Reflections on the Ethics of Representing Clients Whose Aims Are Unjust

South Texas Law Review 40:1 (Spring 1999).

Sometimes it is possible for lawyers to represent clients whose aims are unjust without willing the injustice of their clients’ aims.

For example, generally speaking, someone who is guilty of a crime ought, as a matter of justice, to confess to having committed the crime and accept just punishment for it. To attempt to evade just punishment is, ordinarily, unjust. Nevertheless, a lawyer may sometimes justly defend someone who has committed a crime, even if the accused person declines to plead guilty. In defending his client – and even in doing so “with zeal in advocacy upon the client’s behalf” – the lawyer need not always will (i.e., “intend,” whether as ends or means) the injustice of his client’s attempt to evade just punishment, nor need he inevitably implicate himself in any other injustice.

There is, of course, a sense in which a lawyer who represents a criminal who refuses to confess is facilitating or “cooperating” with his client’s unjust efforts to evade just punishment. The client’s aim, we may safely suppose, is to evade just punishment, and he secures the assistance of counsel precisely as a means of accomplishing that goal. From the client’s point of view, his lawyer’s role is instrumental to his project of “getting off the hook.” But this does not necessarily mean that the lawyer is cooperating “formally” with his client’s unjust project.  Sometimes he can defend his client without sharing his client’s specific aim, and thus, his …