Alec Walen


It is tempting to think that if the role of being a lawyer is justified, then a lawyer who occupies that role in a way consistent with its justification cannot be ethically criticized for what he does. But Daniel Markovits rightly points out that we cannot rest our ethical inquiry so easily. Even if we suppose that something like our current adversary system, as an institution, is morally justified, something is still ethically askew. Lawyers engage in, among other ethically dubious practices, "sharp practices - papering cases, filing implausible claims and counterclaims, and delaying or extending discovery - in order to force advantageous settlements." And it is not simply descriptively true that lawyers act this way; their jobs sometimes require them to act this way. Putting the point more generally and more provocatively, Markovits claims that "the duties attached to their professional roles require lawyers to lie, to cheat, and to abuse." Even if the adversary system as a whole is justified, and even if such practices are an essential part of an adversary legal system, we should expect lawyers to be subject to criticism for such behavior. For how can lying, cheating, and abusing be ethically beyond reproach?

But this raises a puzzle. How can we make sense of the thought that certain actions are ethically obligatory, and at the same time that one can be ethically criticized for taking them? Doesn't criticism imply that one should be acting differently? And if one should be acting differently, how can one also be obliged to act that way?