Impartiality
However, one thing strongly differentiates judges from other lawyers, and that is their role in the adversary process itself. Parties offer reasoned arguments in an adversarial debate, and judges, informed by hearing the most powerful arguments for conflicting interpretations of the law, decide among them and offer reasons why they accepted some arguments and rejected others.
The job of the judge is to render an impartial decision.Impartiality is the key. It explains the privileged position of judges as expositors of the law. Advocates have a professional obligation to argue for whatever interpretation of the law most favors their clients. They are professional spinmeisters, and the formal rules of the profession permit them to argue any interpretation of law that passes the laugh test.[275] Indeed, adversarial ideology maintains that judges can do their interpretive job properly only if they hear the most forceful arguments on all sides, in an unvarnished form. Thus advocates may actually be duty bound to offer legal interpretations so one-sided that they defy good sense and good judgment (up to the brink of frivolity).
But lawyers are not always advocates. Equally important is the lawyer’s role as advisor. Again we return to the paradigmatic legal moment, the consultation between lawyer and client in which the client explains a problem or asks for advice, and the lawyer explains the law. Here, the rules of ethics require lawyers to offer independent, candid advice, not advocacy for a position - advice about what the law permits and requires, even if the news frustrates or infuriates the client.[276] In other words, lawyers in the advisor’s role lie under the same obligation of impartiality that judges do.
This stark contrast between the lawyer’s role as advocate and as advisor makes sense once we understand the structural difference between the roles.
In an open, adversary proceeding, the advocate makes the strongest arguments on behalf of the client’s legal position because if she doesn’t, no one will; and an advocate for the other side can counter the exaggerations. In a confidential conversation between lawyer and client, the same argument works in reverse: if the lawyer doesn’t tell the client that what he plans is unlawful, in many instances nobody will.[277] Law enforcement is always spotty, and in innumerable areas of social and commercial interaction it is easy for clients to fly beneath enforcement’s radar for years on end. Over a vast range of legal business, the conversation in the lawyer’s office represents the last line of defense against client wrongdoing.Often, clients come to lawyers because they want the lawyer to bless their endeavors - sometimes, with maximum cynicism, in order to create an advice-of-counsel defense for themselves - or to write an opinion letter stating that a dubious transaction is entirely proper. The temptation for the lawyer to play ball with the client is great: as Elihu Root said, “The client never wants to be told he can’t do what he wants to do; he wants to be told how to do it, and it is the lawyer’s business to tell him how.”[278] As a general proposition, Root’s adage is right: the lawyer’s job is to help his client, not simply wag a censorious finger in the client’s face. Nevertheless, there will be times when what the client wants to do is illegal and wrong. In such cases, lawyers must assume the (admittedly distasteful) gatekeeper’s role. That is why the advisor’s role requires the moral toughness to maintain independence and candor. Otherwise, there would be little social purpose behind creating confidentiality rules to encourage lawyer-client conversations. Without independence and candor, the rules would do little more than screen conspiracies, or permit clients and lawyers to play responsibility games - the client insisting that the lawyer had approved his actions and the lawyer insisting that he was simply doing what the client asked.
To be sure, there are no reported cases of a lawyer disciplined for violating MR 2.1, the candid-advice rule.[279] But that has nothing to do with the merits of the rule. It has to do with the fact that the cases seldom come to light, and when they do, no one has an incentive to litigate them. Attorney-client advice is shrouded in confidentiality; clients are seldom in a position to know when their lawyer’s advice has not been candid; aggrieved clients are more interested in obtaining malpractice damages than in filing grievances; and in the rare case when a lawyer’s bad advice becomes an issue - for example, when a receiver takes over a bankrupt corporation and goes after the lawyers who colluded with the old management - there are almost always easier-to-prove and more serious charges to file.
The lack of reported cases has perhaps led commentators to underrate the importance of the requirement of independent, candid advice. But, as my earlier observation about the confidentiality rules suggests, the independent, candid-advice requirement plays an often overlooked central role in conventional legal ethics. One of the major puzzles in legal ethics has always been how to justify the lawyer’s duty of confidentiality. After all, on utilitarian grounds it’s a bad bet for society because it allows crooked clients to hide the evidence so frequently - as witness the forty-year history of Big Tobacco stonewalling the facts via their lawyers.[280] Given this embarrassing fact, how does the profession justify its sacred norm of confidentiality? It does so by arguing that the lawyer needs confidential information
to advise the client to refrain from wrongful conduct. Almost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct. From experience, lawyers know that almost all clients follow the advice given, and the law is upheld.67
In other words: confidentiality is a good bet for society only because we can count on lawyers to give good advice on compliance (and on clients to take that advice).68 If the lawyer doesn’t give independent, candid advice, this entire argument, and indeed the whole edifice of confidentiality, comes tumbling down.
What about the fact that the lawyer is working for the client? The client retains her to solve problems, not to deliver impersonal pronouncements about law, client problems be damned. That is the point of Elihu Root’s adage: the client wants to be told how to do what he wants to do, and it is the lawyer’s job to tell him.
Well, not exactly. The lawyer’s job is to tell the client lawful ways to get what he wants. If there are none, the lawyer will have to break the unwelcome news. If the lawyer believes that the law is unjust or immoral, she ought to explain why to the client. Official ethics rules forbid her from advising the client to break the law even when it is unjust, but ultimately the lawyer’s own conscience must be the guide. Here we might think of the model of civil rights movement lawyers discussing with Martin Luther King, Jr., whether he ought to obey the injunction not to engage in the Birmingham civil rights march of 1963. Just as King’s conscience led him to violate the injunction, his lawyers’ consciences may well have led them to violate the professional rule against counseling disobedience. If the lawyer counsels disobedience, of course, she becomes morally and legally complicit with law-breaking and may well risk her license or even her liberty. Presumably,
grounds. Louis Kaplow & Steven M. Shavell, Private Versus Socially Optimal Provision of Ex Ante LegalAdvice, 8 J. L. Econ. & Org. 306 (1992); Kaplow & Shavell, LegalAdviceAboutActs Already Committed, 10 Int. Rev. L. & Econ. 149 (1990); Kaplow & Shavell, LegalAdviceAbout Information to Present in Litigation: Its Effects and Social Desirability, 102 Harv. L. Rev. 567 (1989); Shavell, Legal Advice About Contemplated Acts: The Decision to Obtain Advice, Its Social Desirability, and the Protection of Confidentiality, 17 J. Leg. Stud. 123 (1988).
67 Comment [2] to Model Rule 1.6.
68 There is a lot of wishful thinking built into this argument. If the client is a Holmesian bad man, who cares only about sanctions, and the lawyer informs the client that the size or likelihood of sanctions is lower than the client’s expected gain, the advice will encourage the client to violate the law, even if doing so turns out to be socially harmful.
Shavell, Legal Advice About Contemplated Acts: The Decision to Obtain Advice, Its Social Desirability, and the Protection of Confidentiality, supra note 66, at 131-36 (1988). however, there are times when complicity with law-breaking is the right thing to do.[281] But acknowledging this point only serves to emphasize that when law-breaking and complicity with it are not a matter of conscience, lawyers must advise their clients against it, and rightfully deserve criticism, perhaps punishment, when instead their advice includes a wink at client wrongdoing or collusion with it.Ultimately, then, the obligation of impartial legal judgment matters just as much for lawyer-advisors as it does for judges. It follows just as certainly from examining in functional terms the roles lawyers and judges play in the legal system. Nothing about the judge’s impartial role should lead us to focus on judicial decisions rather than on the decisions lawyers make when advising clients about the law.