Misunderstanding Lawyers’ Ethics
MISUNDERSTANDING LAWYERS’ ETHICS
Monroe H. Freedman* Abbe Smith**
A Modern Legal Ethics: Adversary Ethics in a Democratic Age. By Daniel Markovits. New Jersey: Princeton University Press. 2008. Pp. xii, 361. $29.95. The title of Daniel Markovits’s book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers’ eth2 ics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits’s treatment of lawyers’ ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their “professional viciousness” (p. 36), and how lawyers can achieve a guilt-free professional identity “worthy of . . . commitment” (p. 2). Markovits’s goal in the book is to “articulat[e] a powerful and distinctively lawyerly virtue” (p. 2), one that will provide “ethical vindication of [lawyers’] professional lives” (p. 5). Markovits believes that, in so doing, he will also offer “insights beyond legal ethics, concerning the generally fractured state of modern moral life” (p. 6). Notwithstanding the efforts of a serious young scholar, Markovits’s book falls short. Our focus in this review will be on his discussion of the ethics of adversary advocacy, which is the subtitle and predominant part of the book. Markovits is concerned with how a lawyer’s professional life can be ethically satisfying (p. 1). He contends that lawyers’ lives are not “well3 lived,” because they feel guilty. The source of that guilt, according to Markovits, is that lawyers are compelled to lie and cheat, routinely and viciously (p. 9). Markovits begins his analysis with the adversary system, which combines partisan representation with impartial adjudication (pp. 4, 6–8). He notes that the lawyer’s role in an adversary system is client-centered— lawyers are required to be loyal to the clients they serve. That loyalty obliges the lawyer to accept what the client wishes to achieve in the
Monroe H. Freedman* Abbe Smith**
A Modern Legal Ethics: Adversary Ethics in a Democratic Age. By Daniel Markovits. New Jersey: Princeton University Press. 2008. Pp. xii, 361. $29.95. The title of Daniel Markovits’s book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers’ eth2 ics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits’s treatment of lawyers’ ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their “professional viciousness” (p. 36), and how lawyers can achieve a guilt-free professional identity “worthy of . . . commitment” (p. 2). Markovits’s goal in the book is to “articulat[e] a powerful and distinctively lawyerly virtue” (p. 2), one that will provide “ethical vindication of [lawyers’] professional lives” (p. 5). Markovits believes that, in so doing, he will also offer “insights beyond legal ethics, concerning the generally fractured state of modern moral life” (p. 6). Notwithstanding the efforts of a serious young scholar, Markovits’s book falls short. Our focus in this review will be on his discussion of the ethics of adversary advocacy, which is the subtitle and predominant part of the book. Markovits is concerned with how a lawyer’s professional life can be ethically satisfying (p. 1). He contends that lawyers’ lives are not “well3 lived,” because they feel guilty. The source of that guilt, according to Markovits, is that lawyers are compelled to lie and cheat, routinely and viciously (p. 9). Markovits begins his analysis with the adversary system, which combines partisan representation with impartial adjudication (pp. 4, 6–8). He notes that the lawyer’s role in an adversary system is client-centered— lawyers are required to be loyal to the clients they serve. That loyalty obliges the lawyer to accept what the client wishes to achieve in the