Further Thoughts about Legal Ethics from the Lawyer's Point of View

Abstract

It is a pleasure to be read and a great pleasure to be argued with. Perhaps the greatest pleasure is to answer, especially insofar as one feels that one's critics have misunderstood or gone wrong. But although it is sometimes helpful to clarify confusions, there is always the risk that an effort to be exhaustive in this respect will become exhausting instead and that a rigorous emphasis on small differences will suppress larger and more important ones. For this reason, and also in order not to abuse the luxury of writing (at least for the moment) last, I shall resist the temptation to defend my earlier argument against every objection at every turn and instead use these pages (in the main) to emphasize the principal themes of the discussion and to articulate continuing disagreements. This approach has its drawbacks, to be sure. For example, the effort to emphasize larger themes requires me to leave many excellent smaller points unaddressed. Moreover, I will undoubtedly fall short of my ambition to convey a fair account of the main lines of disagreement. My view of the broader terrain is itself influenced by the peculiar ground upon which I stand, and even a dispassionate treatment of the differences that these Responses illustrate will inevitably take on something of the character of a rebuttal. But even as I recognize the shortcomings of this approach - and my own shortcomings in executing it - I shall continue to emphasize the main lines of disagreement that the Responses display rather than to vindicate my own position. This effort will be most useful in propelling the discussion forward, even if progress necessarily occurs only in fits and starts. The account of the lawyer's ethical position that I propose in Legal Ethics from the Lawyer's Point of View may be broken, roughly, into three parts, and the three Responses to my argument fortuitously divide their attentions more or less evenly among them. First, I develop a set of quite general philosophical ideas about ethics, which emphasize a structural distinction between third- and first-personal ethical argument - that is, between ethical argument that emphasizes impartial concern for others and ethical argument that emphasizes a person's own projects and plans. I argue that the single-minded pursuit of third-personal impartial morality undermines the integrity of the moral personality, which I claim depends upon sustaining free-standing first-personal ethical commitments. These ideas form the backdrop against which the "extraordinary complexity and intractability" that I claim characterizes the modem adversary lawyer's ethical position arises. Alec Walen, however, doubts whether freestanding first-personal ethical ideals can be justified - and indeed whether they are intelligible at all - and he therefore rejects the philosophical frame into which I place my account of adversary legal ethics.