THE WELLSPRINGS OF LEGAL ETHICS
ADVERSARY ADVOCATES practice as partisans in the shadow of the structural division of labor between lawyer and judge and represent particular clients rather than justice writ large. They therefore come under professional obligations to do acts that, if done by ordinary people and in ordinary circumstances, would be straightforwardly immoral. They unfairly prefer their clients over others and, moreover, serve their clients in ways that implicate common vices with familiar names: most notably, lawyers lie and cheat. These vices will play a prominent role in the moral and political discussions to come, and the three chapters that constitute the first part of the book’s larger argument therefore devote themselves to establishing that adversary advocates are in fact necessarily professionally obligated to display them.
Thus I begin, in this chapter, by identifying broad principles of professional conduct that every adversary system must recognize and explaining the genetic pressures that these principles exert on lawyers who practice under them. In addition, I elaborate some on the nature of lying and cheating, in order to forestall the objection that, especially when applied to more modest adversary systems, my argument depends on an unduly rigorous moralism. Then, in chapter 2, I consider the rules through which a regime of professional responsibility might regulate these pressures and argue that, although such rules can cabin lawyers’ professional vices, they cannot eliminate them. Finally, in chapter 3, I present an alternative doctrinal characterization of lawyers’ professional obligations, which answers certain objections that my earlier doctrinal arguments invite. Even as they cement lawyers’ professional obligations to lie and to cheat, the doctrines at issue in chapter 3 also sow the seeds of a distinctively lawyerly virtue, which I introduce at the end of the chapter under the name fidelity. In this way, the first part of the book sets the stage not just for the ethical troubles that will dominate Part II but also for the ethical hopes that will dominate Part III.
Critics of the legal profession often take the law governing lawyers to adopt extreme adversarialism.1 The profession’s defenders respond, sometimes angrily, that the critics wrongly emphasize contingent adversary excesses in the positive practice of lawyering—that they attribute the unprofessional intemperance of a minority of lawyers to the legal