1. Rawls calls these conditions the burdens of judgment. See John Rawls, Political Liberalism (Columbia University Press, 1993) at 54-58. Jeremy Waldron refers to “the felt need among members of a certain group for a common framework or decision or course of action on some matter, even in the face of disagreement about what the framework, decision or action should be” as the circumstances of politics. Jeremy Waldron, Law and Disagreement (Oxford University Press, 1999) at 102.

2. See Waldron, Jeremy, “Normative (or Ethical) Positivism” in Coleman, Jules, ed, Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford University Press, 2001) 410.CrossRefGoogle Scholar

3. Shapiro, Scott, Legality (Harvard University Press, 2011) at 170–73.Google Scholar

4. Wendel, W Bradley, Lawyers and Fidelity to Law (Princeton University Press, 2010)CrossRefGoogle Scholar; Tim Dare, The Counsel of Rogues?: A Defence of the Standard Conception of the Lawyer’s Role (Ashgate, 2009); Daniel Markovits, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton University Press, 2008).

5. See, e.g., William H Simon, The Practice of Justice (Harvard University Press, 1998) at 77-108; David Luban, Legal Ethics and Human Dignity (Cambridge University Press, 2007) at ch 7 (“The ethics of wrongful obedience”).

6. Joshua P Davis, “Legal Dualism, Legal Ethics, and Fidelity to Law” [2016] J Professional Lawyer 1 [Davis, “Legal Dualism, Legal Ethics, and Fidelity to Law”]; Amy Salyzyn, “Positivist Legal Ethics Theory and the Law Governing Lawyers: A Few Puzzles Worth Solving” (2014) 42 Hofstra L Rev; Joshua P Davis, “Legal, Morality, Duality” (2014) Utah L Rev 55 [Davis, “Legal, Morality, Duality”]; Benjamin C Zipursky, “Legal Positivism and the Good Lawyer: A Commentary on W. Bradley Wendel’s Lawyers and Fidelity to Law” (2011) 24 Geo J Leg Ethics 1165.

7. See, e.g., Jeremy Waldron, “The Concept of the Rule of Law” (2008) 43 Ga L Rev 1; Stephen R Perry, “Hart’s Legal Methodological Positivism” (1998) 4 Leg Theory 427.

8. See, e.g., John Gardner, “Legal Positivism: 5 1/2 Myths” (2001) Am J Juris 199.

9. Charles Fried, “The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation” (1976) 85 Yale LJ 10.

10. Luban, David, Lawyers and Justice: an Ethical Study (Princeton University Press, 1988) at xxi.Google Scholar

11. Richard Wasserstrom, “Lawyers as Professionals: Some Moral Issues” (1975) 5:1 Human Rights 1.

12. Ibid at 3-4.

13. See, e.g., Michael Hardimon, “Role Obligations” (1994) 91:7 J Philosophy 333; Judith Andre, “Role Morality as a Complex Instance of Ordinary Morality” (1991) 28:1 Am Philosophy Quarterly 73; Mike W Martin, “Rights and the Meta-Ethics of Professional Morality” (1981) 91:4 Ethics 619.

14. Wasserstrom, supra note 11 at 5; Dare, supra note 4 at 31-32; Alan Goldman, The Moral Foundations of Professional Ethics (Rowman & Littlefield, 1980) at 4.

15. Luban, supra note 10 at 130-33.

16. Fried, supra note 9.

17. Ibid at 1071-74.

18. Wolf, Susan, “Legal Ethics, and the Ethics of Law” in Luban, David, ed, The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Rowman & Allanheld, 1983) 38 at 59, n 4.Google Scholar

19. William H Simon, “The Ideology of Advocacy: Procedural Justice and Professional Ethics” (1978) 1 Wis L Rev 29 at 108.

20. Stephen L Pepper, “The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities” (1986) 11:4 Am Bar Foundation Research J 613.

21. Luban, supra note 5, ch 2 (“Lawyers as Upholders of Human Dignity (When they Aren’t Busy Assaulting it”) (responding to his own challenge to come up with a moral value that justifies duties within professional ethics).

22. Applbaum, Arthur Isak, Ethics for Adversaries: The Morality of Roles in Public and Professional Life (Princeton University Press, 1999) at 109.Google Scholar

23. Daniel Markovits accepts this framing of the problem, and agrees that lawyers are required by the norms of their profession to do what, in ordinary moral terms, would be lying and cheating. See Markovits, supra note 4 at 44-77.

