A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

By Daniel Markovits | Go to book overview

Chapter 7
INTEGRATION THROUGH ROLE

THE ADVERSARY system excuse that dominates academic debate in legal ethics today, in keeping with the broader tradition of impartialist moral thought to which it belongs, devotes no independent attention to charges that lawyers lie and cheat. Instead of refuting these charges directly, it merely excuses vices that it (implicitly) acknowledges lawyers display, citing the impartially justified division of moral labor that requires lawyers to display them. But this approach cannot satisfy lawyers, who naturally resist these charges and wish not just to excuse the lawyerly vices but rather to deny that they display them at all. Moreover, lawyers’ natural resentment may be given a philosophically rigorous reconstruction, in terms of the idea of integrity. The adversary system excuse fails to sustain lawyers’ integrity, and indeed contributes to placing lawyers’ integrity under threat. Accordingly, a successful professional ethics for lawyers—one that renders the legal profession worthy of commitment— must look beyond the adversary system excuse and indeed beyond impartial morality more generally, to revive the first-personal themes in ethics toward which I have been proceeding.

An alternative tradition in legal ethics, largely developed by practicing lawyers and often stated informally (for example, in memoirs), begins to move in the right direction. This approach takes on the lawyerly vices directly, by means of an argument, involving the ethics of role, that departs radically from the impartialist tradition preferred by scholars. The role-based approach to legal ethics has received a skeptical, even scathing, reception in academic circles, where it has been cast as an effort to supplant impartial moral analysis entirely in favor of self-serving self-reference. But although such skepticism is sensible as far as it goes, it involves a fundamental misunderstanding of the possibilities of role-based ethical arguments. These arguments are most profitably deployed not to compete with but rather to support impartial moral analysis. Rather than seeking to supplant impartial morality, role-based argument proposes to protect the integrity of lawyers against the threat that charges of lawyerly vices continue to pose even when they can be impartially justified, for example by the adversary system excuse. This chapter elaborates the ethics of role and introduces its relation to lawyers’ professional ethics. It sets the stage for the final phase of my larger

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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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