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A Modern Legal Ethics

A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

Daniel Markovits
Copyright Date: 2008
Pages: 376
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  • Book Info
    A Modern Legal Ethics
    Book Description:

    A Modern Legal Ethicsproposes a wholesale renovation of legal ethics, one that contributes to ethical thought generally.

    Daniel Markovits reinterprets the positive law governing lawyers to identify fidelity as its organizing ideal. Unlike ordinary loyalty, fidelity requires lawyers to repress their personal judgments concerning the truth and justice of their clients' claims. Next, the book asks what it is like--not psychologically but ethically--to practice law subject to the self-effacement that fidelity demands. Fidelity requires lawyers to lie and to cheat on behalf of their clients. However, an ethically profound interest in integrity gives lawyers reason to resist this characterization of their conduct. Any legal ethics adequate to the complexity of lawyers' lived experience must address the moral dilemmas immanent in this tension. The dominant approaches to legal ethics cannot. Finally,A Modern Legal Ethicsreintegrates legal ethics into political philosophy in a fashion commensurate to lawyers' central place in political practice. Lawyerly fidelity supports the authority of adjudication and thus the broader project of political legitimacy.

    Throughout, the book rejects the casuistry that dominates contemporary applied ethics in favor of an interpretive method that may be mimicked in other areas. Moreover, because lawyers practice at the hinge of modern morals and politics, the book's interpretive insights identify--in an unusually pure and intense form--the moral and political conditions of all modernity.

    eISBN: 978-1-4008-2898-2
    Subjects: Philosophy, Law

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
    (pp. xi-xii)
    (pp. 1-22)

    If the basic task of ethics is to say how one should live,¹ then the basic task for a professional ethics is to explain how the actions, commitments, and traits of character typical of the profession in question may be integrated into a life well-lived.

    For some professions—perhaps for medicine—answering this question is an essentially happy affair. The medical profession’s core ethical appeal is never seriously in doubt, and so its professional ethics is primarily concerned with elaborating the values that account for this appeal and analyzing marginal cases (such as end-of-life care), where it is unclear just...

  5. Part I Adversary Advocacy

      (pp. 25-43)

      Adversary advocates practice as partisans in the shadow of the structural division of labor between lawyer and judge and represent particular clients rather than justice writ large. They therefore come under professional obligations to do acts that, if done by ordinary people and in ordinary circumstances, would be straightforwardly immoral. They unfairly prefer their clients over others and, moreover, serve their clients in ways that implicate common vices with familiar names: most notably, lawyers lie and cheat. These vices will play a prominent role in the moral and political discussions to come, and the three chapters that constitute the first...

    • Chapter 2 THE LAWYERLY VICES
      (pp. 44-78)

      In the last chapter, I introduced the principles of lawyer loyalty, client control, and legal assertiveness that together elaborate the genetic structure of adversary advocacy. I argued that these principles subject lawyers to professional obligations to advance legal arguments and factual characterizations that they privately (and correctly) disbelieve, and to exploit undeserved advantages in the services of causes that they privately (and correctly) disapprove. I claimed, moreover, that these obligations are organic features of adversary advocacy, which cannot be cured by technical restrictions that forbid extremes of adversary conduct, and in particular that they are not cured by the technical...

      (pp. 79-100)

      This chapter completes the account of the professional obligations of adversary advocates that I have been developing by introducing the ideal of professional detachment as an organizing idea for these obligations. The chapter serves two purposes with respect to the overall argument of the book. The first flows naturally from what has come before. The discussion of professional detachment returns the argument to the structural themes introduced in chapter 1, closing the circle around the more specialized rules discussed in chapter 2. This reinforces that lawyers’ professional vices are not artifacts of any peculiar development of these specialized rules but...

  6. Part II Integrity

      (pp. 103-117)

      Part I elaborated the lawyerly vices. It identified the professional obligations to lie and to cheat that are inscribed in the law of lawyering as it stands in the United States today, even in the face of the many ways in which the law reigns in adversary excesses. Moreover, Part I argued that these professional obligations are not just idiosyncrasies of some peculiar or extreme doctrinal development in the positive law but are instead immanent in the fundamental structure and everyday practice of adversary advocacy,tout court.

      These professional obligations of adversary advocates constitute an ethical burden, which makes it...

      (pp. 118-133)

      Williams introduced the Jim example and developed the arguments that I have just rehearsed as part of an extended polemic against utilitarianism—which Williams took, metonymically, to represent the third-personal approach to impartial morality more broadly. But the third-personal approach to impartial morality, which also dominates the traditional presentation of the adversary system excuse, presents a particularly immediate and crass threat to integrity, which may be cast in unusually stark terms. Moreover, the language in which the argument concerning integrity has so far been developed exploits these weaknesses to powerful effect.

      This makes it natural to wonder whether the argument...

      (pp. 134-152)

      Lawyers’ professional obligations to lie and to cheat threaten their integrity. Moreover, impartialist moral arguments such as the adversary system excuse—which justify the lawyerly vices only indirectly and as necessarily evils rather than directly refuting that adversary advocates display them—cannot relieve this threat. Indeed such arguments entrench the attack on lawyers’ integrity by increasing the pressure on lawyers to honor the professional obligations at its source. Accordingly, insofar as integrity is a substantial value, the ethical burdens associated with the lawyerly vices require independent attention, of a sort that the impartialist tradition in legal ethics cannot provide, before...

  7. Part III Comedy or Tragedy?

      (pp. 155-170)

      The adversary system excuse that dominates academic debate in legal ethics today, in keeping with the broader tradition of impartialist moral thought to which it belongs, devotes no independent attention to charges that lawyers lie and cheat. Instead of refuting these charges directly, it merely excuses vices that it (implicitly) acknowledges lawyers display, citing the impartially justified division of moral labor that requires lawyers to display them. But this approach cannot satisfy lawyers, who naturally resist these charges and wish not just to excuse the lawyerly vices but rather to deny that they display them at all. Moreover, lawyers’ natural...

      (pp. 171-211)

      Lawyers can successfully employ the ethics of role to preserve their integrity against the charges that they lie and cheat only, as I have said, if two conditions are met. First, the substantive content of the lawyer’s role must support an appealing role-ethic that can rationalize the ways in which lawyers’ professional morality departs from ordinary first personal ethical ambitions (including, in particular, in respect of their professional obligations to lie and to cheat). And second, this role ethic (whatever it is) must be practically accessible to lawyers, who must be able to adopt the idiosyncratic ambitions it elaborates as...

    • Chapter 9 TRAGIC VILLAINS
      (pp. 212-246)

      I argued in Part I that the deep structure of the adversary advocate’s professional role, which is reflected and elaborated by the positive law governing lawyers, subjects lawyers to professional obligations to lie and to cheat in ways that they would ordinarily regard as vicious. Moreover, I argued in Part II that even if the adversary advocate’s professional conduct can be impartially justified, for example, by the adversary system excuse that dominates traditional legal ethics, his moral position nevertheless remains troubling. The tension between his ordinary conceptions of personal virtue, on the one hand, and his professional obligations, on the...

    (pp. 247-254)

    Although this book has taken narrowly legal ethics—the question whether the legal profession is worthy of commitment—for its real as well as its nominal subject, the argument that it has pursued has implications for modern moral life more broadly.

    First, the methodology that the book has employed may be applied elsewhere also, in order better to understand ethical practices besides adversary advocacy.

    This is important. The low regard in which most philosophers hold applied ethics quite generally and the disregard for applied ethics usually displayed by persons who actually inhabit the circumstances that applied ethics addresses suggest that...

  9. NOTES
    (pp. 255-340)