UNC School of Law
The traditional understanding of the relation between law and professional legal ethics is that legal ethics covers matters not covered by law; that ethics sits passively above law, starting where law leaves off. In this Article, Professor Susan Koniak argues that this understanding is wrong. She asserts that professional ethics are in competition and conflict with law as it is embodied in the pronouncements of courts and legislatures. Although "law" is usually considered to be the near exclusive preserve of the state, the Article contends that private groups also have "law," but it is usually called "ethics." The legal profession's ethos is the profession's law-a law maintained by the legal profession, not by the state.
Professor Koniak examines the profession's nomos-its law-and how it contrasts, competes and coexists with the state's law governing lawyers. The Article concludes that the legal profession and the state are engaged in an ongoing struggle over normative space. It contends that the profession is able to maintain its competing vision of the law, despite the tremendous power the state has at its disposal to enforce its view, because the state is weakly committed to its vision of the law governing conduct of the legal profession.
Susan P. Koniak,
The Law Between the Bar and the State
North Carolina Law Review
Available at: https://scholarship.law.bu.edu/faculty_scholarship/2247