The legal profession has long embraced what is called the “standard conception” of legal ethics, the prevailing model guiding the social and professional norms of American lawyers since at least the 1970s. The standard conception requires lawyers to promote their clients’ interests vigorously within the bounds of law and urges lawyers to be morally neutral toward lawful client ends, regardless of even the predictable consequences of their representations, including any harms inflicted on third parties or the public at large. Central to the most prominent defenses of the standard conception is the value of individual autonomy, specifically the client’s. According to these defenses, when lawyers help to preserve and express the autonomy of clients vis-à-vis the legal system, lawyers provide a moral good.
This article challenges the standard conception—specifically, the critical role that “autonomy” plays in its justification. It calls for an alternative model of legal ethics that draws from the republican intellectual tradition. Part I reviews some of the leading defenses of the standard conception and shows how they have identified autonomy as a core value underlying the standard conception. Part II interrogates the notoriously nebulous notion of autonomy and teases out its various entailments, including the distinction between negative liberty and positive liberty—concepts which have been integral to all major modern political philosophical traditions, including the classical and contemporary liberal traditions, which have provided the intellectual grounding for the standard conception. With these distinctions in hand, Part III explains how the standard conception exacts an “autonomy appropriation” from lawyers to their clients in disproportionate and regressive ways. It argues that the standard conception violates the very value used to justify its existence. Part IV looks outward from the bilateral relationship between lawyer and client to think about the impact on third parties and raises the “autonomy externality” problem. It argues that, even if we stay laser-focused on the value of autonomy alone, clients’ exercise of their autonomy can undermine the autonomy of others. Hence, lawyers’ enhancement of their clients’ autonomy can simultaneously undermine the autonomy of third persons. To explore the autonomy externality problem in stark, real-world terms, Part IV conducts a case study of pre-filing nondisclosure agreements (“NDAs”) used by lawyers to settle sexual abuse claims made against powerful clients. It shows how lawyers who recommend, negotiate, and draft NDAs on behalf of their clients undermine the autonomy of third persons by enabling repeat sexual abuse. What is more, the justifications for the standard conception are paralyzed by a commitment to value neutrality, making the standard conception ill-equipped to assess autonomy tradeoffs between the client and third parties, such as with NDAs. Part V introduces an alternative conception of autonomy, based on the republican notion of liberty. Whereas liberal understandings of autonomy emphasize negative and certain forms of positive liberty, the republican conception of autonomy is the absence of domination. Returning to the case study of NDAs, it argues that an alternative model of legal ethics based on republican liberty is better able to assess autonomy tradeoffs and to provide moral guidance that better comports with our sense that some incursions on autonomy are more serious than others. It then offers suggestions on how we might rekindle the civic virtue of the legal profession around the value of republican liberty. Part VI answers objections that a republican conception of legal ethics would perversely lead to lawyers dominating clients or be inferior to the direct regulation of autonomy externalities.
Sung Hui Kim,
Legal Ethics After #MeToo: Autonomy, Domination, and Nondisclosure Agreements,
73 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol73/iss3/1