Yale Law Journal
Legal Ethics; Professional Responsibility; Integrity; Justice; Duty of Loyalty
Daniel Markovits’ recent book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, begins by articulating an ethical quandary common to litigators: how can I advocate zealously for a client whose story might not be true and whose causes might not be just? In Markovits’ hands, the dilemmas of the adversary advocate are transformed into a philosophical puzzle about the nature of integrity and the very idea of fidelity to a client. Lawyers face a far more onerous ethical burden than is sometimes recognized, Markovits argues, for the adversary advocate in our legal system is professionally obligated to lie and cheat. It turns out, he argues, that such lawyer behavior is in principle justifiable, for it is part of what allows our society to have an institutional structure of adjudication that enjoys the virtue of political legitimacy. The political legitimacy of adjudication depends upon the availability of lawyers who give their clients voice and take fidelity seriously. The review essay takes issue with every one of Markovits’ basic claims, devoting special attention to refuting his claim that lawyers are professionally obligated to lie. Representing one’s client’s position when one is unsure of its truth is a far cry from lying, and the distinction matters a great deal. The review essay concludes, however, by returning to what generated Markovits’ project: some lawyers’ perceptions of themselves as lacking integrity, because they often advocate on behalf of causes that run counter to their own moral and political inclinations. The problem, I argue, is that there is no guarantee that justice-reinforcing activity of giving clients a voice will lead to justice being done. That is because there are many forms of justice – including, at least, constitutive justice, corrective justice, retributive justice, and distributive justice – and these forms of justice are not congruent with one another. Lawyers should deal with misgivings about their integrity by practically engaging with our system in ways aimed to diminish the incongruities of justice, not by wrapping themselves in the cocoon of a detached professional role.
Benjamin C. Zipursky,
Integrity and the Incongruities of Justice: A Review of Daniel Markovits, A Modern Legal Ethics, 119 Yale L. J. 1948
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/672