The Bush Administration torture memos are widely seen as an example of a lawyer gaming the system in order to produce the result his client desired. It is exactly this type of lawyering that professor of law W. Bradley Wendel attempts to remedy in his new book, Lawyers and Fidelity to Law.
In December 2010, three noted legal ethics scholars—Robert Gordon of Yale Law School, Ted Schneyer of the University of Arizona James E. Rogers College of Law, and Ben Zipursky of Fordham Law School—gathered to discuss Wendel’s book.
“In Wendel’s view, law binds lawyers and their clients not because it is moral or even because it is just, but for political reasons: the law at any time represents a provisional political settlement of conflicts between conflicting interests and claims of right,” said Gordon. “These settlements are indispensable for coordinating social activity and preventing endless friction.”
Schneyer said that “the overriding consideration for lawyers should be to represent clients in a way that is faithful to the law. But if you understand that the implications of that principle are in more than a few situations unclear and you understand the force fields in which practicing lawyers must operate, then you have to recognize how hard it is to ensure that the ‘overriding’ condition is indeed overriding.”
“When lawyers interpret the law they are simultaneously helping their clients do what it is important for them to do—comply with the law and use the law—and they are also permitting the law to function in the way we have wanted it to function,” said Zipursky.
“If there’s something good about what we do as lawyers, it is to enable coexistence despite deep and persistent moral disagreement,” said Wendel. “If we are lawyers in the best sense, it is because we contribute to this socially beneficial project.”