The nightmare and the noble dream
The lawyer-client conversation is a morally fraught moment in which the legitimacy of the legal system is, at least in microcosm, up for grabs.[284] Some years ago, Austin Sarat and William Felstiner studied 155 taped conversations between divorce lawyers and their clients, and concluded that a great deal of legal advice consisted of more or less cynical realism about the large discrepancy between what the law says and what clients could really expect from the system.[285] They cautioned that “the law talk of the divorce lawyer’s office may be partially responsible for the common finding that people who use legal processes tend, no matter how favorable the results of their encounter, to have a less positive view of the law than those with no direct experience.”[286] Though the lawyers’ cynicism is somewhat troubling, it is hard to fault them for warning their clients that the system might not deliver everything to which they are entitled.
Perhaps the system doesn’t deserve a better reputation than the lawyers convey.The Nightmare vision of legal advice - to borrow Hart’s image - is not one of cynical lawyers making their clients cynical. Rather, it is the suspicion that candid, independent advice is often, or always, an illusion. One version of the Nightmare is that lawyers dominate and manipulate clients, either to advance their own agenda or to line their own pockets.[287] More drastically, William Simon has suggested that the entire idea of client autonomy is an illusion, because the process of legal advising shapes an often inchoate ordering of client preferences.[288]
A second version of the Nightmare concerns lawyer complicity and capitulation to clients, rather than lawyer domination of clients. This is the concern I focused on earlier in this chapter, when I discussed Elihu Root’s adage, and the fear that lawyers - economically dependent on their clients or in some cases ideologically aligned with them - will treat the advisor’s role like that of an advocate, and spin the law to support whatever the client wishes to do.
Everyone who studies American business scandals is aware of how much this goes on. Rotten deals, dummy companies, and smoke-and-mirrors accounting rest on a slick foundation of legal opinions, giving new and unsavory meaning to Isaiah’s prophecy that the crooked shall be made straight - or at least made to look straight. But the same thing goes on in government, a fact that emerged dramatically in summer 2004, when it was revealed that two years earlier the Department of Justice had written a spectacularly bizarre legal opinion to legitimize harsh interrogation techniques bordering on torture. In rapid succession, opinion after dubious opinion on the treatment of War on Terror detainees leaked out of the Departments of Defense and Justice, eventually suggesting that at the highest levels of government legal advice has been subsumed into advocacy for the party line. These memos, and the moral failure they represent among elite government lawyers, will form the subject of the next chapter.
What of the Noble Dream? Hart’s phrase quite deliberately exploits both meanings of the word “dream,” as ideal and as fantasy. For him, the Noble Dream of judge-centered jurisprudence is the ideal and fantasy of a judicial rationality that can eliminate all gaps in the law. Ultimately, Hart believed, both the nightmare and the noble dream in judge-centered jurisprudence are illusions.[289]
Is there a Noble Dream in a jurisprudence centered on the lawyer-advisor? Put most generally, it is the Parsonian vision of lawyers as independent intermediaries between private and public interests, translating client problems into the terms of the law, and presenting the law to the client in intelligible form. As the argument so far should make clear, however, my stance toward the Noble Dream differs from Hart’s. I believe that it is no illusion. If the possibility of the independent legal advisor is an illusion, so is the possibility of law, understood as anything more than directives in a society of bad men and sheep.
But, though it is no illusion, in several obvious respects the Noble Dream falls short of reality and can serve as no more than a regulative ideal. First, as I suggested earlier, the great inequality of access to lawyers - nearly one in six Americans has no realistic access at all - skews and distorts the Noble Dream in nightmarish directions.[290] If only the well-off have legal advice, the law becomes hard to distinguish from a system of subordination like the mafia legal system. Second, the very feature that makes lawyers intermediaries between private and public interests, namely that they represent private parties, implies economic dependence on clients that undermines the incentive to give clients candid, independent legal advice. Third, well- understood psychological pressures are likely to push lawyers’ views in the direction of their clients’ interests, making genuine independence less likely.[291]
These are practical and institutional problems, and this is not the place to consider practical and institutional solutions to them. But they are also moral problems lawyers constantly confront. They are the everyday subject-matter of legal ethics, as (for that matter) the Nightmare scenarios of lawyers dominating clients and lawyers capitulating to them are as well. If my argument holds water, these, far more than the preoccupying problems of judicial decision-making, are fundamental to the legal system.
In his most systematic book, Dworkin refers to the rule of law as “Law’s Empire,” suggesting a vast system of governance with Judge Hercules on the imperial throne. A better metaphor than law’s empire is law’s landfill, the dregs of legal authority contained in the millions of lawyer-client conversations on which our actual legal civilization is erected.[292] Often, no doubt, the conversations are banal or conniving or both; in any case, they are largely invisible. But unlike Hercules' pronouncements, the advice of lawyers to clients involves genuine interaction, conferring the legitimacy necessary to make law out of the “gunman writ large.” For better or for worse, their morality is the law's morality.[293]