The Promise and Problematics of Legal Ethics from the Lawyer's Point of View

Abstract

In his rich meditation on the ethical condition of the contemporary American bar, Daniel Markovits couples a philosophic argument about legal ethics with a theory about long-term cultural trends and their effect on the profession. The argument is basically diagnostic. It does not address "whether the present regime of legal ethics - the law governing lawyers as it stands - is justified," "what ethical principles should ideally govern the professional conduct of lawyers," or how lawyers should act in concrete situations. Instead, it takes the "present regime" as a "given" and offers an account of what it must be like - "not psychologically but ethically" - to practice under it. The account purports to explain a "commonly observed crisis" in today's legal profession that may be linked to "other crises of moral justification . . . in the modem world." The explanation on offer is that cultural trends have made it increasingly difficult for "modem adversary lawyers" to justify their practices to themselves by embracing traditional role-based ideals and descriptions of their work. Professor Markovits also claims that normative scholarship in legal ethics has been largely "inadequate to the moral problems that face practicing lawyers' because it fails to attend to the lawyer's own point of view. He hopes that his emphasis on the lawyer's viewpoint can clarify those problems and serve as a first step toward solving them, though he does not explain how. This Essay is a critique of Markovits's argument by an academic lawyer with no formal training in moral philosophy but a sustained interest in what moral philosophy can (and cannot) contribute to normative legal ethics, which I conceive as a practical body of thought generated chiefly within the profession for the purpose of guiding and evaluating lawyers' conduct. Part I highlights the features of the argument that figure in my subsequent analysis. Part II takes up several aspects of the argument that I find problematic, including the account of the history of the American bar that anchors Markovits's conclusion that cultural forces are making rolebased self-justification unavailable to lawyers. Part III begins with a summary of Markovits's imaginative and sympathetic articulation of the "distinctively lawyerly virtues" of loyalty and statesmanship that may have helped lawyers over the years to justify their practices to themselves and thus to preserve their integrity in the face of criticism based on "ordinary morality." Part III then situates those virtues within an ongoing normative debate in legal ethics by considering their "goodness of fit" with the new models of the lawyer's role that Professors Norman Spaulding and Bradley Wendel" have recently developed.