IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER, WHAT IS THE QUESTION?

Author(s): Alice Woolley

Source: The University of Toronto Law Journal , Fall 2010, Vol. 60, No. 4 (Fall 2010), pp.
983-1001
Published by: University of Toronto Press

Stable URL: https://www.jstor.org/stable/40962155

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Alice Woolley* IF PHILOSOPHICAL LEGAL ETHICS IS THE

ANSWER, WHAT IS THE QUESTION?*

Philosophical legal ethics, a sub-discipline of legal ethics arguably initiated

Fried and Richard Wasserstrom, follows a consistent methodological struc
what is the 'standard conception' of the lawyer's role? second, what is the
between the standard conception - the conception of the lawyer as a part
for her client, neutral about (and unaccountable for) the morality of her c
and the claims of morality more generally ? and third, given that relationsh
lawyers do be morally justified? or should what lawyers do be changed? Th
philosophical legal ethics are not primarily doctrinal; they analyse the lawyer
some generality and are fundamentally rooted in philosophy, moral or po
This article uses two recent publications in the area of philosophical leg
Daniel Marhovits's A Modern Legal Ethics: Adversary Advocacy in a D
Age and Tim Dare's Counsel of Rogues? A Defense of the Standard Conce
Lawyer's Role - to argue that the straightforward rhetorical structure of
legal ethics belies the difficulty inherent in analysing something that nece
porates both legality (doctrines of law) and ethics (the ability of a pers
well-lived life), particularly since both legal doctrine and a well-lived l
some relation to the dictates of impartial morality, while yet remaining
distinct from impartial morality. Its seemingly straightforward structure
the risk for philosophical legal ethics of drawing implications from ethic
from law for ethics, even where those implications may be unwarrante
problematic.

Keywords: legal ethics/jurisprudence/law governing lawyers/regulation/

philosophical legal ethics

I Introduction

'Can a good lawyer be a good person?'1

In posing this question in 1976, Charles Fried set the terms of inquiry for
philosophical legal ethics, a sub-discipline of legal ethics arguably initiated

* Faculty of Law, University of Calgary

t Many thanks to Tim Dare, Trevor Farrow, Monroe Freedman, Hamish Stewart, and
Brad Wendel for their comments on drafts of this paper. The errors that remain are,
of course, my own.
1 Charles Fried, 'The Lawyer as Friend: The Moral Foundations of the Lawyer-Client
Relation' (1976) 85 Yale LJ. 1060 at 1060 [Fried]. See also Monroe Freedman,
Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs-Merill, 1975); Monroe
Freedman, 'Professional Responsibility of the Criminal Defense Lawyer: The Three
Hardest Questions' (1966) 66 Mich. L. Rev. 1469; Monroe Freedman, 'Personal
Responsibility in a Professional System' (1977-8) 27 Cath. U.L.R. 191.

(2010), 60 UNIVERSITY OF TORONTO I AW JOURNAL DOI: 10.3138/utlj.60.4.983

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984 UNIVERSITY OF TORONTO LAW JOURNAL

by Fried along with Richard Wasserstrom.2 Philosophical legal ethics

follows a consistent methodological structure: first, what is the 'standard
conception' of the lawyer's role? second, what is the relationship between
the standard conception - the conception of the lawyer as a partisan advo-
cate for her client, neutral about (and unaccountable for) the morality of
her client's aims3 - and the claims of morality more generally? and third,
given that relationship, can what lawyers do be morally justified? or
should what lawyers do be changed? The concerns of philosophical legal
ethics are not primarily doctrinal, analyse the lawyer's role with some gen-
erality, and are fundamentally rooted in philosophy, moral or political. This
article critiques the methodological structure of philosophical legal ethics.
As noted, the rhetorical structure of philosophical legal ethics began
with Fried and Wasserstrom. And, while they identified the standard
conception of the lawyer's role similarly, they fundamentally disagreed
as to its implications. Wasserstrom questioned the morality of acting in
pursuit of another's legal but potentially immoral ends. While a moral
claim could be made for the lawyer's role in the institutional function-
ing of the legal system, and lawyers' conduct might be 'attractive and
admirable,'4 he suggested that lawyers face a peculiar moral catch-
22: they must either embrace the immoral ends for which they
advocate or embrace 'hypocrisy and insincerity,'5 with either choice
effectively compromising the lawyer's own moral integrity.
Fried, by contrast, argued that the lawyer's role as partisan advocate for
her clients was morally justified by the relationship between the person
and the legal system.6 Each of us should be free to pursue lawful purposes
and can, indeed, claim a right to be free to act as we choose within the
bounds of legality; anyone who assists us in pursuing that which we are
legally free to do does, thereby, a moral good.7 A lawyer acts wrongfully
only where he assists his client in violating the law or where he acts immo-
rally outside the bounds of the representation.
Fried and Wasserstrom 's initiation of philosophical legal scholarship
was embraced by other scholars.8 Following Wasserstrom's skepticism

