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Book Review: Levin & Mather’s Lawyers in Practice: Ethical Decision Making in Context
posted by Stephen Galoob
Lawyers in Practice: Ethical Decision Making in Context, edited by Leslie C. Levin & Lynn Mather. University of Chicago Press: Chicago, 2012. pp. 370. $39.00
What is the best way to study the ethical world of lawyers? On a “top-down” approach, this study proceeds in two steps: first, we start with the rules of legal ethics (or, perhaps, the moral, legal or political principles that underlie those rules); second, we apply these rules and principles to particular cases that lawyers confront.
The infirmities of the top-down approach are a recurring theme of the essays collected in Lawyers in Practice. Most of the authors in this collection either champion or practice an alternative method, one that is inductive, or “bottom-up.” On this method, when studying the ethical world of lawyers, we should first examine how real-world lawyers confront real-life ethical challenges. In analyzing these responses, we should consider a variety of factors other than the rules or principles of legal ethics that drive lawyers to act in the ways that they do.
Thus, we can restate our opening question more precisely. When studying legal ethics, should we be top-downers, bottom-uppers, or both? Which is the more fundamental task: justifying the rules of legal ethics or explaining how lawyers behave when confronted with ethical challenges? Lawyers in Practice makes these broader questions salient. In this review, I want to offer a chastened case for a top-down approach, while recognizing the important (but ultimately complementary) role that bottom-up methods can play in studying the ethical world of lawyers.
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Before exploring this broader topic, here are some vitals on the book. Lawyers in Practice is a collection of essays that were originally presented at a conference at the University of Buffalo Law School. Levin and Mather provide an introductory essay and short epilogue summarizing some main themes, and essays by David Wilkins and Elizabeth Chambliss explore some methodological issues for the sociolegal study of lawyers’ ethics.
February 14, 2012 at 1:27 am
Posted in: Book Reviews, Law Practice, Legal Ethics
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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.
March 3, 2010 at 11:12 pm
Posted in: Articles and Books, Book Reviews, Jurisprudence, Legal Ethics, Legal Theory
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