Publication Title
Case Western Reserve Law Review
Volume
75
Page
473
Year
2025
Abstract
Lawyers sometimes use legally permissible but ethically dubious strategies to avoid the law and at other times they cross the line into illegal law evasion. Between the two is a gray area of conduct highly likely, but not certain, to be illegal known as law “avoision.” Lawyering at the outer limits of the law is controversial in the private sector when lawyers represent clients against the government or against other private parties. The better interpretation of the law may stand on the other side, and the lawyer must decide how far to go in an arguably illegal direction on behalf of the client.
The focus of this Article is lawyers who represent the government, and the lasting damage when avoision becomes the modus operandi inside the government. Government lawyers avoiding or evading the law, or both, become a serious threat to their own clients. In a constitutional republic, the law is the foundation upon which the government client rests. The government lawyer represents the law itself. The law, and this means the better interpretation of the law, must take priority when it conflicts with the objectives of a political superior who possesses power only by virtue of the legal order. Law avoision in this context is fundamentally disloyal to the client.
This Article discusses specific examples of law avoision in government including Justice Department memoranda justifying torture, a President’s attempt to use the Justice Department to overturn an election, Members of Congress and even Supreme Court Justices using law avoision to circumvent financial disclosure requirements, and states using law avoision to circumvent civil rights and voting rights of racial minorities. Law avoision in all these contexts does grave harm to the government and, if taken to extremes, could involve government lawyers dismantling democracy itself.
To combat law avoision inside the government, this Article proposes a clarification of who the client is so government lawyers recognize that the law is their client and that their professional obligation is to advance the best interpretation of the law, not the interpretation of the law that will enable a political superior to do whatever they want to do. This Article also proposes the establishment of a government-wide Office of Professional Responsibility to render formal opinions on, educate and in some instances adjudicate, issues of professional conduct for government lawyers.
Recommended Citation
Richard Painter, Avoision: When Government Lawyers Turn the Sovereign Against Itself, 75 Case W. Rsrv. L. Rev. 473 (2025), available at https://scholarship.law.umn.edu/faculty_articles/1132.
Rights
http://rightsstatements.org/vocab/InC/1.0/
