Vol. 10 No. 11 (November 2000) pp. 616-619.

THE PRACTICE OF JUSTICE: A THEORY OF LAWYERS' ETHICS by William H. Simon. Cambridge, MA: Harvard University Press, 1998. Paper (price). ISBN 0-674- 00275-X.

Reviewed by Thomas M. Hilbink, New York University Institute for Law and Society,

William Simon's PRACTICE OF JUSTICE is a thought-provoking argument for a justice-based system of legal ethics. In the book, Simon calls for the adoption of what he calls a "contextual view" of ethics, arguing that, "Lawyers should take those actions that, considering the relevant circumstances of the particular case, seem likely to promote justice" (pp. 9, 138). For Simon, justice is defined according to "the basic values of the legal system and subsumes many layers of more concrete norms" (p. 138). "Justice" and "legal merit" are used interchangeably. "The latter has the advantage of reminding us that we are concerned with the materials of conventional legal analysis; the former has the advantage of reminding us that these materials include many vaguely specified aspirational norms" (p.138).

Simon expects lawyers to act like judges, by which he means using a judge's style of analysis and decision-making rather than taking on a judge's substantive responsibilities. Under such a system, a lawyer must make an assessment of the underlying merits of the law, not just its letter, in deciding how justice would best be served in each case. Making a normative argument about what should guide lawyers' behavior, Simon writes that the clearer and more fundamental the relevant purposes of a given law, the more the lawyer should consider herself bound by them. The less clear and more problematic the relevant purposes, the more justified the lawyer is in treating the relevant norms formally, thus allowing an attorney to exploit the law's technicalities and ambiguities in order to arrive at a just end.

Simon's primary target is what he labels the "dominant view" of legal ethics. As the name connotes, the dominant view is that familiar to (and presumably adopted by) most attorneys. The lawyer is expected to pursue any (legal) goal of the client's though any arguably legal course of action, asserting any non-frivolous legal claim. Ethics codes describe such an approach as "zealous advocacy within the bounds of the law." Such a standard, Simon writes, "effectively says a lawyer can do everything for the client except what she can't get away with" (p. 42). Simon attacks what he believes are the two philosophies underlying the dominant view. First, he critiques the libertarian belief that if individual interests are pursued in each case, the public good will be served in the aggregate. Simon questions whether liberty should be the underlying value of the ethical system while also attacking the idea that liberty is better (or best) served by the "zealous advocacy" standard. Second, he dismantles the positivist idea that the lawyer is under no duty to look at the (non-legal) values underlying the law. Such a law/non-law dichotomy is not only untenable under modern jurisprudence, but also recognized as flawed by ethical codes themselves that

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give attorneys license to consider moral, economic, social and political factors, though stopping short of creating a duty to consider them (p. 43).

Simon also distinguishes his approach from what he calls the "public interest view." The public interest view holds that "law should be applied in accordance with its purposes, and litigation should be conducted so as to promote informed resolution on the substantive merits" (p. 8). One might also call this a "legal process" view. It generally holds that if proper procedures are followed, the proper outcome will result.

The book is replete with examples of how each theory works in practice. For present purposes, one will allow a basic understanding of the distinctions between the three. Under the dominant view an attorney can impeach a witness he or she knows to be telling the truth if impeachment benefits her client. Under the public interest view, an attorney should never impeach a truthful witness, even if doing so would prevent injustice, because such action undermines the procedural mechanisms in place to assure just outcomes according to law. Though sympathetic to this second approach, Simon rightly recognizes that procedure can be flawed and that sometimes the people assumed to be in the best position to assess the merits of a case (normally judges), will be unable (or fail) to fulfill their duty. In such a case, according to the contextual view, the burden falls on the attorney to mitigate procedural defects and deficiencies. "But to the extent that the lawyer cannot neutralize defects in the relevant procedure, she should assume direct responsibility for the substantive validity of the decision. She should form her own judgment about the proper substantive resolution and take reasonable actions to bring it about" (p. 140).

In other words, Simon argues that it would be acceptable to impeach a truthful witness in some cases but not others. A contextual view lawyer is expected to act so as to facilitate a decision on the merits by the adjudicator, assuming that sometimes counsel is often better informed on specific factual issues than the judge who is expected to check overzealous tactics. The contextual view envisages the lawyer's role as one that "compliments the generally accepted understanding of the judge's role. The lawyer assumes responsibility for vindicating substantive merits to the extent that the judge cannot be expected to do so. In other situations, her responsibility is simply to facilitate informed judicial decision" (p. 144).

