A Modern Legal Ethics

Adversary Advocacy in a Democratic Age

Daniel Markovits

• Publisher: Princeton University Press
• Year: 2010
• ISBN:
  9781400828982
• Topic: Philosophie
• Subtopic: Ethik & Moralphilosophie

A Modern Legal Ethics proposes a wholesale renovation of legal ethics, one that contributes to ethical thought generally.
Daniel Markovits reinterprets the positive law governing lawyers to identify fidelity as its organizing ideal. Unlike ordinary loyalty, fidelity requires lawyers to repress their personal judgments concerning the truth and justice of their clients' claims. Next, the book asks what it is like--not psychologically but ethically--to practice law subject to the self-effacement that fidelity demands. Fidelity requires lawyers to lie and to cheat on behalf of their clients. However, an ethically profound interest in integrity gives lawyers reason to resist this characterization of their conduct. Any legal ethics adequate to the complexity of lawyers' lived experience must address the moral dilemmas immanent in this tension. The dominant approaches to legal ethics cannot. Finally, A Modern Legal Ethics reintegrates legal ethics into political philosophy in a fashion commensurate to lawyers' central place in political practice. Lawyerly fidelity supports the authority of adjudication and thus the broader project of political legitimacy.
Throughout, the book rejects the casuistry that dominates contemporary applied ethics in favor of an interpretive method that may be mimicked in other areas. Moreover, because lawyers practice at the hinge of modern morals and politics, the book's interpretive insights identify--in an unusually pure and intense form--the moral and political conditions of all modernity.

PART I

Adversary Advocacy

Chapter 1

THE WELLSPRINGS OF LEGAL ETHICS

ADVERSARY ADVOCATES practice as partisans in the shadow of the structural division of labor between lawyer and judge and represent particular clients rather than justice writ large. They therefore come under professional obligations to do acts that, if done by ordinary people and in ordinary circumstances, would be straightforwardly immoral. They unfairly prefer their clients over others and, moreover, serve their clients in ways that implicate common vices with familiar names: most notably, lawyers lie and cheat. These vices will play a prominent role in the moral and political discussions to come, and the three chapters that constitute the first part of the book’s larger argument therefore devote themselves to establishing that adversary advocates are in fact necessarily professionally obligated to display them.

Thus I begin, in this chapter, by identifying broad principles of professional conduct that every adversary system must recognize and explaining the genetic pressures that these principles exert on lawyers who practice under them. In addition, I elaborate some on the nature of lying and cheating, in order to forestall the objection that, especially when applied to more modest adversary systems, my argument depends on an unduly rigorous moralism. Then, in chapter 2, I consider the rules through which a regime of professional responsibility might regulate these pressures and argue that, although such rules can cabin lawyers’ professional vices, they cannot eliminate them. Finally, in chapter 3, I present an alternative doctrinal characterization of lawyers’ professional obligations, which answers certain objections that my earlier doctrinal arguments invite. Even as they cement lawyers’ professional obligations to lie and to cheat, the doctrines at issue in chapter 3 also sow the seeds of a distinctively lawyerly virtue, which I introduce at the end of the chapter under the name fidelity. In this way, the first part of the book sets the stage not just for the ethical troubles that will dominate Part II but also for the ethical hopes that will dominate Part III.

Critics of the legal profession often take the law governing lawyers to adopt extreme adversarialism.¹ The profession’s defenders respond, sometimes angrily, that the critics wrongly emphasize contingent adversary excesses in the positive practice of lawyering—that they attribute the unprofessional intemperance of a minority of lawyers to the legal profession as a whole, and certainly that they ignore the many ways in which the positive law expressly limits lawyers’ partisanship.² Although I accuse lawyers of displaying professional vices, I am sympathetic to the professions’ defenders on this point. Philosophical legal ethics should treat legal practice respectfully, and it is a mistake to proceed as if lawyers must serve their clients single-mindedly or to take any other extreme view of the partisanship that lawyers must display. Accordingly, I accept that the partisanship at the core of lawyers’ professional obligations is limited, and indeed encroached on, from all sides by more specific rules of legal ethics that bind lawyers to values besides their clients. I claim only that these constraints do not, and could not possibly, eliminate the lawyerly vices that the underlying commitment to partisanship entails.

