Silent Dissent? Tacitus Against the Lawyers

Abstract

The burden placed on a lawyer in American society is extraordinary. He serves as an advocate, the leading player in our adversarial system. He serves as an officer of the legal system, taking responsibility for the effectiveness and continued development of its rules and regulations. Ideally he plays the role of "a public citizen having special responsibility for the quality of justice." The question of how to manage these roles - some of which are directed toward the success of a client and others which are directed toward justice for the system as a whole - remains a central question. Indeed, as Charles Fried asked, "Does the lawyer whose conduct and choices are governed only by the traditional conception of the lawyer's role, which these positive rules reflect, lead a professional life worthy of moral approbation, worthy of respect - ours and his own?" This matter will continue to be debated among lawyers and judges. At stake in the question is not merely the ethics of individual lawyers, but the rule of law itself. Society sets the highest standards for officers of its judicial system, lest we find ourselves in the awkward position of asking the ancient question, "Who guards the guardians?" Yet while the legal profession must continue to confront this issue, it might be valuable to ask what other figures in society have that responsibility as well. Indeed, a comparison between the role played by lawyers and other actors in upholding justice and the rule of law may shed light on the conditions under which the rule of law thrives and how the officers of the legal system can both help and hinder its survival.