The following paper sets out to investigate two prompts: is it ever ethically permissible for attorneys to violate the law without legally recognized excuse or justification? If yes, what considerations encourage the exercise of restraint? In an attempt to provide a tentative answer, it investigates both general and attorney-specific rationales for obeying the law.

Two arguments are offered: (1) system- and cause-legitimacy rationales, while compelling on some level, fail to provide a sufficient explanation of why attorneys should categorically refrain from violating the law; (2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantage lies in lawful recourse and (b) the lawyer’s license, as an instrument conferring unique ability to effect change with words, receives and preserves its power through its users’ adherence to the law. While not a categorical bar to disregard of the law’s letter, the attorney-as-privileged-actor argument is a persuasive justification for the exercise of extreme restraint.

System Legitimacy and an Impressionable Public

The “system legitimacy” argument is the most common and challengeable rationale for adherence to the law. Criminal-law theorists provide two arguments which neatly outline this view. First, the rule of law establishes a moral balance in society; by placing restraints on society’s members it provides absolute gains in the form of life and bodily security (Herbert Morris “Persons and Punishment”). Secondly, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).

Violations are an affront to both our morality and social order, which need be punished so as to restore system integrity and discourage similar challenges. Lawbreaking by those most familiar with and proximate to law’s operation is especially egregious since it will embolden violations by those less-inclined to live by its letter.

The system legitimacy argument rests on a challengeable presumption that any violation, if unpunished, will snowball, spur relativism, and gut the law’s moral force. For example, it is unclear that the actions of an attorney who believes the human desire to create is a sufficient motivator of investment and thereby violates patent laws will catalyze violation of malum in se offenses (e.g. forcible rape). It is plausible that, at most, principled violations of attorneys are likely to catalyze challenges to already questionable malum prohibitum offenses.

To be fair, this “gold class” argument is undermined by ubiquitous, unprincipled abuses of power which lend added weight to distrust of discretion and the belief that: the “fair administration of justice requires that no man can be a judge in his own case, however exalted his station, however righteous his motives” (Stewart, Walker v. City of Birmingham).

Cause Legitimacy and the Vulnerable Client

The “cause legitimacy” argument asserts that zealous advocacy not only requires professional competence but respectability. Essentially, attorneys who violate the law cast a pall on the cases and delegitimize the causes of their clients. This argument, like the system legitimacy argument, is subject to challenge.

As advocates, attorneys need not appear as neutrals. Principled violations for a cause do not necessarily “reflect adversely on the lawyer’s honesty, trustworthiness, or general fitness as a lawyer” (ABA Model Rules of Professional Conduct Rule 8.4(b)). Rather, they may increase the credibility of the advocate since he possesses a principled interest in his client’s position.

Figures like Keith Stroup, Chief Legal Counsel for NORML and a self-proclaimed recreational cannabis user, would likely argue that his violation actually increases the legitimacy of his advocacy, since he is an otherwise upstanding member of the society (insert Wikipedia entry). At best this argument provides a lukewarm argument for restraint; it suggests that violations by counsel may or may not jeopardize a client’s cause.

The Lawyer as Privileged Actor: Compromise, Comparative Advantage, and Self-Interest

The “lawyer-as-privileged-actor” argument asserts two compelling rationales for attorney abidance by the law: (1) grant of the law license is an act of compromise – a bargained for exchange; (2) compliance with the law is the source of the attorney’s power. To the first, the lawyer occupies space proximate to the machinery of the state; she has access to unique modes of communication, while her training in the language of “transcendental nonsense” enables “effective” communication of her bottom-line.

The lawyer’s comparative advantage, then, lies not in unlawful, potentially destabilizing agitation but in reformism. Where the direct action of the Haywoods of the world piques the attention of the state, attorneys render its machinery responsive to the ends sought.

Further, the law requires that its citizens exhaust judicial recourse before taking unlawful action [see (1) the lack of necessity defense for indirect civil disobedience: U.S. v. Schoon; (2) collateral bar rules: _Walker v. City of Birmingham_]. By accepting the privileges of the law license, attorneys agree to exhaust all lawful recourse before taking additional measures. Since attorneys possess unique skill-sets and modes of access to the state, the need to disregard the law and resort to radical means is less compelling; necessity claims should be evaluated under a rigid standard.

Lastly, the source of attorney’s power to effect change with words lies in her legitimacy. Citizens trust attorneys to handle society’s most consequential dilemmas largely because their agency is steeped in and bounded by established principle, precedent, and doctrine (ChangingSocietyUsingWordsTalk? ). An attorney’s violation of the law thus erodes the structure which empowers her in the first-place. Principled violation of the law then constitutes a short-sighted effort at real and lasting change.

When Lawful Recourse Runs Out

The preceding analysis identified three rationales of varying persuasiveness for why attorneys have an ethical obligation not to violate the law. Each view aims to convince its reader of the need for a categorical prohibition against the law’s violation. The closest they come to such a principle, individually or collectively, is the uncontroversial conclusion that an attorney’s violation of the law should be an action of last resort.

The tougher cases (e.g. whether to represent a slave-owner in a fugitive slave matter in 1850 Massachusetts and face disbarment) appear reserved for the exercise of individual judgment. The most that can be hoped for, then, is for attorneys to persevere in their roles as agents for lawful change.