Book Review: Daniel Markovits, A Modern Legal Ethics
posted by Stephen Galoob
A Modern Legal Ethics, by Daniel Markovits. Princeton University Press: New York 2008. Pp. 361. $29.95
Daniel Markovits’s A Modern Legal Ethics could change the way we think about legal ethics, although not necessarily far enough or in only the right directions.
The main argument is elegant and provocative. Markovits contends that a central issue in legal ethics should be the “problem of integrity.” Lawyers must be able to integrate their professional commitments into their moral lives. This is the most important insight of the book. Other commentators have noted the problem of integrity, but Markovits offers the most sustained and nuanced discussion. His argument opens up new avenues for thinking about the rules governing lawyers.
On Markovits’s telling, the lawyer’s integrity is directly challenged by her professional obligations. Good lawyering requires what, on ordinary morality, would be considered lying and cheating. These “lawyerly vices” are endemic to the adversarial system, so they can’t be cured by tailoring the rules governing lawyers. Neither is avoiding these vices an option, given their incompatibility with integrity.
For Markovits, there are better and worse ways to solve this problem. Most theories of legal ethics utilize what he calls (after David Luban) the “adversarial system excuse,” or the consequentialist view that the lawyerly vices are justified as part of a legal system that is just overall. Here, if the overall practice is justified, then the integrity issues fall away. Impersonal approaches can only accidentally or incidentally resolve integrity problems.
Interpersonal theories of legal ethics (which he calls “Kantian” approaches) don’t fare any better. On these approaches, principles of legal ethics are acceptable only if they fulfill specified criteria (e.g., that they could be reasonably consented to, that they could not be reasonably rejected, etc.). Yet, Markovits argues, concentrating on fulfilling such criteria raises the same problem as with impersonal approaches: any resolution to the problem of integrity is a byproduct, rather than an important end in itself.
Markovits thinks we must take the “lawyer’s point of view” in order to solve the problem of integrity in the right way, which requires a “first-personal” approach to morality. Markovits calls his version “role-based redescription.” If there were a distinctive, morally worthy role for lawyering, then the lawyer could preserve her integrity by redescribing her professional obligations to lie and cheat as requirements of fulfilling this role.
Markovits derives such a lawyerly role from two distinctive “lawyerly virtues,” fidelity and negative capability. Fidelity involves concern not only for advancing a client’s ends, but also for identifying (and deferring to) her views about what those ends are. Negative capability is the self-effacing capacity to speak from the point of view of another. Although Keats thought this was a virtue of poets, Markovits sees it as a virtue of lawyers.
Markovits argues that such a role could vindicate the lawyerly life. If the legal system itself is justified (perhaps on something like the “adversarial system excuse”), then lying and cheating can be redescribed as the hallmarks of advocacy within the system. The lawyer could plausibly see her advocacy as part of a process that enhances overall political legitimacy. Despite this possibility, Markovits argues, role-based redescription won’t vindicate the lawyerly life because it is practically inaccessible to lawyers. Contemporary society simply does not allow the insularity necessary to sustain such a role for lawyers.
Thus, Markovits views lawyers as doomed to lives that lack integrity. Given the professional obligations to lie and cheat, no lawyer’s professional life could be worth committing to. The only route for resolving these conflicts of integrity is unavailable. A Modern Legal Ethics is, then, skeptical about the possibility of legal ethics in the modern world. The lawyer is effectively condemned to an ethical version of Rainier Wolfcastle’s response in this exchange from The Simpsons:
Jay: “How do you sleep at night?”
Rainier: “On top of a pile of money with many beautiful ladies.”
* * *
After Markovits, the problem of integrity is (or should be) a central question in legal ethics. However, we need not accept Markovits’s tragic and skeptical conclusion. We can question both his diagnosis of the problem of integrity and his solution to it.