2 Richard Wasserstrom, 'Lawyers as Professionals: Some Moral Issues' (1975) 5 Human

Rts. 1 [Wasserstrom].
3 e.g., Tim Dare, The Counsel of Rogues! A Defence of the Standard Conception of the Lawyer's
Role (Burlington: Ashgate, 2009) at 5-11 [Dare].
4 Wasserstrom, supra note 2 at 6.
5 Ibid, at 14.

6 See Fried, supra note 1. Fried has been the target of criticism; see, e.g., William Simo
The Ideology of Advocacy: Procedural Justice and Professional Ethics' (1978)
Wis. L. Rev. 30 at 108 [Simon, 'Ideology'].
7 Fried, supra note 1 at 1075.
8 For a good overview, see Trevor Farrow, 'Sustainable Professionalism' (2008) 4
Osgoode Hall LJ. 51 [Farrow].

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 985

about the standard conception's moral claim, Gerald Postema9 and

David Luban10 argued that the morality of the lawyer's role depends
on the institutional claim that can be made for the role in particular cir-
cumstances and the weight of competing moral obligations. Similarly,
William Simon argued for reconciliation of professional and personal
morality through orientating the lawyer's professional morality towards
those 'actions that, considering the relevant circumstances of the par-
ticular case, seem likely to promote justice.'11 By contrast, Stephen
Pepper adopted the conclusions of Fried on the moral validity of the
standard conception. Pepper went on to add important qualifications
on the challenges posed by legal realism and argued for moral counsel-
ling to be incorporated into the lawyer- client relationship to ensure it
does not become devoid of moral content.12

These works13 constitute the 'canon.' of philosophical legal-ethics sch

larship.14 Yet the debate reflected there remained largely unresolved. T
standard conception continued to dominate the reality of legal practic
even as Wasserstrom and his successors had together raised linger
questions about its moral legitimacy. In particular, the moral justificati
offered for the standard conception - and specifically Fried's argumen
that anything which is not legally forbidden can be pursued as a matter
right - did not seem sufficient to answer the case that the lawyer's r

9 Gerald Postema, 'Moral Responsibility in Professional Ethics' (1980) 55 N.YU.L.R. 63

83 [Postema! .
10 David Luban, Lamyers and Justice: An Ethical Study (Princeton, NJ: Princeton University
Press, 1988) [Luban, Lawyers]; David Luban, Legal Ethics and Human Dignity (New York:
Cambridge University Press, 2007).
11 William H. Simon, 'Ethical Discretion in Lawyering' (1988) 101 Harv. L. Rev. 1083 at
1090; see also William H. Simon, The Practice of Justice: A Theory of Lawyers' Ethics
(Cambridge, MA: Harvard University Press, 1998) [Simon, Practice].
12 Stephen L. Pepper, 'The Lawyer's Amoral Ethical Role: A Defense, A Problem, and Some
Possibilities' (1986) A.B.F.Res. J. 613 at 617. See, more recently, Robert K. Vischer,
'Professionalizing Moral Engagement' (2009) 104 N.W.U.L.Rev. Colloquy 33, online:
<http://www.law.northwestern.edu/lawreview/colloquy/2009/27/LRColl2009n27Vischer.
pdf>.
13 Along with some others; see, e.g., all texts by Freedman, supra note 1; Robert
W. Gordon & William Simon, 'The Redemption of Professionalism' (1985) 37
Stan.L.Rev. 271; Duncan Kennedy, 'The Responsibility of Lawyers for the Justice of
Their Causes' (1987) 18 Tex. Tech L.Rev. 1157; Ted Schneyer, 'Moral Philosophy's
Standard Misconception of Legal Ethics' (1984) Wis. L. Rev. 1529 [Schneyer].
14 The first wave of philosophical legal ethics was predominantly American. In Canada,
see various papers by Allan Hutchinson, such as 'Calgary and Everything After: A
Postmodern Re-vision of Lawyering' (1995) 33 Alta. L. Rev. 768; Alvin AJ. Esau,
'What Should We Teach? Three Approaches to Professional Responsibility' in
Donald E. Buckingham et ai, eds., Legal Ethics in Canada: Theory and Practice
(Toronto: Harcourt Brace, 1996) 178; Alice Woolley 'Integrity in Zealousness:
Comparing the Standard Conceptions of the Canadian and American Lawyer'
(1996), 9 C.J.LJ. 61.

