A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview
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NOTES

INTRODUCTION

1. Here I follow PLATO, THE REPUBLIC § 352d (Paul Shorey trans., 1930) in THE COLLECTED DIALOGUES OF PLATO (Edith Hamilton & Huntington Cairns eds., 1961). See also BERNARD WILLIAMS, ETHICS AND THE LIMITS OF PHILOSOPHY 1–21 (1985).

2. Notwithstanding the absurd suggestions otherwise that are currently popular among political figures.

3. The adversary advocate’s duty of loyalty to her client appears on the face of all the major statements of the law governing lawyers in the past century. See CANONS OF PROF’L ETHICS Canon 15 (1908) (requiring a lawyer to represent a client with “warm zeal”); MODEL CODE OF PROF’L RESPONSIBILITY Canon 7 (1969) (requiring a lawyer to “represent a client zealously within the bounds of law”); MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 1 (2003) (requiring a lawyer to act “with zeal in advocacy upon the client’s behalf”). I address these provisions in greater detail in chapter 1.

4. This observation is one of the banalities of legal ethics. Prominent statements include: DAVID LUBAN, THE ETHICS OF LAWYERS, at xiii (1994) (“The problematic aspect of lawyers’ ethics… consists in duties (such as demolishing the truthful witness) that contradict… everyday morality.”); Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060, 1060 (1976) (“The lawyer is conventionally seen as a professional devoted to his client’s interests and as authorized, if not in fact required, to do some things (though not anything) for that client which he would not do for himself.”); David Luban, Introduction to THE GOOD LAWYER: LAWYERS’ ROLES AND LAWYERS’ ETHICS 1 (David Luban ed., 1983) (“The authors [in this collection] address the fundamental problems of legal ethics: does the professional role of lawyers impose duties that are different from, or even in conflict with, common morality?”); Gerald Postema, Moral Responsibility in Professional Ethics, 55 N.Y.U. L. Rev. 63 (1980) (“Yet, lawyers also claim special warrant for engaging in some activities which, were they performed by others, would be likely to draw moral censure.”) [hereinafter Postema, Moral Responsibility in Professional Ethics]; Gerald Postema, Self-Image, Integrity, and Professional Responsibility, in THE GOOD LAWYER: LAWYERS’ ROLES AND LAWYERS’ ETHICS, supra, at 286, 287–88 [hereinafter Postema, Self-Image, Integrity, and Professional Responsibility] (“Sometimes with discomfort, sometimes with pride, lawyers acknowledge that the legal profession permits or requires actions that would draw moral censure if performed by others.”); Bernard Williams, Professional Morality and Its Dispositions, in THE GOOD LAWYER: LAWYERS’ ROLES AND LAWYERS’ ETHICS, supra, at 259, 259 (“[I]t is the possibility of a divergence between professional morality and ‘ordinary’ or

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