24. See, e.g., Monroe H Freedman & Abbe Smith, “Misunderstanding Lawyers’ Ethics” [Book Review of Markovits, supra note 4] (2010) 108 Mich L Rev 925; Ted Schneyer, “Moral Philosophy’s Standard Misconception of Legal Ethics” (1984) Wis L Rev 1529.

25. W Bradley Wendel, “Professional Roles and Moral Agency” [Book Review of Applbaum, supra note 22] (2001) 89 Geo LJ 667.

26. See Rhode, Deborah L, Ethics by the Pervasive Method (Little, Brown, 1994) at 669.Google Scholar

27. See, e.g., Searle, John R, The Construction of Social Reality (Free Press, 1995).Google Scholar

28. See Ted Schneyer, “The Promise and Problematics of Legal Ethics from the Lawyer’s Point of View” (2004) 16:1 Yale JL & Human 45 (recognizing this emerging theme in scholarship).

29. See Katherine R Kruse, “The Jurisprudential Turn in Legal Ethics” (2011) 53:2 Ariz L Rev 493 at 505-06.

30. JB Schneewind, The Invention of Autonomy: A History of Modern Moral Philosophy (Cambridge University Press, 1998) at 71-72 (citing Hugo Grotius’s recognition of this fact about human nature as one of the distinctively modern insights in moral philosophy).

31. Shapiro, supra note 3 at 173. One need not be committed to the planning analogy to see the moral aim of law as resolving social conflict. Finnis’s modern natural law begins with the observation that human goods are plural and incommensurable, and that legal authority is required to settle the conflicts that inevitably arise as a result. John Finnis, Natural Law and Natural Rights (Clarendon Press, 1980) at 231-32.

32. Wendel, supra note 4; Dare, supra note 4; Markovits, supra note 4; Norman W Spaulding, “Reinterpreting Professional Identity” (2003) 74:1 Colo L Rev 1.

33. Shapiro calls this the General Logic of Planning (GLOP). See Shapiro, supra note 3 at 309-11.

34. See Luban, supra note 10.

35. See Wendel, supra note 4 at 49-51; See also Stephen L Pepper, supra note 20 (arguing that “access to law” is essential for the client’s “first-class citizenship”).

36. See Dare, supra note 4 at 74.

37. American Bar Association, Model Rules of Professional Conduct, ABA, 2016, Rule 2.1 [Model Rules].

38. Waldron, supra note 2 at 151-53 (criticizing Rawls’s Political Liberalism for overlooking the reasonable disagreement that can also relate to the basic terms of association in a society—i.e., the principles of justice).

39. 42 F (2d) 452 (7th Cir 1957). Stephen Gillers, “Can a Good Lawyer Be a Bad Person?” (1986) 84 Mich L Rev 1011 at 1020 (book review) (introducing hypothetical variation on Zabella).

40. See Markovits, supra note 4 at 35 (offering a somewhat idiosyncratic definition of cheating as “promoting claims or causes that one privately (and correctly) thinks undeserving”). Markovits argues that cheating and its kindred vice, lying, are pervasive in the practice of law.

41. Tim Dare observes that, while the judges on the court of appeals felt constrained to allow the defense, “the court made it clear that they thought Pakel was a scoundrel, who, being in a position of some affluence, should feel obliged to pay an honest debt to his old friend, employee, and countryman.” Dare, supra note 4 at 3 (internal quotations and alterations omitted).

42. Wendel, supra note 4 at 126-28; Dare, supra note 4 at 2-3; Markovits, supra note 4 at 65.

43. Wendel, ibid at 49-52.

44. Joseph Raz, Ethics in the Public Domain (Clarendon Press, 1994) at 231.

45. Davis, “Legal Dualism, Legal Ethics, and Fidelity to Law”, supra note 6; Salyzyn, supra note 6; Davis, “Legal, Morality, Duality”, supra note 6; Zipursky, supra note 6.

46. These are given in the state rules of professional conduct, which for the most part track the American Bar Association’s Model Rules of Professional Conduct. See, e.g., Model Rules, supra note 37, Rules 1.1 (competence), 1.2(a) (following client instructions), 1.3 (diligence), and 3.1 (not asserting meritless claims). Tort, contract, and agency law establish similar duties, albeit with different remedies—civil liability instead of professional discipline.

47. There is a long history of understanding the concept of professionalism as imposing obligations to practice one’s craft in the public interest, on the basis of shared public values. See, e.g., Rebecca Roiphe, “The Decline of Professionalism” (2016) 29 Geo J Leg Ethics 649 at 651 (describing traditional conception of professionalism associated with Durkheim and Parsons).

48. HLA Hart, The Concept of Law, 2nd ed (Oxford University Press, 1994); see also Scott Hershovitz, “The End of Jurisprudence” (2015) 124 Yale LJ 1160 at 1202. (“The thought that there is an existing body of law that comprises all the legal rights, obligations, privileges, and powers in force in a legal system plays no role in legal practice. Lawyers do not consult the law to ascertain what legal obligations people have. Rather, they read records of their community’s legal history—statute books, case reports, and the like—and then they construct arguments about what obligations people have as a result.”).

49. See the discussion of the Alton Logan case in W Bradley Wendel, Ethics and Law: An Introduction (Cambridge University Press, 2014) ch 1.

50. Model Rules, supra note 37, Rule 1.6.

51. See Colin B Miller, “Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality” (2008) 102 Nw U L Rev Colloquy 391; Inbal Hasbani, “When the Law Preserves Innocence: Issues Raised by a Wrongful Incarceration Exception to Attorney-Client Confidentiality”, Comment, (2010) 100:1 J Crim L & Criminology 277.

52. DC Bar, Ethics Opinion 341, “Review and Use of Metadata in Electronic Documents” (2007). Discussed by David Luban, a member of the DC Bar Committee that issued the opinion, in “Legal Ethics, Fiduciary Obligation, and Moral Activism” (Manuscript presented at International Legal Ethics Conference VII, Fordham Law School, 13-16 July 2016).

53. See, e.g., ABA, Formal Opinion 06-442, “Review and Use of Metadata” (5 August 2006); Alabama Bar, Ethics Opinion R0-2007-02, “Disclosure and Mining of Metadata” (14 March 2007); Maryland State Bar Association, Ethics Opinion No 2007-09, “Ethics of Viewing and/or Using Metadata” (19 October 2006); State Bar of Arizona, Ethics Opinion 07-03, “Confidentiality; Electronic Communications; Inadvertent Disclosure” (November 2007); Florida Bar, Ethics Opinion 06-2 (15 September 2006); NY State Bar, Ethics Opinion 782, (8 December 2004); NY City Bar, Formal Opinion 2003-04, (02 April 2003).

54. See, e.g., Suburban Sew-N-Sweep v Swiss-Bernina, 91 FRD 254 (ND Ill 1981) (in dumpster-diving case, privilege held waived by inadequate care taken to protect confidential documents).

55. See, e.g., Lois Sportswear USA v Levi-Strauss, 104 FRD 103 (SDNY 1985). The contextual approach is now recognized by Fed R Evid 502(b). The Rule was amended to follow Lois Sportswear and similar cases as part of an effort to control the burgeoning cost of electronic discovery. See Advisory Committee Note (2007).

56. Model Rules, supra note 37, Rule 4.4(b) commentary [2].

57. That was the conclusion of Pennsylvania Bar Association, Formal Opinion 2007-500, (2011).

58. Luban, supra note 53 at 6-7.

59. Model Rules, supra note 37, Rule 1.2(a).

60. Luban, supra note 53 at 7.

61. During the debates over the Bush Administration’s legal response to the 9/11 attacks, specifically the NSA’s warrantless wiretapping program, Michael Hayden, the Director of National Intelligence, described an aggressive interpretive attitude using a football metaphor: “We’re going to live on the edge…. My spikes will have chalk on them…. We’re pretty aggressive within the law. As a professional, I’m troubled if I’m not using the full authority allowed by the law.” Quoted in Dana Priest, “Covert CIA Program Withstands new Furor”, The Washington Post (30 December 2005) A01. The content of the underlying entitlement of government agencies to spy on Americans and foreigners depends to a significant extent on the interpretive attitude adopted by government lawyers.

62. See Salyzyn, supra note 6 at 1069-70; Davis, “Legal Dualism, Legal Ethics, and Fidelity to Law”, supra note 6 at 30-31 (noting that lawyers must exercise judgment in representing their clients, and that this judgment must be based on something, and moral considerations provide the best account of the basis of lawyers’ professional judgment).

63. Salyzyn, supra note 6 at 1069 (“this particular area of doctrinal law [the law governing lawyers] may be seen as constitutive of the very role of ‘Lawyer’”).

64. Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977) at ch 3.

65. Ibid at 40.

66. 22 NE 188 (NY 1889).

67. As Hart did in the Postscript to the Second Edition of The Concept of Law.

68. Dworkin, Ronald, Law’s Empire (Harvard University Press, 1986) at 19.Google Scholar

69. Ibid at 190.

70. Ibid at 211.

71. Ibid at 225.

72. See, e.g., Scott J Shapiro, “The ‘Hart-Dworkin’ Debate: A Short Guide for the Perplexed” in Arthur Ripstein, ed, Ronald Dworkin (Cambridge University Press, 2007); Brian Leiter, “The End of Empire: Dworkin and Jurisprudence in the 21st Century” (2004) 36:1 Rutgers LJ 165 at 175-76 (referring to Dworkin’s tendency to “run together the claim that “such-and-such is a valid law in this jurisdiction” with claims about which party ought to prevail in some particular dispute” as “the most persistently annoying feature of his work”).

73. Luban, supra note 53 at 8.

74. This is, in fact, the obligation of prosecutors. See Model Rules, supra note 37, Rule 3.8(g), (h).

75. See, e.g., Freedman, Monroe H & Smith, Abbe, Understanding Lawyers’ Ethics, 4th ed (Lexis Nexis, 2010) at §§ 5.03–5.04.Google Scholar

76. Jeremy Bentham, Rationale of Judicial Evidence, ed by John Stuart Mill (Hunt and Clarke, 1827) at § 301 (contending that, without the attorney-client privilege, “a guilty person will not in general be able to derive quite so much assistance from his law advisor, in the way of concerting a false defence, as he may do so at present”).

77. 449 US 383 (1981).

78. Ibid at 389.

79. Luban, supra note 5 at ch 3 (“Natural Law as professional ethics: a reading of Fuller”). For the history of Fuller and the legal process school and their place in American legal thought, see Neil Duxbury, Patterns of American Jurisprudence (Clarendon Press, 1995) at 210-32; Geoffrey C Shaw, “H.L.A. Hart’s Lost Essay: Discretion and the Legal Process School” (2013) 127:2 Harv L Rev 666.

80. Waldron, supra note 7 at 26-27.

81. Something like Luban’s sensus communis of decent lawyers in New York City satisfies the sources thesis because it is conventional. The claim is not that lawyers ought to avoid exploiting their adversaries mistakes, but that in fact they do.

82. Ernest J Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988) 97:6 Yale LJ 949. Waldron defines it in this way: “Legal norms present themselves as fitting or aspiring to fit together into a system, each new ruling and each newly-issued norm taking its place in an organized body of law that is fathomable by human intelligence…. Law is not only a system in an institutional sense, however, but in a sense relating to logic, coherence, and perhaps even what Ronald Dworkin has called ‘integrity.’” Waldron, supra note 7 at 33. The reference to Dworkinian integrity in this passage is potentially misleading, because for Dworkin, integrity is a type of coherence among values like justice, fairness, and procedural due process, none of which are limited to conventional norms (i.e. those with a “pedigree” or social source). See Dworkin, supra note 68 at 188-90 (arguing that a community that accepts integrity as a value is a true community, committed to being ruled by a scheme of principles not exhausted by prior political—which is to say, conventional—decisions).

83. Waldron, supra note 7 at 35.

84. See, e.g., Spaulding v Zimmerman, 116 NW (2d) 704 (Minn 1962) (refusing to expand then-existing confidentiality exception to permit disclosure to avoid foreseeable harm to opposing party); Hawkins v King County, 602 P (2d) 361 (Wash App 1979) (declining to impose Tarasoff-type duty to warn parents of client’s foreseeable suicide risk); In re Schafer, 66 P (3d) 1036 (Wash 2003) (suspending lawyer for two years after lawyer disclosed confidential information leading to conviction of judge for corruption).

85. Stephen L Pepper, “Three Dichotomies in Lawyers’ Ethics (with Particular Attention to the Corporation as Client)” (2016) 28:4 Geo J Leg Ethics 1069.

86. See Restatement (Third) of the Law Governing Lawyers § 23(1) (lawyer “retains authority that may not be overridden by a contract with or an instruction from a client … to refuse to perform, counsel, or assist future or ongoing acts … that the lawyer reasonably believes to be unlawful”).

87. Markovits, supra note 4 at 93-94.

88. See Model Rules, supra note 37, Rule 2.1, commentary [1] (“Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront.… [A] lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.”).

89. See Lacey, Nicola, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford University Press, 2004).Google Scholar