The following appeared in Volume 98, Number 1 (Fall, 1998) of the APA Newsletters

Newsletter on Philosophy and Law

From the Guest Editor
The Loyalties of Lawyers

John Kleinig
John Jay College of Criminal Justice &
Graduate Center, CUNY

Zealous advocacy has always been troubling, since it has seemed to sanction the use of lawyers as hired guns. May—or must—a lawyer use any and every legally permissible tactic on behalf of a client, even if it is unseemly or damaging to others? Those most strongly supportive of zealous advocacy have frequently claimed that a lawyer’s first—only?—loyalty is to his/her client, a position that is sustainable by reference to the workings of the adversary system. Others have suggested that a more nuanced appeal to the adversary position would constrain zealous advocacy in ways that would substantially diminish the likelihood that it would sanction behavior very divergent from that which is acceptable in ordinary human intercourse. Not that the zealous advocate would lack privileges. Like the surgeon, whose scalpel may cut where others may not, the advocate may do what others may not. Nevertheless, the invasions of the surgeon and advocate are linked to professional roles that embody important moral constraints on what their practitioners may do.

In this issue of the Newsletter, various dimensions of the loyalties owed by lawyers are explored. John Kleinig reviews the issue of lawyers’ loyalties from the more general perspective of professional loyalties. Taking issue with the view that a lawyer’s first (or only) loyalty is to clients, he suggests that, as professionals, lawyers owe their first loyalty to the standards that govern their profession, and that this leads to a more differentiated account of their loyalties – not only to clients but also to the court and wider public. Though loyalty to professional standards may justify a strong loyalty to clients, it is moderated by other loyalties, delegitimizing some of the more egregious cases of client advocacy. In response, Michael McChrystal believes that the idea of a shared professional vision is chimerical, and that if there is any shared value, it is the very one that Kleinig finds so problematic, namely, zealous advocacy. A solution to the problems of an overly client-centered loyalty is more profitably found in a re-examination of the scope of client loyalty than in a shifting away from it to some non-existent communal norm.

In a second paper, Richard Bronaugh raises the issue of a lawyer’s loyalties via the moral entitlements of a guilty defendant. Does such a defendant have a moral duty to confess? And if, as he thinks, the defendant ought ceteris paribus to confess, does the defendant who refuses to do so have any moral right to enlist the services of a lawyer to defend him? He thinks not. Where, then, does this place the lawyer who knows that the defendant is guilty of a malum in se? Where do the lawyer’s loyalties lie? Bronaugh suggests that because the moral value of loyalty depends on the ideal it serves, and because the lawyer has dual loyalties – to the court as well as the client – the lawyer is justified in assisting those who refuse to confess "when and only when this is useful to the morally proper ideals of the criminal justice system." In his response to Bronaugh, Sanford Levinson adverts to some subtleties in Bronaugh’s underlying moral claims. Are those whose misconduct is undiscovered duty-bound to confess? More to the point of a lawyer’s moral duty, he suggests that Bronaugh’s appeal to the ideals of the criminal justice system will not serve to distinguish what McChrystal calls "client-centered" legal ethicists (Monroe Freedman) from those who are "justice-centered" (David Luban). Yet it is just the tension between these two approaches that lies at the heart of the debate about lawyers’ loyalties. Levinson thinks it instructive, moreover, to compare the privileged character of lawyer-client relationships with other relationships that are given some kind of privileged status. Such reflection may cast light on both the rationale for, and the limits that should be observed in, privileging lawyer-client relationships.

To assist readers in pursuing the issue of "lawyers’ loyalties" for themselves, a modest bibliography has been included.

Table of Contents

apa5.gif (1212 bytes)Return to the Index for Volume 98 Number 1 of the APA Newsletters