The Morals and Politics of Adversary Lawyers - Florida State ...

oles’ distinctive status concerning first-personal ethics. 143 Taken as a unit,
the roles were no doubt accountable, in the third-person, to society in
general (although the form of this third-person accountability was as a
historical matter, almost certainly not impartial). But the internal affairs of
the role may have remained strictly internal, governed by role-bound
rather than ordinary ethical standards. Furthermore, I suspect, although I
shall assume rather than argue this position here, that the role of lawyer
remained similarly insular well into the nineteenth century. 144
But whatever may have been true historically, the modern lawyer’s role
is not any longer sufficiently insular to sustain integrity-preserving rolebased
redescription. Over the course of the twentieth century, the key
elements of insularity have all been eliminated from the lawyer’s role,
which has been given a systematically cosmopolitan reconstruction. First,
lawyers have lost exclusive control over membership in the legal
profession⎯the license to practice law has been characterized by the
Supreme Court as a right, which people may not be deprived of without
due process of law. 145 Second, legal education has moved from the
apprenticeship to the university. Instead of learning by emulating the
practices and habits of mind of established practitioners, young lawyers
today learn in classrooms using generally available texts (available to nonlawyers
as well as to lawyers) presented by professors (and not
practitioners) whose allegiance is to general academic standards of truth
rather than to specifically lawyerly ethical ideals. And third, and most
importantly, the nature, source, and status of the ethical principles
governing lawyer’s professional conduct have all changed dramatically
(even though the literal content of these principles has not changed very
143. Arthur Applbaum’s ethical portrait of Charles-Herni Sanson, Executioner of Paris
throughout the period of the French Revolution, reveals the extremes of insularity that historical roles
sometimes attained. Sanson appears to have lost himself, completely and utterly unselfconsciously,
inside his role, accepting no ethical ideas or authority from outside the role. Furthermore, as the fact of
Sanson’s longevity reveals, this view of Sanson’s role-insularity and unaccountablity to ordinary
morality was widely shared. Sanson executed noblemen at the beginning of the revolution, moderates
during the Terror, and, finally, Robbespierre himself; but no side ever charged Sanson with the
partisan causes his executions served, or indeed treated him as anything other than the technical
functionary his role declared him to be. See Applbaum, supra note 111.
It is worth noting that this extremely insular account of roles, though it may have been dominant,
was not uniformly accepted even in past centuries. Montaigne, for example, quite explicitly proposed a
cosmopolitan account of roles, saying “we must play our part [our role] duly, but as the part of a
borrowed character. Of the mask and appearance we must not make a real essence, nor of what is
foreign what is our very own.” MICHEL DE MONTAIGNE, Of Husbanding Your Will, in THE COMPLETE
ESSAYS OF MONTAIGNE 3 (Donald Frame ed., 1958). Furthermore, Montaigne, ever modern, realized
that this account of roles has profoundly disturbing ethical implications for their occupants, much like
the implications I have developed here. Thus, Montaigne believed that because “in any government
there are necessary offices which are not only abject but also vicious,” some citizens must “sacrifice
their honor and their conscience . . . for the good of their country.” MICHEL DE MONTAIGNE, Of the
Useful and the Honorable, in THE COMPLETE ESSAYS OF MONTAIGNE, supra, at 600.
144. Tocqueville’s famous remark that American lawyers had acquired “the tastes and habits of
the aristocracy,” including a “repugnance to the actions of the multitude” and a “secret contempt of the
government of the people,” certainly supports this conclusion. 2 ALEXIS DE TOCQUEVILLE,
DEMOCRACY IN AMERICA 284 (H. Reeve trans., P. Bradley ed., 1945).
145. See Spevak v. Klein, 385 U.S. 511 (1967) (holding that lawyers may not be disbarred for
exercising their privilege against self-incrimination) and In re Ruffalo, 390 U.S. 544 (1968) (holding
that lawyers may not be disbarred without procedural due process). These cases are used by Geoffrey
Hazard to illustrate the legal profession’s loss of self-governance in The Future of Legal Ethics, supra
note 19, at 1255.
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