Institutional and Individual Justification in Legal Ethics: The Problem of Client Selection

In the second round of the famous Freedman-Tigar debate, Monroe Freedman writes that “[i]t is proper . . . to publicly challenge lawyers to justify their representation of particular clients.” Note the word “particular”—the challenge here is on a case-by-case basis, and is not aimed at the macro-level decision to become a lawyer. Once a lawyer has opted to represent a client, however, the lawyer cannot be criticized in moral terms for employing unsavory tactics in furtherance of the client’s lawful ends. The reason for exempting a lawyer from moral criticism for actions taken while representing a client are familiar systemic reasons: Lawyers need space to engage in creative advocacy, which may open up possibilities for legal change, the American constitutional adversary system helps preserve a free society in which individual rights and dignity are respected, lawyers must have independence from the state if they are to protect individual dignity, adversarial litigation is an effective method of ascertaining the truth, and a vulnerable client should not have to worry that the lawyer might rat him out to the authorities.

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