Ethical Lawyering and the Possibility of Integrity

Abstract

The dominant model of ethical lawyering views lawyers as zealous advocates, who do whatever possible within the bounds of the law to serve their client's interests, regardless of what the lawyers themselves think of their client's ends. More recently, however, legal ethics scholars have begun to challenge the hegemony of this model, arguing that ethical lawyering involves not the suspension of moral judgment but the exercise of it. On this alternative "contextual view," lawyers must, as Deborah Rhode puts it, take "personal moral responsibility for the consequences of their professional acts." In developing this alternative model, Rhode and others have focused on the obligations of ethical lawyers. But any complete account of ethical lawyering also needs a theory of moral character. That is, we must ask not only what ethical lawyers do, but what traits of character ethical lawyers possess which make them able to fulfill their moral responsibilities. In this article, I focus on this latter question, and argue that the character traits on which Rhode's contextual model implicitly relies are those commonly associated with people of integrity.

Part I explores both the standard "zealous advocacy" conception of the lawyer's role and the alternative contextual account Rhode develops in her book In the Interests of Justice: Reforming the Legal Profession. Part II provides a brief philosophical exploration into the moral quality of integrity, then returns to Rhode's account to demonstrate the extent to which Rhode's vision of the ethical lawyer depends on lawyers possessing the character traits that comprise integrity. Finally, Part III explores some implications of this dependence for the legal profession itself. It argues that although basic moral character is to some extent shaped long before lawyers enter practice, the institutional structures and practices of the profession can nonetheless have a significant influence on whether a lawyer's integrity is nurtured or undermined. Part III closes by identifying an incompatibility between ethical lawyering and an undue concern with maximizing profit, and argues that engaging in this latter pursuit may undermine the very qualities of integrity on which ethical lawyering on the contextual model depends for its success.

This article was originally published in 2002 in the Fordham Law Review, as part of a symposium in honor of the publication of Deborah Rhode's book, In the Interests of Justice: Reforming the Legal Profession. A lightly edited version of the piece will be reprinted in Professional Ethics and Personal Integrity, Tim Dare and Brad Wendel, eds. (forthcoming, Cambridge Scholars Publishing).

Keywords: ethical lawyering, zealous advocacy, integrity, profit, institutional ethics