Why not me? The Morality of Non-Accountability and Other Thoughts on Cancelling Lawyers by W. Bradley Wendel
Year: 2025
Type: article
Abstract: Wendel’s Cancelling Lawyers is a rigorous and thought-provoking book that explores a deceptively simple but most interesting question in legal ethics: Can we hold lawyers morally accountable for their choice of clients? That is, do they owe—and if so, to whom—an explanation when they represent “repugnant” clients? Can lawyers be blamed or criticized—and, if so, by whom—for representing unpopular, harmful, or morally troubling figures, such as sexual predators, terrorists, white supremacists, war criminals, etc? These questions have significant implications for legal practice. The book offers a thoughtful and nuanced inquiry, illustrated by real and genuinely engaging case studies that illuminate multiple aspects of the issue. Cancelling Lawyers is intellectually rich, and I am grateful to Wendel for an exceptionally insightful and rewarding read. This review offers a set of initial thoughts on the moral accountability of lawyers vis-à-vis Wendel’s central thesis. Before proceeding, three preliminary notes are in order. First, although questions of lawyer accountability may arise in both litigation and non-litigation settings, this review focuses on litigation to maintain scope, clarity, and analytical focus. Second, while the book addresses the moral accountability of lawyers in relation to both their choice of clients and the manner in which they conduct litigation, my focus is confined to the former. To keep the analysis “clean,” I shall be assuming that once representation has been undertaken, the lawyer’s conduct is lawful and ethical—marked by sincere efforts to advance the client’s legal rights fairly and decently, without resorting to extreme forms of zealous advocacy or inappropriate practices of partisan representation (such as concealing evidence or engaging in degrading cross-examinations). I acknowledge that these assumptions may not always reflect reality, but I adopt them here to avoid ancillary complications and focus squarely on the central question that animates Wendel’s book: namely whether, as a matter of principle and assuming all else is equal, lawyers are morally accountable for agreeing to represent reprehensible clients, separately from how they carry out the representation. Finally, the literature on lawyers’ moral accountability has focused almost exclusively on common law adversarial litigation, particularly in the U.S. context.1 Yet the question of lawyer accountability is a general one and deserves attention regardless of the mode of litigation or of representation. While Wendel’s case studies are drawn from the U.S. adversarial system, his arguments appear not to be confined to that model. Accordingly, my discussion shall assume a Western legal system without presupposing any particular model of litigation, whether adversarial or otherwise. The book examines actual cases featuring figures who provoke not just moral disapproval, but disgust, fear, or moral outrage. These figures are not merely accused of wrongdoing; they symbolize deeper social harms, such as racism, sexual violence, and anti-democratic violence. Representing such defendants can feel not just charged but complicit. Wendel examines two common lawyerly responses to criticism. The first is institutional deflection: I’m just doing my job. The second is procedural: Everyone deserves a defence. This is the traditional professional script—an appeal to both role morality and the procedural principles of due process. Both appeal to familiar pillars of the rule of law. But both, Wendel argues, fall short. The institutional defense—anchored in role morality—treats professional duty as a moral buffer. But Wendel challenges this insular view. The moral agency of lawyers is not erased by their roles. They remain accountable for their professional actions, including their choice of cases and clients. The procedural defense, by contrast, gestures at liberal principles, including due process, the rule of law, and equality before the courts. Wendel recognizes the force of these principles. But he insists that invoking them abstractly is not enough. A black lawyer who defends a white nationalist or a feminist who represents a sexual predator cannot simply point to general procedural principles of due process. Professional norms and constitutional entitlements do not absolve the lawyer from the need to explain why they chose to represent this client under these circumstances. They must explain why taking up a given case promotes a moral goal. At the very least, they must explain “why me” in a morally intelligible way.2 The central object of Wendel’s critique is the Non-Accountability Principle (NAP). This principle asserts that legal representation is morally neutral: everyone—however reprehensible—is entitled to legal counsel; lawyers may therefore represent clients regardless of the moral valence of their actions. Under this principle, lawyers owe no justification for representing “bad” clients. Representation is an institutional act, not a personal endorsement. NAP rests on two principal sets of considerations. First are professional considerations: lawyers are service providers whose role is to represent others; their very job is to make the best case for their client, regardless of personal views. Second are public-interest considerations: legal representation is essential for ensuring due process and procedural fairness, and legal representation serves to counter structural imbalances—particularly in criminal proceedings where the state holds enormous power.3 While Wendel acknowledges the importance of these considerations, he ultimately rejects NAP as a categorical exemption from moral responsibility. To this end, he draws a vital distinction between permissibility and justifiability. The former refers to what is legally or morally permitted—and clearly, lawyers are permitted to represent anyone. The latter, however, relates to the reasons that make an action morally valuable. Wendel argues that lawyers are permitted to represent repugnant clients, but they are not necessarily justified in doing so unless they can offer a morally intelligible reason for their choice—one that resonates within the moral expectations of their community. Indeed, Wendel invokes a relational conception of morality, drawn from Hume and Strawson. Such morality is not a set of abstract imperatives but a field of mutual expectations and reactive attitudes—praise, blame, resentment, justification—that arise among members of a community (students, employers, ethnical or gender groups, etc). What kind of reasons count as acceptable justification? Wendel canvases a wide range: belief in a client’s innocence (in criminal cases) or rightfulness (in civil cases); commitment to due process; sympathy for the party’s vulnerability; opposition to state power; protecting dissent; and so on. These are morally robust motivations, but there