A Modern Legal Ethics, by Daniel Markovits. Princeton University Press: New York 2008. Pp. 361. $29.95
Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.
The main argument is elegant and provocative. Markovits contends that a central issue in legal ethics should be the “problem of integrity.” Lawyers must be able to integrate their professional commitments into their moral lives. This is the most important insight of the book. Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion. His argument opens up new avenues for thinking about the rules governing lawyers.
On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional obligations. Good lawyering requires what, on ordinary morality, would be considered lying and cheating. These “lawyerly vices” are endemic to the adversarial system, so they can’t be cured by tailoring the rules governing lawyers. Neither is avoiding these vices an option, given their incompatibility with integrity.
For Markovits, there are better and worse ways to solve this problem. Most theories of legal ethics utilize what he calls (after David Luban) the “adversarial system excuse,” or the consequentialist view that the lawyerly vices are justified as part of a legal system that is just overall. Here, if the overall practice is justified, then the integrity issues fall away. Impersonal approaches can only accidentally or incidentally resolve integrity problems.
Interpersonal theories of legal ethics (which he calls “Kantian” approaches) don’t fare any better. On these approaches, principles of legal ethics are acceptable only if they fulfill specified criteria (e.g., that they could be reasonably consented to, that they could not be reasonably rejected, etc.). Yet, Markovits argues, concentrating on fulfilling such criteria raises the same problem as with impersonal approaches: any resolution to the problem of integrity is a byproduct, rather than an important end in itself.
Markovits thinks we must take the “lawyer’s point of view” in order to solve the problem of integrity in the right way, which requires a “first-personal” approach to morality. Markovits calls his version “role-based redescription.” If there were a distinctive, morally worthy role for lawyering, then the lawyer could preserve her integrity by redescribing her professional obligations to lie and cheat as requirements of fulfilling this role.