William H. Simon is Kenneth and Harle Montgomery Professor of Public Interest Law at Stanford University.
Review
"Though slender and unpretentious, William Simon's new book, The Practice of Justice, packs a wallop. Aiming
at nothing less than a radical rethinking of lawyer's ethics, it proposes a new conception of our professional
responsibilities and challenges us to examine critically the conventional norms of our professional role. Along
the way, it explores the scope and underpinning of our loyalty to clients, our obligations to protect the rights
of third parties and our duty to promote justice...Simon's writing is lucid, well-organized and jargon-free...The
cogency of [his] critique of the dominant view...shakes the grounds on which we currently practice...Thus, Simon's
work is profoundly unsettling, even disorienting, both intellectually and emotionally. Therein lies its enormous
value."
--James M. Altman, New York Law Journal
"William Simon is the George Orwell of the legal profession, a fearless, bluntly honest and clear-sighted
observer whose sharp critique of lawyers' practices arises from his deep attachment to their ideals. Simon's book
is clearly one of the most important statements of the aims, purposes, and practical ethics of law practice ever
to have appeared in this legal culture. His ambition is to reconceptualize the entire subject, to give a thorough
exposition and critique of the ethical views that currently permeate law practice in this society, and to put forward
a fully-fledged alternative. The special power and appeal of Simon's approach consists in that he views legal ethics
neither as solely tied to specialized rules or roles nor as a branch of personal morality, but as necessarily and
intimately connected with the justice-serving goals of the legal system. His analysis of how lawyers can cope with
the inevitable complexities and ambiguities of a legal system shot through with conflicting purposes is especially
brilliant. Unlike so much writing on professional ethics, Simon's is neither naively idealistic nor cynical and
demoralized: it is impressive because his views are grounded in considerable experience, personal and vicarious,
of how lawyers actually behave--every point is illustrated by thickly described examples of real practice situations--and
are also linked to basic conceptions of jurisprudence and social theory. It would be hard to find a better illustration
in legal literature of how theory can inform and structure inquiries into practice, and the knowledge of practice
in turn help to qualify and amplify theoretical insight. Original and unconventional, Simon's work challenges almost
all of the prevailing orthodoxies of legal ethics. Whether or not lawyers are ultimately convinced by Simon's efforts
to reconstruct legal ethics on a foundation of lawyering as a justice-seeking profession, if they read his work
carefully they will never be able again to think about their work in the comfortable old formula of zealous advocacy
in an adversary system."
--Robert W. Gordon, Yale Law School
Harvard University Press Web Site, October, 2001
Summary
Should a lawyer keep a client's secrets even when disclosure would exculpate a person wrongly accused of a crime?
To what extent should a lawyer exploit loopholes in ways that enable clients to gain unintended advantages? When
can lawyers justifiably make procedural maneuvers that defeat substantive rights? The Practice of Justice is a
fresh look at these and other traditional questions about the ethics of lawyering. William Simon, a legal theorist
with extensive experience in practice, charges that the profession's standard approach to these questions is incoherent
and implausible.
At the same time, Simon rejects the ethical approaches most frequently proposed by the profession's critics. The
problem, he insists, does not lie in the profession's commitment to legal values over those of ordinary morality.
Nor does it arise from the adversary system. Rather, Simon shows that the critical weakness of the standard approach
is its reliance on a distinctive style of judgment--categorical, rule-bound, rigid--that is both ethically unattractive
and rejected by most modern legal thought outside the realm of legal ethics. He develops an alternative approach
based on a different, more contextual, style of judgment widely accepted in other areas of legal thought.
The author enlivens his argument with discussions of actual cases, including the Lincoln Savings and Loan scandal
and the Leo Frank murder trial, as well as fictional accounts of lawyering, including Kafka's The Trial and the
movie The Verdict.
Table of Contents
Introduction
An Anxious Profession
The Moral Terrain of Lawyering
The Dominant View and Alternatives
A Preview
False Starts
A Right to Injustice
The Entitlement Argument
The Libertarian Premise
The Positivist Premise
Libertarianism versus Positivism
The Problem of Retroactivity
The Problem of Private Legislation
Conclusion
Justice in the Long Run
Confidentiality
The Adversary System and Trial Preparation
Identification with Clients and Cognitive Dissonance
The Efficiency of Categorical Norms
Aptitude for Complex Judgment
Conclusion
Should Lawyers Obey the Law?
Lawyer Obligation in the Dominant View
Positivist versus Substantive Conceptions of Law
The Pervasiveness of Implicit Nullification
Some Clarification about Nullification
Nullification versus Reform
Tax versus Prohibition
Determination versus Obligation
A Prima Facie Obligation?
Divorce Perjury and Enforcement Advice Revisited
Conclusion
Legal Professionalism as Meaningful Work
The Problem of Alienation
The Professional Solution
The Lost Lawyer
The Brandeisian Evasions
Self-Betrayal
Conclusion
Legal Ethics as Contextual Judgment
The Structure of Legal Ethics Problems
Some Objections
The Moral Terrain of Lawyering Revisited
Is Criminal Defense Different?
Contested Issues
Weak Arguments for Aggressive Criminal Defense
Social Work, Justice, and Nullification
The Stakes
Conclusion
Institutionalizing Ethics
A Contextual Disciplinary Regime: The Tort Model
Restructuring the Market for Legal Services
Conclusion
