This paper investigates two prompts: is it ethically permissible for attorneys to violate the law without legally recognized excuse or justification? If yes, what considerations encourage the exercise of restraint?

Two arguments are offered: (1) system- and cause-legitimacy rationales, while compelling at some level, fail to provide a sufficient explanation of why attorneys should categorically refrain from law-breaking;

(2) more satisfying is the lawyer-as-privileged-actor argument: (a) the lawyer’s comparative advantages lie in lawful recourse and (b) the lawyer’s license receives and preserves its power through its users’ adherence to the law. The attorney-as-privileged-actor argument, while perhaps not a fully satisfying defense of a categorical bar against violation, is a persuasive argument for the exercise of restraint.

System Legitimacy and an Impressionable Public

Criminal-law theorists provide two arguments which neatly outline the “system legitimacy” view. First, law establishes a moral balance in society; by restraining society’s members it provides absolute gains in the form of life and bodily security (Morris, “Persons and Punishment”). Similarly, by punishing transgressors, the law exists as a platform for the expression of public morality (Kahan and “expressive theory”).

Violations, then, as affronts to our morality and social order, need be punished in order to restore system integrity and deter future challenges. Lawbreaking by those most familiar the law is especially egregious since it will embolden violations by those less-inclined to obey its letter.

The system legitimacy argument rests on the challengeable presumption that any unpunished violations will spur relativism and gut the law’s moral force (e.g. courts’ rationale for an objective definition of wrong within the insanity defense).

Take the attorney who violates patent laws believing the desire to create and recognition attending creation are sufficient to motivate investment of the resources necessary for human advancement. It is unclear that these transgressions will catalyze violation of malum in se offenses (e.g. forcible rape).

It seems more plausible that any cascading would be localized - that principled violations of the law by attorneys would catalyze challenges mainly to questionable malum prohibitum offenses.

To be fair, this “attorneys as class of gold” argument is undermined by the many unprincipled abuses of power by our world’s elite which strengthen the conviction 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 requires professional competence and respectable counsel. Essentially, representation by law-breakign attorneys delegitimizes the clients’ causes: a debatable proposition.

As advocates, attorneys need not appear neutral. Principled violations 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 respectability of the advocate since he may possess a principled interest in the client’s position.

In cases concerning malum prohibitum offenses, an advocate who refrains from engaging in the alleged illicit practice of his client may too negatively influence juror and legislative perceptions. Attorney compliance with questionable malum prohibitum offenses may signal the legitimacy of the law alleged to have been violated.

Figures like Keith Stroup, Chief Legal Counsel for NORML and a self-proclaimed cannabis user, would likely argue that his violation increases the legitimacy of his advocacy, since he is an otherwise upstanding member of society.

At best the cause-legitimacy 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 a quid-pro-quo 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 ultimate 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 therefore 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.

The Role of Judgment

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 most that can be hoped for, then, is for attorneys to consider the impact of their actions under each of the three theories as they exercise judgment and persevere in their roles as agents for just change.