Let’s take the solution first. Resolving the problem of integrity does not require taking “the lawyer’s point of view,” or utilizing a subjective, first-personal approach to legal ethics. Contra Markovits, “Kantian” approaches of legal ethics can assign the right kind of importance to integrity. These approaches are actually better equipped to resolve the problem of integrity than first-personal approaches.[1]
Consider an account of legal ethics framed in terms of “reasonable accommodation” like the one Seana Shiffrin has offered for contract law. Shiffrin argues that “legal rules should be sensitive to the demands placed on moral agents so that law-abiding moral agents do not, as a regular matter, face substantial burdens on the development and expression of moral agency.” (The Divergence of Contract and Promise, 120 Harv. L. Rev. 708 (2006)) Applied to the rules of professional ethics, the primary question in evaluating requirement or permission is whether we could reasonably expect an ethical person to abide by it, in light of her moral agency. Provisions that fail this test can be rejected as overly demanding. Indeed, Markovits actually employs an argument like this when criticizing impartial approaches to morality as placing “unreasonable” demands on the agent to revise her ground projects.
This approach is clearly “second-personal,” in Markovits’s terms. Yet it also accommodates integrity by assigning non-derivative importance to an agent’s commitments, which define the contours of what she could reasonably be expected to reject. Thus, we need not take the “lawyer’s point of view” in order to resolve the problem of integrity.
This reasonable accommodation approach also avoids the ethical reconstruction that Markovits deems necessary to vindicate the lawyerly life. What matters is articulating a standard for professional ethics that could apply to otherwise ethical people. We needn’t convince the lawyer that he’s Atticus Finch in order to determine whether he should (or should be allowed to) refuse to answer a compound interrogatory. Most importantly, this approach does not invite skepticism about the possibility of a modern legal ethics, as does Markovits’s position.
* * *
What about the diagnosis of the problem of integrity? Others have disputed whether lying and cheating (which, for Markovits, give rise to the problem of integrity) are necessary features of legal systems. I want to question another aspect of the diagnosis: that the “lawyerly vices” diverge from ordinary morality in the first place.
This divergence plays a significant role in Markovits’s argument. An unchecked divergence renders the lawyerly life unworthy of living. If the lawyer’s professional obligations did not substantially depart from his everyday moral commitments, then (on Markovits’s formulation) there would be no problem of integrity.
To be fair, most academic commentary on legal ethics relies on some variation of this empirical claim that legal ethics diverge from ordinary morality. Yet no systematic empirical evidence confirms this hypothesis, and there’s significant reason to doubt it. For example, empirical evidence suggests that ordinary morality is supple (see the evidence summarized in J. M Doris, J. Knobe & R. L Woolfolk, Variantism About Responsibility, 21 Philosophical Perspectives 183 (2007)). Perhaps it is supple enough to address many seemingly divergent requirements of legal ethics. Moreover, many plausible moral views allow a person’s responsibilities to depend on (and arise out of) her special relationships. Finally, ordinary morality seems far more in line with the standards of legal ethics about, e.g., prohibitions on sexual relations with clients than about, e.g., the adequacy of disclosing conflicts of interest for resolving conflicted representations.
Many academic commentators (including Markovits) attempt to justify the divergence of legal ethics from ordinary morality. Yet we don’t know whether this divergence exists, or if so what it looks like. Finding out is important for assessing Markovits’s position, as well as for figuring out how to think about legal ethics in the first place. Reconstructive efforts, like the one Markovits offers in A Modern Legal Ethics, are dazzling and difficult, but ultimately they might not be necessary or helpful.
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Stephen Galoob is a graduate student in the Jurisprudence and Social Policy program at the University of California-Berkeley. He would like to thank David Fontana, Mindy Galoob, Adam Hill, Daniel Ho, and Daniel Solove for their support.