It is therefore important to proceed cautiously in writing about the lawyerly vices, and in particular to follow my earlier admonition to avoid sensational cases and instead to focus on the banalities of everyday adversary legal practice. Moreover, it is important to demonstrate that the lawyerly vices are not artifacts of one or another contingent (and misguided) elaboration of the adversary ideal in the positive law but are instead inscribed in the genetic structure of adversary advocacy, in all its forms. My approach reflects these challenges. In addition to preferring the commonplace over the extraordinary, I attend constantly to the distinction between the essential and the merely contingent features of adversary advocacy. Although I will repeatedly take up the positive law of lawyering, often in considerable detail, I will never analyze positive law for its own sake but always, rather, to illustrate the possibilities and limits of adversary advocacy in all its forms. I can therefore accept that the legal profession’s defenders are right about the constraints on partisanship that the positive law incorporates and claim that lawyers nevertheless come under professional duties to lie and to cheat. I argue, moreover, that the formal structure of adversary advocacy means that not just these constraints but any constraints that are consistent with the adversary ideal will necessarily be unable to purge the legal profession of the lawyerly vices.

THREE FOUNDATIONAL PRINCIPLES OF ADVERSARY ADVOCACY

The foundations of adversary advocacy remain constant across all forms of adversary legal practice and therefore do not depend on any particular formulation of positive law. But they are nevertheless inscribed in positive law, including in the ABA’s Model Rules and their several predecessors. The basic structure of adversary advocacy may therefore be discerned from the study of the law governing lawyers. This structure involves three foundational principles, which I call lawyer loyalty, client control, and legal assertiveness.

Lawyer Loyalty

Two provisions of the Model Rules display the basic structure of adversary advocacy in a particularly clear light, and I use these provisions as a template to organize the discussion. Model Rule 1.3 (addressed in this section) establishes the lawyer’s duty of loyalty to her client; and Model Rule 1.2 (addressed in the next) establishes the client’s control over the ends that the lawyer pursues. Both provisions articulate open-ended standards that reflect the basic assumptions of adversary legal practice rather than narrow rules that call for technical application.

Perhaps the adversary advocate’s most familiar duty is to represent her client loyally. This duty of loyalty, which is familiarly expressed in the language of zealous advocacy, has in one form or another maintained a constant presence in all major codes of legal ethics adopted over the past century. The 1908 ABA Canons of Professional Ethics stated that the lawyer should represent her clients with “warm zeal.”³ The ideal was carried forward in the 1969 ABA Model Code of Professional Responsibility: The Canons (announcing the broad norms underlying the Model Code) include the principle that “a lawyer should represent a client zealously within the bounds of the law”;⁴ and the more specific Disciplinary Rules state that “a lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules.”⁵ Much the same duty appears in the Model Rules: Model Rule 1.3 requires lawyers to display “diligence” in serving clients;⁶ the Official Comments to this Rule, which “provide guidance for practicing in compliance with the Rule[],”⁷ add that lawyers should “take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor” and must therefore “act with commitment and dedication to the interest of the client and with zeal in advocacy upon the client’s behalf”;⁸ and the Preamble to the Model Rules mentions zeal three times.⁹ These commands are not controversial. The Restatement of the Law Governing Lawyers summarizes the substance of loyalty, saying that a lawyer must “proceed in a manner reasonably calculated to advance a client’s lawful objectives.”¹⁰ And Hazard and Hodes, who place loyalty at the very center of adversary lawyers’ professional ethics, observe that “the single most fundamental principle of the law of lawyering is that so long as lawyers stay within the bounds of law, they serve society best by zealously serving their clients, one at a time.”¹¹

The law governing lawyers, moreover, shores up the primary duty of loyalty though secondary rules that guard against certain particularly worrisome or prominent forms of disloyalty.¹² The most important of these are the conflict of interest rules, which regulate, or even forbid, a wide range of activities through which lawyers might be tempted to betray their clients. Most generally, these rules impose restrictions—including procedural restrictions requiring written informed consent¹³ and substantive restrictions against waivers of the duty to be competent and diligent¹⁴—on lawyers’ freedom to represent clients when “the representation of one client will be directly adverse to another client”¹⁵ or, more broadly still, when “there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.”¹⁶ More narrowly, the rules take aim at certain especially troublesome behaviors. For example, they forbid lawyers from “using information relating to representation of a client to the disadvantage of the client unless the client gives informed consent.”¹⁷ They impose an outright ban on representations that “involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.”¹⁸ They forbid lawyers from writing themselves into their clients’ wills¹⁹ or appropriating literary or media rights in their clients’ stories,²⁰ and they quite generally insist on substantive fairness in business transactions between lawyers and their clients.²¹ And they forbid lawyers from being paid to represent clients by third parties who interfere with the lawyer-client relationship.²² In these and other ways, the Model Rules emphasize and enforce the lawyer’s duty of loyalty.

