Hofstra Law Review, Vol. 42, No. 4, 2014
Debates about the proper boundaries of a lawyer’s role are far from new. A fresh spin on this old debate, however, has emerged with the “positivist turn” in legal ethics theory. While in legal theory scholarship the label “positivism” carries various nuances and controversies, its use in the legal ethics context is, as a general matter, more straightforward and uniform. Broadly speaking, positivist accounts of legal ethics share a general view that the law owes its normative content to its ability to solve coordination problems and settle moral controversies. This view of the law, in turn, informs a particular view of the lawyer as governed in her actions by the legal entitlements at issue, as opposed to, for example, considerations of morality or justice writ at large.
Because the positivist account grounds a theory of legal ethics in respect for the law, it seems safe to assume that the law governing lawyers is properly viewed as playing a central role in this account. Stated otherwise, the same “fidelity to law” that lawyers must exhibit when, for example, interpreting tax codes to advise clients on structuring financial transactions is presumably also required when a lawyer is interpreting how the rules of professional conduct apply to her situation.
What has not been given much, if any, attention is how the law governing lawyers is different from other types of law and how this difference may be consequential for the positivist account. The law governing lawyers does not simply have the status of law (and therefore, assumes a central role in the positivist account), it also addresses the same subject matter—the proper bounds of lawyer behavior—that legal ethics theory itself purports to address. As a consequence, two of the “typical” questions or challenges lobbied at positivist accounts of law—what to do when: (1) following the law leads to unpalatable outcomes; or (2) the law at issue contains moral terms—give rise to some outstanding questions in the case of positivist legal ethics theory. Below, some very preliminary thought is given to how these puzzles might be “solved.” Ultimately, however, the main goal of this Idea is to highlight these issues as ripe for further consideration and critique.