Markovits’s A Modern Legal Ethics

Princeton University Press offers a generous excerpt from Daniel Markovits’s new book A Modern Legal Ethics. Here are some provocative bits from it:

The principal burden of Part I is to render plausible the claims that lawyers are professionally obligated to lie and to cheat, both under the positive law of lawyering as it stands and under any alternative regime of professional regulation. . . . . Unlike juries and judges, adversary lawyers should not pursue a true account of the facts of a case and promote a dispassionate application of the law to these facts. Instead, they should try aggressively to manipulate both the facts and the law to suit their clients’ purposes. This requires lawyers to promote beliefs in others that they themselves (properly) reject as false. Lawyers might, for example, bluff in settlement negotiations, undermine truthful testimony, or make legal arguments that they would reject as judges. In short, lawyers must lie.

And unlike legislators, adversary lawyers should not seek to balance competing interests and claims so that all persons get what they deserve. Instead, they should strive disproportionately and at times almost exclusively to promote their clients’ interests. This requires lawyers to exploit strategic advantages on their clients’ behalves even when they themselves (correctly) believe that the clients are not entitled to these advantages. Lawyers might, for example, employ delaying tactics, file strategically motivated claims, or exploit a law’s form to thwart its substantive purposes. In short, lawyers must cheat.

Despite these charges, Markovits believes that “an alternative approach to legal ethics . . . can render lawyers’ lives ethically appealing and so bring their professional ethics to a successful conclusion.” But he cautions that while “this vindication is possible in principle, recent developments in the structure of the legal profession threaten to deny contemporary lawyers practical access to the ideals on which it depends.” Having enjoyed David Callahan’s The Cheating Culture and Anthony Kronman’s The Lost Lawyer (which also examined the pressures modern firms’ business models put on lawyerly professionalism), I look forward to reading Markovits’s take on this problem.

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