A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview

INTRODUCTION

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 what conduct these values recommend. For other professions—for example, for torturers—professional ethics is an essentially unhappy affair. The torturer’s professional commitments cannot, finally, be seen as anything other than a retreat from ethical life, and so his professional ethics become inevitably a masquerade, which can at most disguise the ethical failings of a basically degenerate occupation.2

There exists also a third class of professions, for which the nature of professional ethics is essentially uncertain. These professions have obvious ethical appeal but also display obvious ethical shortcomings; and although virtuous professional administration may enhance the professions’ appeal and diminish the shortcomings, these will never be more than incremental changes to substantial entries on both sides of the ethical ledger. Accordingly, it is an open question, for such professions, whether a life lived within them may be a life well-lived, overall.

Law is just such a profession. On the one hand, lawyering is intimately connected to the deep and enduring ethical ideals of respect for persons that justice involves. On the other hand, the legal profession also has an ethically troubling aspect. Lawyers—at least when they function as adversary advocates—do not pursue justice itself, directly and impartially. Instead, they are charged loyally to represent particular clients, whose interests and aims may diverge from what justice requires.3 This entails that adversary advocates commonly do, and indeed are often required to do, things in their professional capacities, which, if done by ordinary people in ordinary circumstances, would be straightforwardly

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A Modern Legal Ethics: Adversary Advocacy in a Democratic Age
Table of contents

Table of contents

  • Title Page iii
  • Contents ix
  • Acknowledgments xi
  • Introduction 1
  • Part I Adversary Advocacy 23
  • Chapter 1- The Wellsprings of Legal Ethics 25
  • Chapter 2- The Lawyerly Vices 44
  • Chapter 3- The Seeds of a Lawyerly Virtue 79
  • Part II Integrity 101
  • Chapter 4- Introducing Integrity 103
  • Chapter 5- An Impartialist Rejoinder? 118
  • Chapter 6- Integrity and the First Person 134
  • Part III Comedy or Tragedy? 153
  • Chapter 7- Integration through Role 155
  • Chapter 8- Lawyerly Fidelity and Political Legitimacy 171
  • Chapter 9- Tragic Villains 212
  • Postscript 247
  • Notes 255
  • Index of Cases Cited 341
  • Index of Model Rules and Other Authorities 347
  • Index of Subjects 351
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