The Law and the “Spirit of the Law” in Legal Ethics

This article explores the notion of the lawyer’s ethical responsibility to go “beyond” the letter of the law and to be guided by the “spirit” or “purpose” of the law. It suggests that, notwithstanding its adherence to admirable principles and goals, a spirit of the law model may prove inconsistent with basic legal and ethical obligations of lawyers. At the same time, this article recognizes the aspirational value and, potentially, the practical benefit of the spirit of the law approach, particularly in the work of lawyers. Thus, the article considers areas of legal practice in which it may be appropriate for lawyers to rely on the spirit of the law. Part I introduces and critiques William H. Simon’s purposive approach to legal ethics, focusing on Simon’s view that a lawyer should not plead the statute of limitations when, in the lawyer’s view, doing so would fail to promote the underlying purpose of the statute. Despite the author’s having critiqued a lawyer’s general reliance on a spirit of the law approach, Parts II and Part III of the article consider two scenarios in exploring the possible appropriate application of a spirit of the law analysis to the interpretation and application of ethics codes. Finally, the article looks at the more challenging scenario of the “Innocent Convict” who is going to be executed for a crime the lawyer’s client has committed. Under the ethics codes in several states, the lawyer would be obligated to maintain the client’s confidence, notwithstanding that disclosure would save the life of an innocent individual. In contrast to Simon’s approach, which again seems to characterize the lawyer’s conduct in that scenario as defying the law in pursuing the preferable outcome, the article reaches a similar conclusion, in favor of disclosure, but arrives at that conclusion through an analysis that is premised on a substantially different framework and that proceeds through a significantly different methodology.

Samuel J. Levine