When Realism and Idealism Collided in Fred Zacharias\u27s Work on the Purposes and Limitations of Legal Ethics Codes

I look back at one of Fred’s early works, a 1993 article entitled Specificity in Professional Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics. Specificity concerns the formal characteristics of legal ethics codes rather than the substantive values they embody. That topic might seem dry, but the article is intriguing because it evidences a clash between idealism and realism in Fred’s thinking. Although both strands of thought were prominent in much of Fred’s work, the clash between them was never starker than in Specificity. There, Fred the idealist offered up an elaborate methodology for drafting of legal ethics codes or specific rules in order to achieve “optimal effect,” while Fred the realist slipped in a number of subversive “asides” that, taken together, make it clear why, at least in modern times, the ABA can hardly be expected to produce ethics rules in a process that even remotely conforms to Fred’s highly rationalistic methodology. Part II boils that methodology down to two principles that cannot do justice to Fred’s nuanced analysis but should suffice to serve my limited purposes here. Part III presents some of Fred’s subversive asides. I conclude by speculating about just how Fred came to write an article in which the tensions between his idealism and his realism were so stark