can also be more instrumental ones: financial gain, career advancement, fame, media exposure, etc.4 It seems to me that the book makes a good case for rejecting the two sets of considerations underpinning NAP as a basis for categorically exempting lawyers from moral responsibility. However, I remain the and of that responsibility. I am not that lawyers always a or morally acceptable justification for their choice of clients. This review of my and questions that from Wendel’s and The distinction between permissibility and justification is central to the to representing is legally and morally but not necessarily However, is not why the of representation is merely legal representation is morally to proceedings and why is engaging in The of legal representation as that representing the is but a kind of Indeed, the book invokes the of which to moral But in what is agreeing to represent an a that such representation is not a or a that reactive that the lawyer to to of the the book in morally actions, such as to or in the of These are of morally repugnant in service of good But legal representation is not to such Representing morally clients is a morally as merely in that Wendel’s that the for accountability a and that this not the as a that is a this of the just the of personal from professional morality seems Lawyers who client while legal and are not to who or the they the procedural rights essential for a legal They that are their in and of their legal rights and them before a of a of lawyers are morally justified not in their clients be by a process by particularly when such clients are The that an not simply is in a professional is my is from the that the is the who may be morally for doing The law in doing so, on Yet most cannot the law on their The legal system is therefore on lawyers for just as are on lawyers to and make of the It seems to that while the legal system this the of of lawyers is merely a as legal have that legal and as as to the law and to are for the rule of for the morality of and for the of from the of any particular law. legal representation is a for the law intelligible and is at that legal representation is, morally to in the of legal rights for personal and to as of that are of the of the question is not “why me” “why not The that legal representation is morally justified regardless of the moral of the case or client is not are of action moral when a particular is morally due to or The to is and that morally justified when is for is not morally when commitment to is not on the moral of of holds moral of the of the a to is morally or when the is the more the the more the moral case for protecting The of the not the of the on the such are most when they in relation to The to not cannot be to is justified to to that The holds for the to which we when or this is at to that the to legal this is what lawyers morally when the of legal rights is morally It is therefore to the of legal representation in of to the rule of law, procedural and due of in of the of representation and of I that the to legal representation has not been in the of moral accountability to whether their is in the very of to represent a repugnant of the whether is on the of that representation such more or moral to this the and of their To the importance of the distinction between and of the between and the of the he argues that is good to to but in no is good to to or client his or However, the is not between and but between and legal this there to be no reason to that is good regardless of the moral of the and regardless of the of such the to the of due process and procedural in legal representation not necessarily in a case but in the client an and in the of the when on the To be the so are of general also to However, the procedural offers reasons that a more the of legal representation. This is this a set of namely to and to due process and procedural fairness, the and by the of legal representation is particularly in the criminal given the of between the and the and the by a The book acknowledges the importance of legal representation as a matter of general However, argues that the of representing a given client cannot on the abstract importance of legal representation. It must be in given by the reasons that a lawyer to represent a particular client in circumstances. 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A lawyer have while representing a while representing a The morality of the lawyer’s is, in principle, from the morality of the of the the former. this is the basis for the of moral the discussion must not be confined exclusively to the representation of reprehensible clients or to the to representation. 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This in the proceedings and the of the Second both the to legal representation an of of the and of the and the legal process These defendants to their of legal not just to the but also to their of which the as These that legal representation not for lawyers and but also for clients They that moral accountability not to lawyers who but also to also to lawyers who to This review has a and questions which from Wendel’s I to questions to my remain in the literature and which Wendel is particularly to the for moral accountability arise from the of legal representation or from a that representation as morally significant regardless of This distinction may both the and the of the accountability whether to clients who are reprehensible in or if the case at not moral is the analysis in legal such as or the Wendel’s moral assume a particular model or of legal or to lawyers in more or moral expectations client the relational of accountability out in to or in relation to as to A the moral analysis the book What are the implications for service providers and Can Wendel’s distinction between professional and personal morality law to illuminate the of more do or when their professional moral that or are more by such as or in or What who may be to that their personal or for charged I Wendel’s book thought-provoking and on a question I have not in It offers a to reflect on the moral of lawyers’ of clients. I am by Wendel’s that a lawyer’s to represent a particular client their conduct of litigation more is not from criticism. However, I remain the and of such and whether is on a moral or merely a that I am more to a of that in cases where the of representation is in the lawyer’s to a community of or a lawyer representing a white or a feminist representing an accused these explanation may be by members of the lawyer’s community or the lawyer has a and contrast, in or of the I that lawyers be to a moral or justification for their choice of clients. such NAP seems to be lawyers to so to both the of their representation and the of their professional
DOI: 10.1093/jrls/jlaf012
Author: Rabeea Assy
Institution: University of Haifa
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
Estimated APC paid: $4,043
OpenAlex ID: W4417526404
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