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Criticizing the Obligatory Acts of Lawyers: A Response to Markovits’s Legal Ethics from the Lawyer’s Point of View

Alec D. Walen

Rutgers School of Law, Camden

January 24, 2004

Yale Journal of Law and the Humanities, Vol. 16, No. 1, 2004

It is tempting to think that if the role of being a lawyer is justified, then a lawyer who occupies that role in a way consistent with its justification cannot be ethically criticized for what he does. But Daniel Markovits rightly points out that we cannot rest our ethical inquiry so easily. Even if we suppose that something like our current adversary system, as an institution, is morally justified, something is still ethically askew because lawyers engage in a number of ethically dubious practices, such as papering cases, filing implausible claims and counterclaims, and delaying or extending discovery in order to force advantageous settlements. Markovits claims that “the duties attached to their professional roles require lawyers to lie, to cheat, and to abuse.” But this raises a puzzle. How can we make sense of the thought that certain actions are ethically obligatory, and at the same time that one can be ethically criticized for taking them? Doesn’t criticism imply that one should be acting differently? And if one should be acting differently, how can one also be obliged to act that way?

I argue that Markovits both exaggerates and misdiagnoses the problem. He exaggerates the problem insofar as he argues that in an ideal adversary system, lawyers are ethically obliged to lie, cheat, and abuse. He misdiagnoses the problem insofar as he argues that the tension arises out of a tension between first-person and third- person frameworks for moral justification.

I think a better diagnosis of the puzzle regarding how there can be obligatory actions that nonetheless merit criticism is that the obligations reflect what must be done in the actual world, and the criticisms reflect the way the real world deviates from the ideal. The real world deviates from the ideal world due to a kind of race to the bottom, a race driven by various pressures, including the desire to keep unscrupulous clients with unscrupulous lawyers in check, the economic pressure to win, and the temptations of a false ethical ideology according to which lawyers should do whatever they can do and get away with doing that will help their clients win. The criticism that still attaches to sharp practices, even when they are justified as necessary means of preventing morally deserving clients from being put at an unfair disadvantage, reflects a disgust with the race to the bottom in general. But it also reflects a discomfort with letting the ends justify the means.

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Date posted: January 26, 2010  

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Walen, Alec D., Criticizing the Obligatory Acts of Lawyers: A Response to Markovits’s Legal Ethics from the Lawyer’s Point of View (January 24, 2004). Yale Journal of Law and the Humanities, Vol. 16, No. 1, 2004. Available at SSRN: http://ssrn.com/abstract=1541678

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Alec D. Walen (Contact Author)
Rutgers School of Law, Camden ( email )
217 N. 5th Street
Camden, NJ 08102-1203
United States
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