Economic Inequality, Access to Law, and Mandatory Arbitration Agreements: A Comment on the Standard Conception of the Lawyer’s Role

19 Pages Posted: 3 Jun 2020

Date Written: June 1, 2020

Abstract

Academics have long debated the propriety of the traditional model of legal ethics, often referred to as the standard conception of the lawyer’s role, which combines the principles of “partisanship” and “neutrality.” Partisanship requires lawyers to promote the interests of their clients vigorously within the bounds of the law. Neutrality requires lawyers to subordinate their moral concerns to those of the client and holds that only the client is entitled to make moral choices. In return, the lawyer is released from moral responsibility for any lawful ends achieved or lawful means used. In one strand of legal scholarship, commentators advanced justifications of the standard conception, including its principle of neutrality, based on the value of autonomy. Although details among the various accounts differed, they largely embraced the view that the principle of neutrality was necessary to safeguard client autonomy. They argued that the autonomy of individuals could only be fully realized if they were able to fully exercise their legal rights. In our society, legal rights are realistically only accessible through a lawyer; accordingly, when lawyers foreclose or delimit access to legal services by—for example—refusing to assist in legally permissible but immoral projects, they are not only depriving clients of full and equal access to the law but also impairing clients’ autonomy.

This Article contends that these autonomy-based defenses of the standard conception cannot withstand the “economic inequality” objection. According to this objection, the moral worthiness of lawyering under the standard conception cannot be reconciled with a legal system that is so marred by gross economic inequality such that only the wealthy have access to lawyers. It can also not be reconciled with the fact that the wealthy routinely use lawyers to undermine the public interest and exploit others who cannot afford lawyers. After examining responses to the economic inequality objection, this Article concludes that these responses do not take seriously how economic inequality can interact with the principle of neutrality to exacerbate inequality. Specifically, they fail to consider the possibility that lawyers, acting according to the principle of neutrality, will foreclose others’ access to lawyers (and thereby the law) and undermine their autonomy—the very value that underwrites these defenses. To demonstrate this point, this Article provides one concrete example of how the principle of neutrality can interact with economic inequality to exacerbate inequality. It shows how the neutrality principle has already operated in the employment context to deprive sixty million employees of their access to lawyers, making it impossible for these employees to vindicate their employment-related rights in any forum.

Keywords: standard conception of the lawyer’s role, standard conception of legal ethics, principle of neutrality, principle of partisanship, economic inequality, access to law, mandatory arbitration agreements, autonomy, freedom as non-interference, freedom as non-domination, republicanism

Suggested Citation

Kim, Sung Hui, Economic Inequality, Access to Law, and Mandatory Arbitration Agreements: A Comment on the Standard Conception of the Lawyer’s Role (June 1, 2020). 88 FORDHAM LAW REVIEW 1665 (2020), UCLA School of Law, Public Law Research Paper No. 20-13, Available at SSRN: https://ssrn.com/abstract=3616157

Sung Hui Kim (Contact Author)

UCLA School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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