The distinguished voices of legal scholars David Luban, Brad Wendel and Paul Felix united at the Watson Forum on Thursday, Feb. 26, in a debate over “zealous advocacy” and its implications in a panel presented by the Prindle Institute for Ethics.
Moderated by Jeffrey Dunn, Prindle director and associate professor of philosophy, the conversation was part of Prindle’s “Courageous Conversations in Ethics” series. The event sought to address the dilemmas lawyers face when moral duty and the law seem to clash.
The panel began with an exploration of zealous advocacy, its definition and its limits. Zealous advocacy, defined as the ethical obligation of lawyers to represent their clients with maximum dedication, presents a unique challenge for attorneys, who experience tension between personal imperatives, professional roles and institutional norms.
Luban, legal philosopher and professor of law and philosophy at Georgetown University, invoked 19th-century British Chancellor Henry Lord Brougham’s view that “an advocate knows nobody in the world except for their client and will, at all costs,” challenging the absolutism of his stance.
“You don’t stop being yourself when you step into the professional role,” Luban said. “Even if the law of lawyering says you have this duty of confidentiality, there is always the question of do I follow that duty or do I not.”
For Luban, the ethical responsibilities of lawyers cannot be reduced to rigid, role-based rules. He questioned whether confidentiality — another topic of heavy courtroom debate — should ever function as an “absolute exceptionalist rule,” suggesting that if there is no compelling justification for absoluteness, lawyers must weigh whether stronger moral reasons exist to break it.
The panelists acknowledged that confidentiality serves several vital purposes – it maintains client trust and privacy, creates a safe space for honesty, and on a systemic level, upholds the integrity of the judicial system. Yet the rule’s darker implications surfaced in the panelists’ discussion of cases like that of Alton Logan, who spent 26 years in prison for a crime he did not commit, while attorneys kept the real perpetrator’s confession confidential. The case accentuated the ethical problem of confidentiality and the limited exceptions that do exist, such as preventing death or substantial bodily harm, financial ruin, and, in some states, wrongful incarceration or execution.
Wendel, professor of law at Cornell Law School, offered a contrasting perspective on confidentiality grounded in fidelity to legal institutions. “People disagree about all sorts of things, and you can see sensible arguments on both sides of any issue,” he said. The role of law, he argued, is to provide a position that stands in for what a political community has collectively determined what “ought to be” done.
“Fidelity to the law is important because the law has a moral purpose,” Wendel said. “It’s not an amoral role — the morality of the role is oriented toward sustaining a system that allows the resolution of social disagreement in a relatively orderly, respectful way.” When faced with difficult questions about professional responsibility, Wendel cautioned lawyers against substituting personal moral instincts for established legal standards. “Do not, under any circumstances, consult your moral compass,” he said. “That road leads to perdition.”
Felix, a judge on the Indiana Court of Appeals who previously served as a deputy prosecutor for a decade, emphasized professional courtesy as a limit on zealous advocacy. “Zealous advocacy does not mean that you take advantage of other lawyers in their personal issues,” he said, pointing out that lawyers who contest as opposing counsel often also work together as colleagues. Felix also highlighted the ambiguity built into legal standards. “The law is filled with adjectives like ‘seriously’ and ‘substantially.’ How does a lawyer determine when that threshold has been met?”
Who lawyers choose to represent also sparked debate. Wendel argued that public criticism of lawyers often lacks “symmetry,” as attorneys are condemned for representing controversial clients but rarely praised for upholding justice. Lawyers should be transparent about their choices, he stated, but they are not straightforward wrongdoers for taking difficult cases.
Felix added that lawyers do not always have unlimited discretion in selecting clients, considering not only career goals but a lawyer’s constitutional obligation to represent. “In every prosecution, the state has an obligation to prove the case — to prove the person is guilty. Every lawyer took an oath to defend the Constitution and the rule of law as much as anything else. A lawyer has an ethical responsibility to the rule of law.”
Luban, however, pointed out the irony that lawyers may withdraw from representation over unpaid bills more readily than over profound moral disagreement. Given their professional privilege, he suggested, lawyers possess more discretion than they sometimes acknowledge.
Throughout the 90-minute conversation, panelists re-examined the extent to which various moral influences should guide lawyers in their professional role and what these choices mean for the public trust and the justice system at large.
In his closing remarks, Luban warned against exploiting legal loopholes. Lawyers, he argued, should ultimately uphold the law itself.
“The duty of the prosecutor is not to seek victory, but seek justice,” he said. “The argument that the Supreme Court gave when it came up with that dictum was that as a prosecutor, you’re not just representing a private client—you’re representing a sovereignty whose laws ought to extend to all of us.”
The Prindle Institute for Ethics will next host the Putnam County Middle School Ethics Bowl on March 14.
