David Luban, ‘Fiduciary Legal Ethics, Zeal, and Moral Activism’

ABSTRACT
The recent turn to fiduciary theory among private lawyer scholars suggests that ‘lawyer as fiduciary’ may provide a fresh justification for legal ethics distinct from moral and political accounts propounded by theorists in recent decades. This Article examines the justification and limits of fiduciary legal ethics. In the course of the investigation, it argues that the fiduciary relation of lawyer to client as defined in the ethics codes does not align perfectly with fiduciary principles in other legal domains, such as agency, trust, or corporate law. Lawyers are fiduciaries of their clients. Does that mean lawyers can never throttle back on partisan zeal for moral reasons? So it might seem, and so some scholars have argued. Ethics rules permit lawyers to withdraw from representations they find morally repugnant, but not to represent clients with diminished zeal. And yet there are cases, such as peeking at metadata inadvertently transmitted in documents sent by an adversary, or exploiting scrivener’s errors, where many lawyers understandably back off from the sternest implications of partisan zeal. Such cases call into question whether ‘lawyer as fiduciary’ tells the whole story. An adequate theory of the lawyer-client fiduciary relationship must define the limits to fiduciary zeal as well as justify the fiduciary relationship itself. Otherwise, invoking the word ‘fiduciary’ merely relabels the moral problem of partisan zeal rather than resolving it.

Luban, David, Fiduciary Legal Ethics, Zeal, and Moral Activism (May 26, 2020). Georgetown Journal of Legal Ethics, volume 33, no 2, 2020.

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