Role Differentiation and Lawyers’ Ethics: A Critique of Some Academic Perspectives [formerly titled: Moral Freaks: Lawyers’ Ethics in Academic Perspective]
25 Pages Posted: 31 Oct 2009 Last revised: 27 May 2010
Date Written: May 22, 2010
Much recent academic discussion exaggerates the distance between plausible legal ethics and ordinary morality. This essay criticizes three prominent strands of discussion: one drawing on the moral philosophy of personal virtue, one drawing on legal philosophy, and a third drawing on utilitarianism of the law-and-economics variety. The discussion uses as a central reference point the “Mistake-of-Law” scenario in which a lawyer must decide whether to rescue an opposing party from the unjust consequences of his own lawyer’s error. I argue that academic efforts to shore up the professional inclination against rescue are not plausible. I conclude by recommending an older jurisprudential tradition in which legal ethics is more convergent with ordinary morality.
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