A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview

Chapter 8
LAWYERLY FIDELITY AND POLITICAL LEGITIMACY

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 firstpersonal 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 their own and to sustain these ambitions against the insistent encroachments of ordinary first-personal ethics.

The next and final chapter of the book casts doubt over whether contemporary lawyers can meet the second condition, given the state of the bar today, and therefore doubts whether integrity-preserving role-based redescription is ultimately of much practical use to modern lawyers. This chapter, however, takes an initially more positive view of lawyers’ ethics, arguing that there exists a powerfully appealing role-ethic for lawyers, which can more than carry the burden of meeting the first, substantive, condition for successful integrity-preserving role-based redescription. In principle, at least, the legal profession is morally worthy of commitment, all things considered. If legal ethics comes, finally, to an unhappy end, that is only because this is a commitment that modern lawyers, given the way things are with them, cannot bring themselves to make.

The centerpiece of the chapter is an effort to redeem the promise that I have earlier attributed to the lawyerly virtues—in particular to fidelity and its attendant negative capability—by setting these virtues in a political context. I seek, in this way, to demonstrate the importance and even grandeur of these virtues, by explaining just how it is that they allow lawyers to function as the political analogs of Keats’s poets, presiding (as guardians of our outer sensibilities) over the inevitable conflicts that arise in complex, pluralist societies in a way that sustains political order and forestalls civil strife. More specifically, I place lawyerly fidelity and negative capability within a complex of ideas about political legitimacy and in particular about democracy (on whose contributions to political

-171-

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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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