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986 UNIVERSITY OF TORONTO LAW JOURNAL

has the potential to involve lawyers in moral wrongdoing. It rested on a

particular and rigorous conception of individual autonomy, without
fully justifying why autonomy can only be legitimately constrained by leg-
ality.15 Further, Simon's approach respected morality but could equally
claim consistency with client autonomy - after all, on what basis can a
client claim entitlement to more than a just resolution of her case?
Perhaps for this reason, the last few years have seen the publication of
significant new philosophical legal-ethics scholarship.16 Taking up Fried's
defence of the standard conception, this scholarship has rigorously
engaged with the relationship between the lawyer's role and political mor-
ality. It has also revealed, however, the methodological challenges that
inhere in the philosophical legal-ethics project. Specifically, the
straightforward rhetorical structure of philosophical legal ethics belies
the difficulty inherent in analysing something that necessarily incorpor-
ates both legality (doctrines of law) and ethics (the ability of a person
to lead a well-lived life), particularly since both legal doctrine and a
well-lived life also bear some relationship to the dictates of impartial
morality, while yet remaining in some way distinct.17 Its seemingly
straightforward structure also obscures the risk for philosophical legal
ethics of drawing implications from ethics for law, or from law for
ethics, even where those implications may be unwarranted or actively
problematic.
This article uses two notable examples of the new philosophical legal-
ethics scholarship, Daniel Markovits's A Modern Legal Ethics: Adversary
Advocacy in a Democratic Agem and Tim Dare's Counsel of Rogues? A
Defence of the Standard Conception of the Lawyer's Role,19 to develop this

15 See, in particular, Luban's response to Pepper: David Luban, The Lysistratian

Prerogative: A Response to Stephen Pepper' (1986) A.B.ERes. J. 637 [Luban,
'Lysistratian'].
16 1 identify this new burst of scholarship as notably including Arthur Applbaum, Ethics for
Adversaries: The Morality of Roles in Public and Professional Life (Princeton, NJ: Princeton
University Press, 1999); Dare, supra note 3; Daniel Markovits, A Modern Legal Ethics:
Adversary Advocacy in a Democratic Age (Princeton, NJ: Princeton University Press,
2008) [Markovits]; Norman W. Spaulding, 'Reinterpreting Professional Identity,'
(2003) 74 U. Color. L. Rev. 1; Rob Vischer, 'Legal Advice as Moral Perspective'
(2006) 19 Geo. J. Legal Ethics 225; W. Bradley Wendel, Lawyers and Fidelity to Law
(Princeton, NJ: Princeton University Press, forthcoming) [Wendel, Lawyers]. In
Canada, see Farrow, supra note 8.
17 1 use the generality of 'some relationship' and 'in some way distinct' to incorporate
views as disparate as natural law, exclusive positivism, and inclusive positivism in the
case of legal doctrine; and philosophers such as Bernard Williams, Moral Luck
(Cambridge: Cambridge University Press, 1981) [Williams], who distinguish
impartial morality from the ethical quality of a person's life, as well as those who
claim that there is a closer relationship in the case of a well-lived life.
18 Markovits, supra note 16.
19 Dare, supra note 3.

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 987

position. After summarizing the basic arguments of the two books in Part
ii, I argue, in Part m, for the significance of understanding legal ethics as a
matter of legal doctrine subject to jurisprudential analysis. In Part iv,
I consider the relationship between the impartial moral justification for
the lawyer's role and the lawyer's identification of her life as ethical or
unethical, as 'well lived' or the converse. I argue that, while both the
moral justification for the lawyer's role and the ethics of the lawyer's
life are relevant to the legal-ethics project, they are also fundamentally
distinct and must be understood as such. Finally, in Part v, I suggest
that philosophical legal ethics has focused too much on the ethical
experience of the lawyer's life and should focus to a much greater
extent on what, in a free and democratic society, the role of a lawyer
should be. That is, the question framing the analysis should be not
'Can a good lawyer be a good person?' but rather 'Can a society with
good lawyers be a good society?'