Simon is hardly the first person to argue that lawyers should be guided by justice rather than by the interests of their clients (thus rejecting the idea that in pursuing client interests one is pursuing justice). Many lawyers in the 19th century advocated that lawyers strive to make Christian morality their guide in lawyering. Louis Brandeis is much admired - by Simon among others - for conceiving of the "lawyer as judge" (or, in Brandeis's terms, "lawyer for the situation"). Simon rightly argues that because much lawyering involved "private legislation" - shaping law through private action - attorneys have a duty to conform their actions to public goals and interests, and to justice (chap. 2). He is correct, as was Brandeis, that the nature of lawyering today is significantly different than it was when modern ethics codes arose around the turn of the 20th century.

Current approaches to legal ethics reflect the ideal of a country lawyer

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grounded in a discrete community whose cases generally ended up before a judge or other public figure. However, in a world where the vast majority of cases are settled out of court without judicial oversight and where most legal work is transactional rather than litigative. As a result, judges rarely get to fulfill the role expected of them in the current ethical system: to engage in a decision-making process that takes into account third party or public concerns. Further, lawyers no longer practice within insular, homogenous, and communities. In a pluralistic, (sub-)urban environment, there is neither a shared morality that guides lawyers, nor a sense of connection to those indirectly effected by a lawyer's actions. This is only heightened by the growth of "global" law practice, where lawyers in New York can take actions whose ramifications are felt by people around the world (but not on the Upper East Side). Thus, it is easily argued that lawyers should practice under a very different ethical regime. The problem is, then, what should that regime look like? How should we expect lawyers to act in the current context? Simon offers a valuable answer, to be sure, but it is one that leaves me with serious doubts.

Simon's approach to legal ethics reflects trends in late 20th century legal theory and philosophy. In the acknowledgements at the end of the book, Simon tips his hat to Critical Legal Studies and the "legal liberalism" of Ronald Dworkin. Dworkin's imprint is all over the pages and before I read the acknowledgments (where Simon admits to not being "completely convinced" by Dworkin's approach, p. 247), I found myself reacting to Simon's ideas much as I had Dworkin's. This reaction is one of anxiety, because while both authors offer seductive arguments, they assume an ability and devotion to rational discourse and decision making on the part of judges (Dworkin) and lawyers (Simon) that seems unrealistic. Both Dworkin and Simon believe that a common understanding of justice will result from a process of rational discourse and analysis. As Simon clearly points out, it is an aspirational concept, but even so, I remain skeptical of the idea that lawyers can or will ever engage in the sort of reasoning required to come to such conclusions.

My hesitance stems in part from the fact that I am not convinced that lawyers have the ethical or policy training to grant them the role (and power) that Simon suggests. Consider the fact that legal education as currently formulated does little to prepare lawyers to make substantive decisions about what is and is not just. As Professor Gerald Lopez once pointed out, if you really want to practice labor law you should understand something about the history, economics, and politics of labor apart from the law. Few practitioners do - a fact that is unlikely to change in the years to come without a massive reconception of legal education. Until lawyers are equipped to take on such "Herculean" responsibilities, Simon's suggestion to grant lawyers such power strikes me as premature. Even then, however, I wonder if the diversity of beliefs that serve to define people's notions of "justice" ever be overcome.

Despite my concerns, Simon deserves commendation for raising questions about lawyers, their actions, and their place in modern society. A few weeks ago, a friend (who is, like me, a newly-minted attorney) and I resumed an ongoing discussion of lawyering and ethics over drinks. I mentioned that I was reviewing Simon's book and described his argument to my friend. The discussion turned into what at times was a loud and passionate debate that lasted through dinner until the restaurant

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was all but closed for the night. Surely our passions were fueled somewhat by the wine, but Simon's book was at the center, forcing us to reconsider our thinking about how best to conduct ourselves in our careers. We didn't come to any definitive conclusions that night. Rather, we began a conversation that will surely continue. In the end, it only seems fair to judge Simon's book by the same standard. It hasn't closed the debate over legal ethics, but jump-started it by making a serious and important contribution to thinking about the practice of law. For that he merits great praise.