Legal Realism for Lawyers

Abstract

In this Article, Professor Wilkins argues that the traditional model of legal ethics is premised on formalist assumptions about the constraining power of legal rules. Specifically, that model assumes that "the bounds of the law" provide objective, consistent, and legitimate restrictions on zealous advocacy. This assumption, however, is inconsistent with the claim, generally associated with legal realism, that law is indeterminate. Although Professor Wilkins concludes that the law is not radically indeterminate from the perspective of the practicing lawyer, there is sufficient truth in the realist claim to undermine both the descriptive and the normative force of the traditional model. Though reform is therefore needed, proposals concentrating solely on rationalizing the current system of professional regulation and those delegating primary responsibility to individual practitioners are neither fully workable or desirable. Instead, Professor Wilkins advocates a "middle-level" approach that tailors ethical rules to relevant contextual differences.