II A Modern Legal Ethics and Counsel of Rogues in brief

Markovits's book begins by reframing Fried's question: Can the 'actions,

commitments, and traits of character typical of the [legal] profession . . .
be integrated into a life well-lived'?20 In so doing, he takes as his exclusive
focus the merits of the lawyer's life given the requirements of the lawyer's
role. He rejects consideration of what the lawyer ought to do given
'general principles of value and right action.'21 Instead, he interprets
and reconstructs22 what the lawyer does do and explores its implications
for the ability of the lawyer to lead a good life, ethically speaking.
Applying this methodology, Markovits argues that the separation of
adjudication and advocacy in the legal system gives rise to the fundamen-
tal obligations observably placed on every lawyer; namely, loyalty, respect
for client determination of ends, and legal assertiveness on behalf of
clients. These fundamental obligations lead inevitably to lawyer violations
of ordinary morality: to fulfil their obligations lawyers must lie ('asserting
a proposition that one privately (and correctly) disbelieves')23 and cheat
('to exploit others by promoting claims or causes that one privately

20 Markovits, supra note 16 at 1.

21 Ibid, at 17-8. Markovits does, at various points, suggest that his project has broader
implications - that it may influence the 'ethical life of the legal profession and
indeed of our wider society'; ibid, at 19. But he only engages with those questions
indirectly, not directly. He suggests that 'how that influence plays out depends on
further ethical interventions, of a nonphilosophical nature, which my philosophical
account of legal ethics necessary leaves somewhere off the page'; ibid, at 1.
22 Ibid, at 19; emphasis in original.
23 Ibid, at 35.

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988 UNIVERSITY OF TORONTO LAW JOURNAL

[and correctly] thinks undeserving').24 Constraints placed on lawyers

conduct ameliorate, but do not eliminate, lawyerly lying and cheating.25
Given this, can a lawyer achieve a life well lived? A well-lived life requires
identification and achievement of one's 'first-personal' moral commit-
ments - the things which justify 'from the agent's own point of view . . .
his efforts to live according to his own suitable life plan and to achieve
his own admirable ends.'26 Therefore, for a lawyer to have a well-lived life
requires her to have a first-personal commitment to the actions she takes
as a lawyer. Yet doing so is inherently impossible because being a lawyer
requires violating first-personal commitments to honesty and fair play.
Markovits considers whether a first-personal commitment to the
lawyer's role can arise from the impartial justifications for that role,
namely the adversary-system excuse: 'competition among partisan advo-
cates concerned primarily for their clients produces, on balance, the
best justice for all.'27 He argues that they cannot. The adversary-system
excuse provides an impartial justification for action, but that impartial jus-
tification does not provide any first-personal reason for the lawyer to
change her assessment that she has lied and cheated. Further,
Markovits argues that, given humans' bounded rationality and inertia in
decision making, first-personal commitments cannot come from impar-
tial justifications alone but must be instantiated in an idiosyncratic,
partial personal commitment.28
As a consequence, lawyers must find some way to re-describe their role
acts as consistent with the obligations of ordinary morality. What might
otherwise be described as lying and cheating can be re-described as effa-
cement and/or the exercise of negative capability. The lawyer can be to
his client what Keats's poet is to the subject matter of a poem: both
poet and lawyer render the inarticulate articulate.29 The lawyer is not
merely a mouthpiece,'0 but the self-effacing lawyer fundamentally
commits herself to 'fidelity in translation,' empathy, and a non-judgemen-
tal approach to the client's claim.31
This re-description is theoretically possible, Markovits suggests,
because lawyer effacement in advocacy contributes to political legitimacy
by increasing participants' acceptance of official resolution of their
claims.32 Because her role acts are part of a legitimate process, a lawyer

24 Ibid.
25 Ibid, at 77.
26 Ibid, at 109.
27 Ibid, at 103-4.
28 Ibid, at 149.
29 Ibid, at 93.
30 Ibid, at 95.
31 Ibid, at 197.
32 Ibid, at 188.

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 989

can re-describe lying and cheating as effacement and achieve a well-lived

life.

