Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel
I would like to start by stating a proposition that may strike you as either simple-minded or self-evident, but, more likely, will simply seem strange because of the way in which I state it. My proposition is this: In a democratic society, the legal profession, its rights and privileges, exist to serve public purposes. The legal profession serves two principal public purposes: to provide representation to those who lack the specialized training to represent themselves, that is, non-lawyers, and to promote justice in society. One might object that representing clients is not a public purpose, but that, I would suggest, is to take too narrow a view. Both of these purposes - the representation of clients and the advancement of justice - are public purposes. They are essential to civil peace, to the rule of law, and to the well-being of a democratic society, particularly one in which life and law are complex, and where the just resolution of disputes and the evolution of legal principle both depend upon the proper functioning of the adversary system. Of course, these two purposes will sometimes conflict, but that is a subject for another time. The point I want to make at the outset is that the legal profession does not exist principally to reward lawyers, either financially or in the sense of making them feel good. These may be ancillary benefits that flow from the practice of law, and properly may be wished for, but they do not provide its primary justification. The main justification for the legal profession rests in the fact that it satisfies the two essential social needs I have mentioned. Yet lawyers are neither monks nor machines. Like other professionals, we do seek psychological and spiritual satisfaction from our work, just as we seek some measure of financial well-being. What I would like to do today is to explore one aspect of the relationship between these primary and secondary purposes of the legal profession: namely, the possible tension between the lawyer's personal interests and preferences and the advancement of the public purposes of the legal profession. I intend to do that by focusing on a particular issue: the availability of counsel. Indeed, what I would like to do is to focus on an issue that is even narrower than that. The question I would like to explore, albeit by a somewhat circuitous route, is this: Whether the decision to refuse representation to the repugnant client is simply a private decision, or, alternatively, one that has public dimensions.
Private Practice, Public Profession: Convictions, Commitments, and the Availability of Counsel,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol108/iss1/4