A Modern Legal Ethics: Adversary Advocacy in a Democratic Age.

• Author: Freedman, Monroe H.
• Position: Book review

A MODERN LEGAL ETHICS: ADVERSARY ETHICS IN A DEMOCRATIC AGE. By Daniel Markovits. New Jersey: Princeton University Press. 2008. Pp. xii, 361. $29.95.

The title of Daniel Markovits's book, A Modern Legal Ethics, (1) gives the impression that it is a comprehensive treatise on contemporary lawyers' ethics. (2) The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits's treatment of lawyers' ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their "professional viciousness" (p. 36), and how lawyers can achieve a guilt-free professional identity "worthy of ... commitment" (p. 2). Markovits's goal in the book is to "articulat[e] a powerful and distinctively lawyerly virtue" (p. 2), one that will provide "ethical vindication of [lawyers'] professional lives" (p. 5). Markovits believes that, in so doing, he will also offer "insights beyond legal ethics, concerning the generally fractured state of modern moral life" (p. 6).

Notwithstanding the efforts of a serious young scholar, Markovits's book falls short. Our focus in this review will be on his discussion of the ethics of adversary advocacy, which is the subtitle and predominant part of the book.

Markovits is concerned with how a lawyer's professional life can be ethically satisfying (p. 1). He contends that lawyers' lives are not "well-lived," because they feel guilty. (3) The source of that guilt, according to Markovits, is that lawyers are compelled to lie and cheat, routinely and viciously (p. 9).

Markovits begins his analysis with the adversary system, which combines partisan representation with impartial adjudication (pp. 4, 6-8). He notes that the lawyer's role in an adversary system is client-centered--lawyers are required to be loyal to the clients they serve. That loyalty obliges the lawyer to accept what the client wishes to achieve in the representation and to use lawful and ethical means for achieving client interests, in particular by maintaining the client's position against any present or potential adversary (pp. 15-16, 35).

This simplified, formalistic description of the lawyer's role is fine as far as it goes. From there, however, Markovits relies on erroneous and unsupported assumptions regarding the nature of law practice and the mental and emotional state of lawyers. The nature of the lawyers' role, he asserts, requires that they violate what everyone, including lawyers themselves, consider moral conduct. His chief evidence of immorality, however, is a peculiar definition of lying and cheating. (4) Because of this lying and cheating, and the guilt suffered as a result, it is not possible for a lawyer to have self-respect (pp. 1, 111).

Markovits contends further that the "adversary system excuse"--that is, the lawyer's critical role in an adversary system--cannot salve this inevitable and pervasive sense of guilt: He says that focusing on the lawyer's adversarial role may excuse such conduct, but it does not deny its "viciousness" (pp. 106-07). Thus, lawyers remain in a state of moral self-hatred.

On this meager and misleading foundation, Markovits argues that lawyers need to "redescribe" their role in terms of a distinctive and new morality, one that is consistent with the requirements of ordinary morality (p. 150). He achieves this by redefining terms so that lawyers can now call virtuous what was previously vicious. Thus, loyalty is recast as "fidelity," and lying and cheating as "nonjudgmental self-effacement" and "giving voice" to those who cannot express themselves (pp. 95-96).

Finally, Markovits argues that these redefinitions will help justify the adjudicatory process by giving participants a reason to accept it as politically legitimate. (6) In short, Markovits constructs a guilt-ridden lawyer out of an idiosyncratic notion of lying and cheating and then purports to save her by recasting her role as that of a self-effacing spokesperson in an adversary system now declared to be legitimate.

Sadly, even after Markovits's makeover, the lawyer remains doomed. According to Markovits, a lawyer can benefit, subjectively, from a redefined role only when the legal community is isolated from the moral judgment of the rest of society. In today's world, however, that kind of insularity is impossible. Thus, lawyers will always be subject to the moral judgment of the general community, which condemns them as liars and cheaters. In the end, the most Markovits can say for lawyers is that they are "tragic villains" (p. 246; emphasis in original).

