THE SEEDS OF A LAWYERLY VIRTUE
THIS CHAPTER completes the account of the professional obligations of adversary advocates that I have been developing by introducing the ideal of professional detachment as an organizing idea for these obligations. The chapter serves two purposes with respect to the overall argument of the book. The first flows naturally from what has come before. The discussion of professional detachment returns the argument to the structural themes introduced in chapter 1, closing the circle around the more specialized rules discussed in chapter 2. This reinforces that lawyers’ professional vices are not artifacts of any peculiar development of these specialized rules but are instead inscribed in the genetic structure of adversary advocacy. And in this way, the chapter completes the account of the lawyerly vices that will underwrite the effort, in Part II of the book, to elaborate the burden that lawyers’ professional obligations impose on their ethical lives. The chapter’s second purpose is more surprising and also more hopeful. When lawyer loyalty and client control are viewed through the lens of professional detachment, the seeds of a distinctively lawyerly virtue appear. This virtue, which I call fidelity, will figure prominently in Part III, where I discuss the possibility that the life of the lawyer may be worthy of commitment in spite of its attendant vices, so that legal ethics might be brought to a happy conclusion.
The basic doctrine of professional detachment is straightforwardly stated and appears openly on the face of the ethics codes. The interpretation of the doctrine is more complicated, however, and I develop an unconventional reconstruction of the ideal of professional detachment (indeed, the dual, or mirror image, of the more common view). This ideal captures the necessary connection between lawyer loyalty and client control on the one hand, and the lawyerly vices on the other.
The most prominent contemporary statement of lawyers’ professional detachment appears in Model Rule 1.2, which declares that “[a] lawyer’s representation of a client… does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”1