Professional Role and Professional Judgment: Theory and Practice in Legal Ethics

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9 University of St. Thomas Law Journal 250 (2011)


Theory and practice come together at the heart of legal ethics - in the exercise of professional judgment. Sometimes analogized to Aristotelian practical wisdom, professional judgment is "neither a matter of simply applying general rules to particular cases nor a matter of mere intuition" but a process of bringing coherence to conflicting values within the framework of general rules and with sensitivity to highly contextualized facts and circumstances. The importance of professional judgment has been widely recognized. The ABA Model Rules of Professional Conduct have long called on lawyers to exercise "sensitive professional and moral judgment guided by the basic principles underlying the Rules."

This article explores the relationship between the exercise of professional judgment and academic theories about lawyers' professional role. Part I of this article examines the three-level process of professional judgment contemplated by the ABA Model Rules of Professional Conduct. It traces the pathway of professional judgment from a simple question of legal ethics - involving the ethics of providing financial assistance to a client - through these three levels: (1) analysis of the language of the applicable rule; (2) analysis of the problem in terms of the underlying principles and policies that animate the rule; and (3) examination of how competing conceptions of professional role will provide different guidance in ethical decision making. Part II surveys theories of professional role in legal ethics and the rubrics or frameworks for ethical decision making that these theories propose or suggest. Part III details the challenges of employing the rubrics and frameworks created in theories of professional role directly in the exercise of professional judgment. It argues that, although theory is not directly applicable to practice, robust theoretical debate in the field of legal ethics both deepens understanding and sharpens accountability in the field of legal ethics.