For role re-description to work, however, requires that lawyers practise

within a community that supports re-description. Markovits argues that
communities that facilitate role re-description are, of necessity, insular
and that diversity has destroyed the possibility of such a community for
lawyers. In the absence of an insular community, re-describing lying
and cheating as effacement is impossible; lawyers cannot escape their
fate as 'tragic villains.'"
Dare takes a quite different approach - and draws more optimistic
conclusions. M Adopting a more typical rhetorical structure, Dare argues
that the standard conception of the lawyer's role can be justified as
part of an institution that is legitimate when assessed against the stan-
dards of ordinary morality. Drawing from Rawls, Dare suggests that 'insti-
tutions may be justified by appeal to ordinary or general morality, but that
the conduct of those within those institutions is to be governed not by the
original moral considerations but by the rules of the institution. 'sr>
Ordinary morality is relevant for assessing an institutional actor's
conduct; however, the assessment occurs at the institutional level, not
that of the individual.

For lawyers, therefore, the institutions of law and the particular rules of
standard-conception lawyering must be justified against the standards of
ordinary morality. Dare argues that they can be. A system of laws exists
as a solution to the problem of pluralism; citizens in a society will have
deep conflicts about what constitutes the right way to live, and peaceful
co-existence requires rules that reflect the general will about how those
conflicts should be resolved. m Those rules are what we call 'law,' and,
within legal rules, citizens are free to act in furtherance of their own con-
ceptions of the good - the pluralist compromise has that freedom at its
heart. Dare's rationale is positivist: law and morality occupy distinctive
spheres, and law has a distinct claim to legitimacy.37 Dare does not
embrace radical individualism but simply argues that, given the
problem of pluralism, in instances where we cannot achieve the consen-
sus of enacted law, issues must necessarily be left to individual conscience
and choice and are certainly not to be determined by lawyers as against
the community as a whole.38 The role of lawyers is, rather, to facilitate
the exercise of that individual conscience and choice, and when

33 Ibid, at 243.

34 Dare, supra note 3.

35 Ibid, at 43.
36 Ibid, at 57.
37 Ibid, at 61.
38 Ibid, at 72.

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990 UNIVERSITY OF TORONTO LAW JOURNAL

lawyers do so, they perform an important social function, one justifiable

on moral grounds.
This is not, Dare emphasizes, to suggest that playing this role is morally
uncomplicated; in order to maintain integrity, a lawyer acting in role must
be critically reflective and willing to act on those reflections.39 The lawyer
must act with mere zeal rather than hyper-zeal; she must seek that to
which her client is legally entitled and nothing more.40 The lawyer
should also attempt, in roles other than her role as client advocate
(such as law reformer and well-informed citizen) to ensure the closest
relation between the demands of ordinary morality and those of legality.41
Dare and Markovits thus approach the questions of philosophical legal
ethics in distinct ways, both methodologically and substantively. The dis-
cussion that follows uses these distinctions to elaborate the positions set
out earlier with respect to the value of considering legal ethics as legal
doctrine, the distinction between the legal and ethical implications of
the analysis, and the under-appreciation of the social and regulatory con-
sequences of the philosophical legal-ethics project.

Ill Legal ethics as legal doctrine: Reflections on the virtues of formalism

In his book, Markovits embraces an ersatz formalism. Although eschew-

ing the 'formalist conception of law as hermetically sealed off from
morals or politics,'42 he seeks to retain some aspects of formalist
method by excavating what is 'immanent'43 in the law governing
lawyers. Markovits does not explain or adopt a particular methodology
for his excavation of loyalty, respect for client ends, and legal assertive-
ness. The formalist method is, however, explained by Ernest Weinrib in
his seminal article, 'Legal Formalism: On the Immanent Rationality of
Law.'44 Weinrib argues that the 'form' of the law is 'the ensemble of
characteristics that constitute the matter in question as a unity identical
to that of other matters of the same kind and distinguishable from
matters of a different kind.'45 This requires identifying the law's

39 Ibid, at 143.
40 Ibid, at 74.
41 Ibid, at 151-2. For a related position see Wendel, Lawyers, supra note lb.
42 Ibid, at 17, note marked by asterisk.
43 Markovits, supra note 16 at 19.
44 Ernest Weinrib, 'Legal Formalism: On the Immanent Rationality of Law.' (1988) 97
Yale LJ. 949 [Weinrib].
45 Ibid, at 958. Weinrib identifies the three aspects of a law s form as character, unity, and
genericity. I have focused here on character because my argument is, in essence, that
Markovits's analysis errs when it fails to identify one of the central characteristics of the
law governing lawyers. Weinrib defines 'unity' in this way: 'the thing is a single entity
compromised of the set of characteristics that defines it, and it has the unity of an