[1] In chapters 4-6, Markovits rejects these “second-personal” theories as inadequate because of their impartiality. Yet both his description and analysis of these theories is seriously flawed. For example, T.M. Scanlon’s position that generic principles of right and wrong must satisfy a test of reasonable rejection would qualify as “Kantian,” but not as “impartial” in the way Markovits describes. Markovits does not extensively consider Scanlon’s position, which is arguably the most important in contemporary normative ethics. Instead, Markovits focuses primarily on a view that he attributes to Christine Korsgaard; yet he does not discuss two highly relevant essays ( “The Right to Lie: Kant on Dealing With Evil” and “Creating the Kingdom of Ends: Reciprocity and Responsibility in Personal Relations”) where Korsgaard addresses many of the issues that Markovits raises. Markovits also considers and rejects Samuel Scheffler’s proposal for reconciling personal projects with the demands of impartial morality; yet this consideration does not include any of Scheffler’s recent work on the subject or the significant literature it has inspired. See, e.g., Scheffler, Human Morality; Liam Murphy, Moral Demands in Nonideal Theory. Much of this literature concerns how to vindicate personal integrity without the resorting to the kind of subjective approach that Markovits favors.
March 3, 2010 at 11:12 pm
Posted in: Articles and Books, Book Reviews, Jurisprudence, Legal Ethics, Legal Theory
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Responses (5)
Ken - March 4, 2010 at 11:25 am
>>Good lawyering requires what, on ordinary morality, would be considered lying and cheating.>>
I consider that to be totally bogus, and I find it offensive.
And I’m not even a lawyer!
In my career in software, I had many occasions to represent my firm to clients and potential clients. I was a highly biased advocate for our position, which frequently put us into a competitive situation against the most powerful adversaries, such as IBM, with resources far surpassing our own. In those situations I told our clients and prospects, in no uncertain terms, why our software was superior to IBM’s, and would do a better job for them.
I felt no obligation to make an “unbiased” presentation, explaining also the advantages of IBM’s software in other aspects of its performance. I slept well at night knowing that I NEVER lied, NEVER cheated, and at the same time NEVER did less than my best to advance my own firm.
The job of an attorney in an adversarial advocacy system is NOT to lie and cheat; it’s to sell the position of his client with such convincing arguments that the counter arguments of his equally honest and well-prepared adversary will be less convincing. And if he sticks to that model of advocacy, he should have no trouble reconciling his professional performance with the ethics of his rabbi or priest.
A.J. Sutter - March 4, 2010 at 7:17 pm
Thanks for the warning about this book. Maybe one reason for Prof. Markovits’s misguided generalization about what lawyers do (including, to judge by this review, a belief that all lawyers are litigators, and working in an Anglo-Saxon system) is that the closest he ever came to practice was one year as a Federal appeals court law clerk.
John Steele - March 4, 2010 at 9:56 pm
Ken,
Prof. Markovits concedes that his idiosyncratic definitions of “lying” and “cheating” are meant to be provocative. In my view, his book is based upon a poor description of the law of lawyering and what lawyers actually do.
Ken - March 5, 2010 at 7:31 am
John Steele>>Prof. Markovits concedes that his idiosyncratic definitions of “lying” and “cheating” are meant to be provocative. In my view, his book is based upon a poor description of the law of lawyering and what lawyers actually do.>>
John, thank you for that clarification. Not having red the book, but having red Stephen Galoob’s fairly comprehensive review, I had formed pretty much the same impression(s) of both parts of your clarification.
I am, I suppose, one of the few folks I know who hold attorneys in high regard. Notwithstanding the wealth of lawyer jokes, I have found my lawyer friends to be scrupulously honest, looking for (occasionally even asking me) ways to present their biased advocacy in ways that are convincing without lying and cheating. After all, it is the responsibility of a witness to tell “the truth, the WHOLE truth, …” The honest attorney, OTOH, is still beholden to the truth, but suffers no such obligation for the quantity he presents, nor for which truth he underlines and italicizes.
I find it annoying to have a portrayal which, in order to be provocative, becomes distorted.
A Policeman - December 29, 2010 at 10:49 pm
Just Lawyers being Lawyers – only three people in a courtroom are not required to swear an oath to tell the truth – the two lawyers in front of the bench and the one seated behind it.
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