadish, Discretion to Disobey: A Study of Lawful Departures from Legal Rules 35 (1973)

1. 10 Id.I at 62.

1. 1 See Model of Rules I, in R. Dworkin, Taking Rights Seriously, 14-45 (1977)

1. 2 R. Dworkin, Natural Law Revisited, 34 U. Fla L.R. 165 (1982).

1. 3 Simon thinks of nullification as a kind of legal interpretation. For a very different account of legitimate nullification, see my May Judges Ever Nullify the Law, 74 Notre Dame L.R. 1657 (1999)

1. 14 J. Austin, The Province of Jurisprudence Determined esp. 14, 24, 42-43 (ed. H. L. A. Hart, Weidenfeld and Nicholson, London, 1954).

1. 15 Id. 185.

1. 16 Id. 161.

1. 7 Id. 42.

1. 8 See, e.g., id. 116.

1. 9 Id. 53.

1. 20 Id.