A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview
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Chapter 4

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 doubtful whether a professional life that includes embracing the lawyerly vices and accepting this burden can nevertheless be worthy of commitment. The second part of the book explains the nature of the ethical burden imposed on lawyers by their professional vices. The main idea of Part II is that only an argument that addresses the lawyerly vices directly can relieve the ethical burden that they impose and so bring lawyers’ professional ethics to a happy conclusion. A subsidiary idea, through which this chapter introduces the main idea, is that the form of argument that dominates traditional defenses of lawyers’ professional ethics cannot satisfy this criterion. Part II therefore establishes the need for the unconventional approach to legal ethics whose possibilities, both in principle and in practice, I examine in Part III.


The dominant argument in legal ethics—especially among defenders of the legal profession but also, serving as a lightning-rod, among the profession’s detractors—is the adversary system excuse. According to this argument, the common perception that lawyers come under professional obligations to do things that ordinary morality condemns is an illusion only, brought on by viewing adversary advocacy through too narrow a lens. A broader view reveals that locally partial lawyers play an essential part in an impartially justified moral division of labor, under which competition among partisan advocates concerned primarily for


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A Modern Legal Ethics: Adversary Advocacy in a Democratic Age


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