Revisiting Antigone’s Dilemma: Why the Model Rules of Professional Conduct Need to Become Model Presumptions that Can Be Rebutted by Acts of Ethical Discretion

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Revisiting Antigone’s Dilemma:
Why the Model Rules of Professional Conduct Need to
Become Model Presumptions that Can Be Rebutted
by Acts of Ethical Discretion

A.Overview of the Model Rules 5

B.The Critical Role that the Model Rules Played in Spaulding 13

A.Option One 16

B.Option Two 19

C.Option Three 21

D.Option Four 23

A.Current Practices 40

B.The Underlying Principles of the Model Rules 43

C.Prompt Resolution of Novel Ethical Problems as They Arise 45

D.Proactive Ethical Conduct 47

E.The Image of the Profession 48
  1. Introduction

Justice Thurgood Marshall reportedly liked to remind his clerks that “[t]he Constitution does not prohibit legislatures from enacting stupid laws.”1 The Constitution also does not prohibit legislatures from enacting immoral laws,2 which have often brought lawyers to struggle with the dilemma of choosing between what is legal and what is right.3 In Antigone, the Greek tragedian Sophocles explores this very dilemma.4 Antigone begins with a scene in which Antigone tells her sister that their brother had died in combat, and that the warlord who had killed him declared that the death penalty faced anyone who dared bury her brother.5 Antigone’s opening chapters explore just how torn its eponymous character feels between obeying the law and obeying the moral impulse to provide her brother with the honor of a proper burial.6

The conflict between immoral laws and one’s moral compass was as much of a pressing issue in Antigone’s time as it is today, with mandatory sentencing guidelines, certain Guantanamo Bay practices, and rules of professional conduct that have pushed outstanding attorneys into committing immoral acts. Attorneys and non-attorneys alike continue to struggle with Antigone’s Dilemma. However, attorneys see an especially difficult problem from Antigone’s Dilemma because of their close involvement with perpetuating the legal system. As this Essay will explore, the conflict between immoral laws and moral conscience can be a matter of life and death not only in Antigone’s time, but even today. Attorneys today, like their predecessors in generations past, have four ways to cope with Antigone’s Dilemma. Attorneys can: (1) ignore their conscience, (2) ignore the dilemma by withdrawing from the case, (3) ignore the law, or (4) ignore the law’s original intent by reaching an alternative interpretation that aligns with the conclusion the interpreter desires.7

This Essay explores the shortcomings of these four options, then proposes the adoption of a new framework. The new framework is based in large part on the “law as integrity” model advanced by Professor Ronald Dworkin.8 Dworkin’s model turns on ethical discretion and therefore addresses the source of the problem of immoral laws, namely the inflexibility of the guidelines, practices, and model rules that can result in inadvertently but patently immoral outcomes.9 Though a number of modern-day laws raise Antigone Dilemma issues, this Essay focuses on the American Bar Association’s Model Rules of Professional Conduct.10 The Model Rules serve as a case study into a well-intentioned set of rules whose inflexibility constrains attorney behavior, sometimes to the point of forcing attorneys to engage in immoral conduct against their own will. Dworkin’s model offers a glimpse into how the reconceptualization of the Model Rules as rebuttable presumptions can more effectively address an attorney’s moral concerns while retaining the predictability and order that the current rule-based system enjoys.

Under the current regime, the Model Rules provide a number of general scenarios in which attorneys must, may, or must not act in a prescribed manner.11 But under a Dworkian regime, these ethical rules would presumptively apply unless their applicability to a novel and unforeseen circumstance were rebutted on ethical grounds.12 Dworkin’s model and this Essay’s additions to it reconceptualize the Model Rules as rebuttable presumptions, presumptions that attorneys must consider and can rebut if they find sufficient reason to act otherwise.

Part II of this Essay overviews the Model Rules and examines their impact on Spaulding v. Zimmerman,13 which serves as an excellent litmus test of the kinds of ethical dilemmas facing most attorneys today.14 In Part III, this Essay analyzes the shortcomings of the solutions that attorneys and academics have relied on in their attempts to resolve the dilemma.15 Part IV delves into this Essay’s case for why Dworkin’s model holds out great promise in the effort to finally resolve today’s Antigone Dilemma scenario.16 Part V then outlines the advantages of reconceptualizing the Model Rules into rebuttable model presumptions.17

