Legal Ethics from the Lawyer's Point of View
Yale Law School
Yale Journal of Law & the Humanities, Forthcoming
This article develops a philosophical distinction between third- and first-personal ethical ideals and applies this distinction to some of the central ethical problems facing lawyers. The article contends that the dominant argument in legal ethics, the adversary system defense, considers legal ethics exclusively from the third-personal point of view of the lawyer's duties to others and consequently neglects important first-personal ethical questions that arise from the point of view of the lawyer herself. The article concludes that even a successful development of the adversary system defense therefore leaves essential features of the ethical experience of lawyers unaddressed, and it presents an unconventional interpretation of ideas involving the ethics of role that recasts these ideas as filling in the ethical gaps that the adversary system defense leaves open. Finally, the article considers the sociological and cultural structure of the legal profession, as it has evolved over the past century or so, and argues that even as the gaps in justification left over by the adversary system defense have grown larger, the role-ethic that is necessary for filling these gaps has been rendered culturally less available to modern adversary lawyers. In this way, the philosophical focus on the first-personal component of legal ethics connects to the lived experience of modern adversary lawyers by explaining that insofar as there is a crisis in the contemporary legal profession, this crisis is ethically justified.
Date posted: February 27, 2003
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