This Article offers an answer to key questions in modern American legal ethics: when and why did the legal profession stop talking about professional conduct in moral terms? Mining the history of current rules governing lawyer conduct, this Article reveals that while the 1969 Model Code of Professional Responsibility sought to revolutionize legal ethics by creating a professional code that was more transparent, democratized, and less hierarchical than the preceding 1908 Canons of Legal Ethics, that effort also excised a moral understanding of lawyering in order to facilitate a particular understanding of pluralism.
The drafters of the 1969 Model Code faced a difficult task. They recognized women and minorities were entering the legal profession in unprecedented numbers. Aware of impending conflicts within the newly diverse bar and unsure how to resolve them, drafters of the Model Code struck a devil’s bargain: in exchange for the peaceable coexistence of heterogeneous parties, the Model Code sought to remove moral disputes from the workplace by embracing neutral partisanship. This Article discusses the consequences of that choice. It argues that in order to permit one form of pluralism (demographic pluralism) the bar adopted a professional conduct system (neutral partisanship) that now impedes the inclusion of full substantive pluralism (including value pluralism).
Neutrality is not neutral. Avoidance has its costs. The Model Code did not actually remove morality from practice: it only prevented new lawyers from having the language and means to challenge and change existing moral norms in the profession. Modern legal ethics’ endorsement of neutral partisanship structurally impedes substantive discussions amongst students, lawyers, judges, and academics about proper ends and appropriate means. This Article is a call to reopen discussion as it reveals why the legal profession embraced this particular model of lawyering in the first place and how that purpose has been frustrated over time.
The Cost of Avoidance: Pluralism, Neutrality, and the Foundations of Modern Legal Ethics,
42 Fla. St. U. L. Rev.