Civil Disobedience as Legal Ethics: The Cause-Lawyer and the Tension between Morality and 'Lawyering Law'

The “standard conception” of American legal ethics is not primarily concerned with lawyers’ ability to promote either substantive justice or systemic change. Situations often arise in which a lawyer’s moral reasoning conflicts with the dictates of the codified professional ethics. Instead, legal ethics often provide lawyers with a discourse of nonaccountability and neutrality, allowing them to disclaim moral responsibility for the consequences of their actions as advocates. This Note investigates situations in which a lawyer’s moral reasoning diverges sharply from codified professional ethics. It also provides moral (if not legal) justification for lawyers’ expression of dissent in such situations, especially where the lawyer represents the vulnerable party in a grossly imbalanced power relationship. In doing so, this note probes the relationship between personal morality and professional ethics in the particular context of “cause lawyering.” For the cause lawyer, moral and political commitments are inextricably entwined with the practice of law. Because political morality is constitutive of the cause-lawyer’s professional self-conception, conflicts between “professional ethics” and personal morality are particularly acute—a cause lawyer faced with such a conflict may feel morally compelled to spurn the code of professional ethics; for example, a death-penalty abolitionist cause lawyer might choose to privilege this moral commitment over her duties to her client where the client “volunteers” for execution by refusing to exhaust his appeals. This Note proposes a philosophical justification for the cause lawyer’s choice to privilege political morality over the code of legal ethics. This theory supplements preexisting models of legal ethics by justifying cause lawyers’ occasional contravention of professional ethics in an effort to promote substantively just outcomes for less powerful clients. This argument makes a contribution to the scholarly discourse on professional ethics at the intersection of two bodies of literature: studies of cause lawyers on the one hand and legal ethics in general on the other. By justifying a course of action that sometimes privileges personal political morality over the code of ethics, it adds to literature on the relationship between legal ethics and personal morality. Moreover, it supplements the literature on the ethics of cause lawyering, which tends to focus on scenarios in which a lawyer’s devotion to a political or moral cause conflicts with her representation of an individual client. This Note instead addresses a broader set of ethical dilemmas: situations in which the mandates of an ethical code, including but not limited to the lawyer’s duties to her client, conflict with the lawyer’s vision of a substantively just outcome. Finally, this Note suggests reasons why a constrained exercise of civil disobedience by cause lawyers in the context of professional ethics might be a normatively desirable as a means of enhancing democratic deliberation and fostering the political influence of marginalized client populations.