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 IF PHILOSOPHICAL LEGAI. ETHICS IS THE ANSWER 991

'characteristics,' those things essential for understanding the nature of

the legal doctrine which, if ignored, will render an explanation of the
doctrine 'contrived or artificial or somehow amiss'4<i and without which
the law could not be understood as a coherent whole. The removal of

one characteristic 'undermine [s] the intelligibility of all the other

In applying formalism to the law governing lawyers, one must thus
ify its salient features, those things essential for understanding it
doctrine which make it a coherent whole and without which it would
cease to be itself.

When considered against this articulation of formalist methodology,

Markovits's analysis appears justified with respect to the features of the
law governing lawyers he identifies: clear loyalty, client determination of
ends, and legal assertiveness could not be removed from the law govern-
ing lawyers without rendering the discussion 'somehow amiss.' The
problem, however, arises from the central characteristic Markovits does
not identify or acknowledge. Markovits identifies 'qualifications' on law-
yerly 'lying' and 'cheating,' but only for the purpose of arguing that
those limitations on acts that can be described as lying and cheating do
not eliminate lying and cheating. In doing so, however, he fails to recog-
nize that the features of the law governing lawyers that he describes as
qualifications are not simply qualifications on other things; they are
additional and independent legal obligations with which the lawyer
must comply. These obligations include the overarching duty to act as
an officer of the court, the duty to provide the court with relevant
adverse legal authority, the duty to ensure the court is not misled, the pro-
hibition on assisting a client to act unlawfully, and the power of lawyers to
determine the means through which a client's ends are pursued. These
doctrines must somehow be accounted for in a description of the form
of the law governing lawyers. When they are, I would argue that the
form of the law governing lawyers has three 'characteristics' in a
Weinribian sense, the first two of which align with the characteristics
identified by Markovits, but the last of which he misses entirely:

(1) client determination of ends (neutrality and moral non-

accountability)
(2) lawyer advocacy for, or representation of, client ends (partisanship)

articulated whole that is not reducible to - is therefore greater than - the sum of its
parts'; ibid, at 960. He defines 'genericity' in this way: 'form refers not to the thing's
fully individuated particularity, but to the general class under which it falls. The set
of properties that makes something a table, for instance, is found in all tables and
constitutes the genericity of what is to be a table'; ibid, at 960.
46 Ibid, at 967.
47 Ibid, at 970.

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992 UNIVERSITY OF TORONTO LAW JOURNAL

(3) the constraint of legality, including maintaining the process of the

adversarial system48

These three characteristics together create the coherence of the law gov-
erning lawyers; any positive articulation of the law. governing lawyers or
application of that law to a particular case is incoherent if it fails to
account for them. To put it in Dworkinian terms, it will have failed to
achieve an appropriate degree of 'fit.'49 A decision or rule of action
that embraced hyper-zeal, for example, would not fit; it would eliminate
from consideration the essential feature of the constraint of legality.
Although not derived from bottom-up formalism, Dare's understand-
ing of the institutional role of the lawyer - his modified standard con-
ception of neutrality, partisanship, moral non-accountability, and mere-
zeal - accords with these characteristics. That this is the case arguably
strengthens Dare's position, for Markovits's embrace of formalist method-
ology is neither foolish nor misguided, despite the issues with its
execution. One way to think about formalism is as the relatively modest
proposition that once the form of law is identified, the characteristics
that make up that form are presumptively rational. To adopt this prop-
osition is not to embrace coherence as the overriding value in assessing
a system of law or to take a position on varying formalist approaches,50
but it is to assert that, when one wants to reject concepts that render a
system of laws coherent or to argue for specific doctrines that are incon-
sistent with those concepts, then one has a case to meet from that fact
alone. To do otherwise is to suggest that a characteristic aspect of a
legal doctrine that recognizably exists across legal systems and without
which that area of law would cease to be recognizable as what it is, is
nonetheless no more than a bizarre coincidence, of no normative force
or significance.
An important task of philosophical legal ethics, as established by this
loosely formalist analysis, is to articulate how rules fit within the doctrinal
form created by neutrality, partisanship, and the constraint of legality.

48 'