Are Criminal Defenders Different?

No one has done more to expose the jurisprudential incoherence of this view of legal practice than William Simon. In his 1978 article, The Ideology of Advocacy, Simon demonstrated a series of internal contradictions in the most promising attempts to justify the ideology of advocacy. Subsequently, in Ethical Discretion in Lawyering, Simon elaborated an alternative view according to which lawyers must exercise independent judgment in both their choice of clients and their choice of means in pursuing client ends.

In Simon’s view, those who carve out the criminal defense exception have been taken in by what he calls “libertarian” rhetoric stressing the might and malice of the state as adversary. Perhaps “taken in” puts the point too innocuously, since Simon views those he criticizes as active producers rather than passive consumers of libertarian obfuscation.

My first disagreement with Simon is over his choice of terminology. What he calls “libertarian” arguments are in fact nothing but familiar liberal arguments. They share nothing of libertarian theorists’ obsession with property rights, nor of libertarian practitioners’ enthusiasm for camouflage suits, automatic weapons, and isolated Idaho redoubts. In what follows, therefore, I will refer to the position that Simon criticizes as the liberal position.