A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview

Chapter 2
THE LAWYERLY VICES

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 restraints adopted in the positive law governing lawyers.

These claims are essential to my larger argument, most notably to its ambitions to address the essence of adversary advocacy in all forms rather than making a fetish of extreme partisanship. I devote this chapter to defending them. I take up in detail the technical rules through which the positive law restricts the lies that lawyers must (or indeed may) tell and the ways in which they must (or may) cheat and explain how lawyers’ underlying professional duties to lie and to cheat survive these restrictions. Although the argument proceeds through a close reading of the ethics rules that are most prominent in American legal practice today (including some prominent proposals for reform), I approach the positive law not for its own sake but rather in order to illustrate the possibilities and limits of adversary advocacy quite generally. I argue that the restrictive rules are necessarily technical and secondary, and that although they create specific (and even substantial) exceptions to the background principles of partisanship inscribed in the genetic structure of the lawyer-client relation, they do not alter the basic nature of adversary advocacy or eliminate the lawyerly vices. I argue, moreover, that the resilience that lawyers’ professional duties to lie and to cheat display against rules that limit them in specific cases arises out of the formal contrast between the broad and organic character of the underlying duties and the technical and mechanical character of the limiting rules: by their natures, the technical rules can only moderate, and never eliminate, the obligations that the broad standards create. The engagement with the positive law therefore suggests more generally that no technical

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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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