Lawyer Shaming

The Lincoln Project’s effort to shame law firms working on behalf of the Trump campaign is only the most recent example of the public criticism, even vilification, directed against lawyers who represent unpopular clients. The legal profession is mostly unified in its response, which appeals to values such as due process, fairness, and the right to counsel. On the other hand, many scholars contend that lawyers should be morally accountable for actions they take as professionals, since everyone remains a moral agent, even when acting in an institutional role. This Article argues that, contrary to the near-unanimous view of lawyers, lawyers are subject to accountability for the clients they represent. In many cases, they have a complete normative defense. The social value of legality is a weighty, but not conclusive justification for providing zealous representation to even the worst clients. However, these role-based considerations do not displace ordinary morality from the field altogether. Ordinary morality persists, and in some cases can produce justified self-evaluations, or ascriptions to others, of regret, guilt, or shame. Building these “moral remainders” into professional ethics can help resist cynicism, amoralism, and alienation of professionals from the resources of morality.

a. Edwin H. Woodruff Professor of Law. I gratefully acknowledge the research funding provided by the Judge Albert Conway Memorial Fund for Legal Research, established by the William C. and Joyce C. O’Neil Charitable Trust. I am grateful to Emad Atiq, Greg Cooper, Tim Dare, Bruce Green, Doug Kysar, Daniel Markovits, Liz Peck, Becky Roiphe, Tony Sebok, Eli Wald, and Ekow Yankah for their helpful comments. This article received the 2021 Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility, awarded by the AALS Section on Professional Responsibility.

The full text of this Article is available to download as a PDF.