Markovits was trained in philosophy before attending law school, (7) and, as one commentator has said, his work "may tell us more about current trends in academic moral philosophy than it tells us about the practice of legal ethics." (8) A significant part of Markovits's analysis invokes Kantian moral theory, though not always persuasively. (9) Most importantly for our purposes, Markovits "simply and systematically ignores the human condition[, which] is what law and law practice address." (10)

As Professor Geoffrey Hazard notes, Markovits, like several of his colleagues at Yale and elsewhere, purveys the idea that the practice of law, "as defined by its function, its traditions, and its ethical norms.... [i]s ethically suspect, perhaps evil." (11) We agree with Hazard that this view is not just incorrect, but "demoralizing," especially to law students. (12)

The academics to whom Hazard refers are ignorant of, or choose to ignore, the realities of law practice, and, particularly, of lawyer-client relationships. As former Chief Judge of the D.C. Circuit Harry T. Edwards observes in an earlier volume of this journal, there is a growing disjunction between legal education and the legal profession. (13) Edwards points to "significant contingents of 'impractical' scholars ... who produce[] abstract scholarship that has little relevance to ... issues" that are of interest to judges and practicing lawyers. (14) Although Edwards made these observations some years ago, things have not gotten better. Indeed, legal scholarship seems increasingly inscrutable and obscure. (15)

Of course, we understand that legal theory is essential to law practice. (16) What we object to is impractical theory--exalted as momentous or even meaningful--that is unrelated to the real concerns of practicing lawyers and judges.

Markovits's project is premised upon the assumption that lawyers are burdened by guilt because they are compelled to routinely lie and cheat as part of their professional responsibilities. (17) In his view, this compulsory "viciousness" puts ethical burdens on lawyers who, "for good reason wish to conceive of themselves ... as not vicious at all" (p. 107; emphasis in original). But Markovits's "evidence" that lawyers are burdened by guilt over their professional viciousness is a Catch 22. He argues that the fact that lawyers deny that they routinely lie and cheat is proof of the sense of guilt that dominates their lives (p. 107).

It is not clear where Markovits got the notion that practicing lawyers spend their lives agonizing over (or denying) their viciousness. Certainly, that is not our experience. Nor is it the experience of hundreds of practicing lawyers with whom Freedman has worked during more than half a century as an associate, partner, supervisor, co-counsel, or consultant, or is it the experience of the numerous public defenders, legal aid lawyers, and clinical law faculty, fellows, and students with whom Smith has worked for the past quarter century. (18) For us and for the countless others we have known, the practice of law has been an exhilarating, gratifying, and essentially moral profession of serving others and of maintaining the ideals of our constitutional democracy. (19)

We know of no study that documents widespread lawyer unhappiness due to the ethics of law practice. On the other hand, we are well aware of unhappiness--even some agonizing--among associates at large law firms. (20) But the agonizing we have observed and read about has been over the unreasonable demands on their time, which has significantly interfered with family life. In addition, any concerns over lying and cheating has not related to third parties, but rather to the inflation of billable hours to clients (21)--a serious matter, but not what Markovits is concerned about. Indeed, he specifically declines to talk about the "economic structure of the legal profession." (22)

We are not even certain that lawyers are so unhappy--at least in comparison to other professionals or working people generally. (23) Nonetheless, Markovits tries to demonstrate that lawyers unhappily and routinely lie and cheat by referring to various activities that are common in law practice and that most practicing lawyers consider perfectly ethical. He offers, as an important example, lawyers "lying" in negotiations. However, in doing so, he misstates the Comment to the Model Rules of Professional Conduct, which, he says, "expressly contemplates that lawyers may lie about what their clients will accept to settle a case," (24) and he cites a case in which he says, incorrectly, that a court declined to discipline a lawyer for "puffing" in negotiations. (25)

The Comment to Model Rule 4.1 does say that some misstatements of fact are acceptable as "conventions," that is, as expected and accepted norms of behavior within a group. For example, in the case of lawyers in negotiations, the kind of statement or convention that is referred to is the use of language that is clearly understood by the participants to mean something other than the literal meaning of the words that are used. Thus, if Lawyer D says that his client is willing to pay $100,000 and not a penny more, Lawyer P is not expected to take the statement literally and does not do so. Rather, she...