Client Control

In spite of its central importance to legal ethics, lawyer loyalty cannot stand alone. Loyalty carries no content apart from the end to which it refers—loyalty, even zealous loyalty, requires an object. And the loyalty and zeal provisions in the ethics codes, even when supplemented by the conflicts rules, do not adequately fix their own objects, because identifying “the client” as the object of the lawyer’s loyalty and the end of her zeal is not enough to fix the lawyer’s professional duties in a meaningful way. Saying simply that the lawyer should be loyal to the client does not determine to what about the client the lawyer’s loyalty should attach, and this choice will dramatically affect the nature of the lawyer’s ethical life. Indeed, in the extreme case, if the lawyer’s loyalty were tied to the client’s interest in moral or legal rectitude—to the client’s justice, as one might say—then the lawyer would cease to be meaningfully an adversary advocate at all. In order to represent her client loyally, she would be required first to judge her client’s cause to determine what protecting his rectitude required. (The ends of the representation, which would depend upon the right outcome of the case, simply could not be identified apart from this judgment.) Lawyer loyalty underwrites a distinctively adversary legal practice only if it is owed more narrowly and immediately to the client than the suggestion about moral or legal rectitude allows. Adversary advocacy—indeed, the structural separation between advocate and tribunal—requires not just loyalty but also a client- rather than justice-centered approach to loyalty.

The ethics codes must therefore supplement the lawyer’s duty of loyalty by specifying loyalty’s ends, and they must (if they are to retain their adversary character) set ends that look more or less narrowly to the client. The codes fulfill both requirements, specifically through provisions that allocate decision-making authority between lawyers and clients in ways that give clients control over the basic purposes of a legal representation—control to fix the objectives that lawyers must loyally pursue. Moreover, the ethics codes establish just how the lawyer’s loyalty will be client-centered, specifically by directing lawyers to pursue clients’ instructions and not just clients’ interests—that is, to defer to clients’ beliefs about what ends they should pursue. The ethics codes allocate authority between lawyer and client in a way that supplements lawyer loyalty with client control and requires lawyers (within limits, of course) to be the servants of their clients’ points of view.

The Model Rules announce the basic principle of client control in Rule 1.2, which gives clients broad power to determine “the objectives of representation.”²³ The Model Code similarly directs the lawyer to “seek the lawful objectives of his client.”²⁴ And the Restatement elaborates on this basic structure of client control, stating that that “[a] client may instruct the lawyer during the representation” and that lawyers should act “to advance a client’s objectives as defined by the client.”²⁵ The convergence concerning client control is not absolute,²⁶ but the basic idea is the same in all three regimes. That is not surprising: “The attorney-client relationship,” as one court has observed, “is one of agent to principal, and as an agent the attorney must act in conformity with his…instructions and is responsible to his principal if he violates this duty”;²⁷ and the ethics codes borrow their ideas about lawyer loyalty and especially client control from the general law of agency.²⁸ The law governing lawyers proceeds, against this background, to elaborate the agency relation between lawyer and client in ways that emphasize client control.

Most importantly, the ethics codes protect client control over ends from encroachment by the lawyer’s superior knowledge and technical expertise, which often pose the gravest threats to client autonomy. Thus, although the ethics codes recognize lawyers’ technical expertise by giving them limited control over the means through which to pursue the ends that clients set,²⁹ the line between “means” and “ends” is given a flexible rather than rigid interpretation—one that emphasizes client control. In particular, choices that would ordinarily be classed as involving mere means and therefore allocated to the lawyer—for example, respecting the aggressiveness of a cross-examination—are treated as involving ends and allocated to the client as soon as they impinge on the client’s broader values. As the comment to Model Rule 1.2 says, when disputes about what would ordinarily be classed as means arise, “lawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.”³⁰ (The juxtaposition of harm to others and cost to the client is striking in this context, and fortifies the client’s right to subject even means to the test of his broader values, because client control over cost is particularly clear and unchallenged.) In this way, the ethics codes restrict lawyers’ control over means to areas in which lawyers have “special knowledge and skill”—in effect, to “technical, legal and tactical matters.”³¹ Indeed, the lawyer’s control over means is best understood not as an independent value at all but rather as an instrument to serve the client’s control over ends: the client’s power to set and pursue ends is made more valuable by giving the client access to a lawyer with discretion to devote her expertise to pursuing the client’s ends more skillfully than the client could do on her own.

Lawyers are, to be sure, permitted, and perhaps even encouraged, to offer clients independent counsel even within the sphere of client authority—that is, not just in matters of technical law but also, as the Model Rules say, concerning “other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.”³² But even the practice of counseling clients concerning the ends of a representation serves, finally, to reemphasize the clients’ ultimate authority over these ends. Lawyers may advise but must never command, and they should take care, in offering advice, to avoid unduly influencing t...