ABSTRACT
The fundamental question for a theory of legal ethics is what ends, functions and values give content to the lawyer’s role, underwrite specific normative principles telling lawyers how to act, and ground criticism in ethical terms of lawyers who engage in wrongdoing. The question is well known in Charles Fried’s famous formulation, ‘Can a good lawyer be a good person?’1 Stated that way, the issue is presented in terms of the problem of role-differentiated morality. That is, one’s professional role as a lawyer requires or permits actions that would be deemed wrongful by ordinary moral standards. In the advocacy context, these role-acts include things like cross-examining a truthful witness to discredit her testimony, or using some procedural device, such as the statute of limitations, to avoid a judgement on the merits of a claim. The problem of role-differentiated morality arises when one understands these acts in ordinary moral terms under descriptions like ‘lying’ or ‘cheating’.2 It is no answer to say that the acts can also be described in role-specific terms, such as ‘cross-examination’ or ‘filing a motion’ because the descriptions in ordinary moral terms persist.3 Arguing for a result contrary to what the lawyer knows to be true is still ‘deception’, even if it can also be described as ‘zealous advocacy’ or ‘putting the other side to its proof’. Because of the persistence of description in ordinary moral terms, there arises a demand for justification, in the terms that one would ordinarily be expected to offer for what is prima facie an interference with the rights of others. The response typically given to this demand has been aptly named the ‘adver-
sary system excuse’ by David Luban.4 Lawyers claim they are not morally accountable for committing acts of deception or cheating because they work within an institutional framework that is designed to accomplish some valuable social end, and realizing this end requires the lawyer to perform certain acts that would otherwise be morally wrong, but for the institutions and procedures of the adversary system. Thus, the description in ordinary moral terms is sort of beside the point, just as describing money as little green pieces of paper (if you’re an American) misses the point of money as a placeholder for value that facilitates exchanges. This is the sort of ‘institutional fact’ that arises only as a result of a complicated set of formal and informal norms respecting how properties of
objects in the natural world, such as green pieces of paper with pictures of dead presidents on them, should be treated.5
