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

“legalized,” that is, “converted into rules-backed-by-sanctions.” 151 And
Sol Linowitz finds in this trend a threat to the very survival of the lawyer’s
professional role, claiming that “one of the hallmarks of professional
status is that professionals discipline themselves.” 152 My own way of
putting the point is to say that the lawyer’s role, which was insular, has
become cosmopolitan. Lawyers no longer develop their first-personal
moral ideals exclusively within their roles, and they can no longer resist
the authority of the ordinary first-personal moral concepts employed by
the world at large.
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LEGAL ETHICS FROM THE LAWYER’S POINT OF VIEW
(COSMOPOLITANISM AND THE MODERN LAWYER)
These observations make it possible to return to my initial question and
to ask (now that all the components of the problem have been explained
and put into place) what it is like (what it is like ethically) to be a modern,
cosmopolitan adversary lawyer. Our adversary legal system requires
lawyers not only to display ordinarily impermissible partiality in favor of
their clients, but also to subordinate their ordinary first-personal ethical
ideals of honesty, fair play, and kindness to a professional role in which
they must, in some measure or other, lie, cheat, and abuse. Furthermore,
although third-personal impartial justifications of the lawyer’s
professional activities⎯for example, the division of labor argument
embodied in the adversary system defense⎯may resolve the ethical
problem raised by the lawyer’s partiality, they do not resolve the ethical
problems raised by the accusations that lawyers display certain familiar
vices, especially when these problems are considered from the lawyers’
own points of view. This is because arguments like the adversary system
defense ask lawyers to abandon, in the name of third-personal impartial
morality, the first-personal ideals that they admire and the forms of life
that they aspire to achieve and instead to become, themselves, liars,
cheats, and abusers. In this way, third-personal justifications of the
adversary system, even when they succeed on their own terms, place the
integrity of lawyers under threat by asking lawyers to pursue courses of
action and adopt forms of life that separate lawyers from their firstpersonal
ambitions and ideals.
Furthermore, although role morality might in principle salvage the
lawyer’s integrity even in the face of this threat, and although an
attractive, distinctively lawyerly role-ethic can be articulated, the
increasing cosmopolitanism that modernity has imposed on the lawyer’s
role renders such a role-ethic culturally unavailable to modern lawyers and
in this way secures the assault on their integrity. Put succinctly, modern
adversary lawyers are required to subordinate their ordinary ethical ideals
151. Robert W. Gordon, Is Law Still a Profession? Was it Ever One? And Does it Matter?
Inaugural Lecture as Johnston Professor of Law, Yale University 10 (Mar. 24, 1998) (manuscript on
file with author).
152. SOL M. LINOWITZ, THE BETRAYED PROFESSION 140 (1994).
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