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Book Review: Daniel Markovits, A Modern Legal Ethics

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5 Responses

  1. Ken says:

    >>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.

  2. A.J. Sutter says:

    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.

  3. John Steele says:

    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.

  4. Ken says:

    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.

  5. A Policeman says:

    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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