60 University of Toronto Law Journal 1003 (2010)
A court – which is the name given the institution charged with resolving legal disputes at retail – is comprised of three elements: an umpire ( judge or jury), disputants, and advocates. The court’s structural purpose is legitimate (which is not the same thing as just) dispute resolution. No part of the court can stand in for the whole; each is only a part. In order for the court to achieve legitimacy, each of its components must pursue partial aims: the umpire must seek truth and justice, the parties must be free to seek advantage, and lawyers must pursue partisan loyalty.
Lawyerly partisanship thus stands against truth and justice – the court’s legitimacy requires this. Although rules of legal ethics might constrain hyper-zeal, the legitimacy of the court requires that lawyers’ ethics avoid imposing general duties to truth and justice as this would conflate advocate and umpire. This requirement of legitimation is a direct consequence of the familiar fact of moral pluralism. There simply exist no regulative principles – including principles of justice – on which all sides of moral and political disputes can agree. Legitimacy depends on affective engagement with a process; it cannot be sustained by argument. Adjudication is part of this process; and adjudication requires partisan lawyers.
Partisanship is thus ineliminable from the lawyer’s life. Legal ethics must take such partisanship into account. To do so, it must take up problems associated with the lawyer’s integrity. Such questions are not mere navel-gazing but are instead entirely appropriate for a profession whose place in the political division of labour renders conflicts between professional obligations and ordinary moral ambitions particularly clear and stark.
Legal ethics thus cannot – for reasons that apply to ethics quite generally – ever be reduced to generic moral or political theory. And in this sense, taking the lawyer’s point of view in legal ethics is not a sop to local interest but an inevitable part of any serious engagement with the legal facts and moral circumstances of the lawyer’s life.
Date of Authorship for this Version
Markovits, Daniel, "Three Issues in Legal Ethics" (2010). Faculty Scholarship Series. Paper 3868.