By Katherine R. Kruse. Full text here.
Each year law students confront the same question in their professional responsibility classes: should lawyers represent clients who want to use the law to do something immoral? Legal scholars who have addressed this question fall into two main camps: traditionalists and social justice theorists. Traditionalists argue that lawyers should provide the public with morally neutral access to the law, regardless of the purposes to which clients want to put the law. Social justice theorists, on the other hand, argue for models of lawyering that permit or require lawyers to refuse representation on grounds of justice or morality.
This Article recasts the question at the center of this familiar debate. Instead of asking what a lawyer should do with an immoral client, it asks what a lawyer should do when confronted with a client with whom the lawyer fundamentally morally disagrees. Changing the question permits exploration of the phenomenon of moral pluralism. To explore the implications of moral pluralism, this Article applies both traditional and social justice models of lawyering to a hypothetical situation in which a lesbian couple seeks legal advice about conceiving or adopting a child from a lawyer who believes homosexuality is wrong and dangerous to children. Neither the traditional model nor the social justice models of lawyering adequately address the concerns of a lawyer and clients in such a situation. The traditional model fails to account for how the lawyer’s internal moral perspective prevents the lawyer from transcending his moral viewpoint and providing neutral access to the law for these clients. By contrast, the social justice models correctly conclude that the lawyer should decline to represent the clients, but these models are right for the wrong reasons.
This Article proposes a better alternative in the form of a “moral conflict of interest” standard that would prevent lawyers from representing clients with whom they fundamentally morally disagree. Such a standard breaks from the traditional model, which views the refusal to represent a client on moral grounds as a self-indulgent choice. The moral conflict of interest framework advocated here would provide clients with full access to the law by protecting them from lawyers whose professional duty of loyalty may be impaired for moral reasons.