  1. Rules of Ethics, Legal Positivism, and the Dilemma of Immoral Laws

    1. Overview of the Model Rules

An “ethics rule” is an oxymoron. Rules by definition restrain the kinds of individual autonomy and personal responsibility that characterize ethicality.18 Put another way, rules and ethics are incompatible because where rules produce obedience, ethics are the product of free will. Further, a categorical rule “ignores the aspirational dimension of professional ethics,”19 and “assumes that the legal rules may be applied mechanically, without resort to creative normative judgment.”20 Taken to the absurd extreme, the problem with undermining autonomy and responsibility is perhaps best exemplified in an episode of It’s Always Sunny in Philadelphia.21 A character learns that his friends have rescued an abandoned human baby from a filthy dumpster, and advises, “Well, put it back! It’s not yours.”22 Still, the deeply interpersonal and adversarial nature of lawyering ensures that attorneys will always need some guidance on how to resolve ethical conflicts. This need for guidance, in addition to the legal profession’s overall interest in shining a positive light on the public image of attorney conduct and the practice of law, brought a committee of the ABA in 1905 to investigate the possibility of drafting a code of legal ethics.23 The committee formulated a number of canons, whose general principles and moral appeals offered advice—albeit, unenforceable advice—to perplexed attorneys.24

Concerned about the lack of voluntary compliance with the unenforceable canons, the ABA in 1970 reinforced those canons with a model code of ethics, written like a statute for states to adopt as binding legislation that disciplinary institutions could enforce.25 This remodeling of the canons—and the subsequent remodeling of the code into its current form, with its eight sections of rules and scores of “comments”—created a distinctly regulatory model of ethical conduct among attorneys.26 Other scholars take a dimmer view of the regulatory model, referring to it instead as imposing a model of “technocratic lawyering”27 or, as Dworkin put it, “conventionalism.”28 However one views the Model Rules and their effect on lawyering, most agree that “[t]here can be little doubt that the current embodiment of legal ethics in disciplinary ‘codes,’ whether enacted by state legislatures or adopted by state supreme courts, has transformed legal ethics into positive law.”29

Put simply, legal positivism is a commitment to law.30 This commitment to law “has come to dominate American and European legal thought,”31 and its commitment traces the validity of a law from that law’s procedural sources instead of from its substantive merits.32 By prioritizing the source of a law over its merits, the interpreters of a law must “set aside their roles as independent moral agents and act as impartial functionaries within our legal institutions.”33 In his nomination hearing to the U.S. Supreme Court, Chief Justice John Roberts portrayed the casting aside of independent moral agency somewhat more memorably, saying:

Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent.34

The Model Rules reflects positivist thought because by providing categorical answers to the most common kinds of moral dilemmas, the rules turn every attorney into an umpire.35 Further, the Model Rules’ preamble outright states that while “many difficult issues of professional discretion can arise[, and s]uch issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules[,]” a lawyer’s conduct nevertheless “should conform to the requirements of the law . . . .”36

A central tenant of legal positivism’s commitment to law is its separation between legal validity and moral considerations.37 This neutrality over moral concerns makes legal positivism seemingly appropriate, if not ideal, for a pluralistic American society. Moreover, many positivists argue that moral concerns can negatively impact the attorney-client relationship, saying that “once the lawyer has assumed responsibility to represent a client, the zealousness of that representation cannot be tempered by the lawyer's moral judgments of the client or of the client's cause.”38 However, the separation between law and morality necessarily means that an individual’s disagreement with the morality of a law would not excuse that person from the duty to obey it.

Legal positivism is as apathetic to populist sentiments as it is to the attorney’s own moral concerns. At times, this separation between law and morality has helped push major progress through the legal system—but at times, this separation has also set back major progress through the legal system.39 As populist judges sat on their hands at key moments in American legal history, positivist attorneys struck down the segregation laws that had infested the Jim Crow South,40 upheld the right of association for communists during the “red scare,”41 and protected the free speech rights of flag burners.42 Most recently, the Supreme Court continued this proud tradition by maintaining the due process rights of Guantanamo Bay detainees despite urgent national security concerns.43 These judicial opinions ignored the strong moral sentiments of their day, and focused instead on the constitutional principles from which society had strayed in the heat of the moment.44 In constitutional cases, it certainly helps the positivist cause to know that the United States Constitution is a profoundly visionary document. But in some constitutional cases, positivism has led attorneys to perpetuate immoral laws.45 Much like their counterparts in Apartheid South Africa46 and fascist Germany,47 antebellum American judges maintained fugitive slave laws despite their own moral concerns because “law is law.”48 The Supreme Court upheld the constitutional validity of the Fugitive Slave Acts of 1793 and 1850, which authorized the federal government to return slaves to the South if they were caught in the North.49 Feeling duty-bound, most judges also simply upheld the Fugitive Slave Acts. Others manipulated the acts to achieve just results.50 One scholar noted, in an observation reminiscent to Justice Roberts’ analogy to umpires, that “there was a general, pervasive disparity between the individual’s image of himself as a moral human being . . . and his image of himself as a faithful judge, applying legal rules impersonally . . . .”51

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