Volume 34
Issue 1
Winter '21

Selling Out: An Instrumentalist Theory of Legal Ethics

Written By: Keith N. Hylton

Abstract

Legal ethics has received attention mostly from scholars who view it as a field for the application of moral philosophy. However, economic analysis is also useful in the study of legal ethics, because it can illuminate the incentives that generate ethical dilemmas and controversies. This is especially true in the subfield this paper devotes its attention to, lawyer conflict of interest rules. The problem I focus on is the incentive of the lawyer to “sell out” his client—for example, by providing confidential information to a potential adversary or by providing legal misinformation to the client in order to aid the adversary. The lawyer is in a unique position to auction off the client’s legal rights to the high-est bidder. Troublingly, in those instances where the client most values his legal right, the lawyer will find it more profitable to sell out the client than to arrange a mutually beneficial consent to a conflict of interest. I examine implications for the regulation of legal ethics.

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