Lawyerly Fidelity: An Ethical and Empirical Critique
NOMOS - American Society for Political and Legal Philosophy (Forthcoming)
23 Pages Posted: 12 Apr 2012
Date Written: 2012
How do lawyers’ loyalty to clients and advocacy on their behalf contribute to political legitimacy? How, if at all, does legal representation facilitate compliance with law? This Article draws on empirical research about lawyers in different areas of practice to suggest the complexity of these questions and offer some possible answers.
The Article begins by examining and critiquing a theory of lawyerly fidelity put forth by Daniel Markovits in a companion article (also in NOMOS). Markovits argues that adversary advocacy – resting on lawyers’ loyalty to clients, client control, and legal assertiveness – leads to fidelity, which in turn contributes in important ways to political legitimacy. However, his construct of lawyerly fidelity presents a narrow, one-dimensional picture of lawyers. It overstates the force and clarity of ethical rules favoring clients and it marginalizes or overlooks lawyers’ ethical obligations to substantive law and to third parties such as agencies and courts.
More significantly, empirical research about lawyers and clients provides an even stronger critique of Markovits’ theory of fidelity. The Article draws on numerous socio-legal studies to demonstrate the considerable variation in lawyers across the profession in loyalty to clients and adversary advocacy. And, of course, many clients with civil law problems lack access to lawyers of any type. The model lawyer for Markovits appears to be a corporate litigator who represents a knowledgeable, well-resourced client. In contrast, most lawyers - whether in business transactional practices or in other areas of law such as family, personal injury, criminal, or bankruptcy – show far less adversary advocacy. The Article concludes with speculation about the implications of these different lawyering styles for clients’ acceptance of case outcomes and perceptions of law.
Keywords: loyalty to client, fidelity, client control, political legitimacy, adversary advocacy, legal profession, compliance, legal ethics, client perceptions, high-volume practice, lawyering styles, representation, repeat players, one-shotters, lawyer as agent, access to lawyers
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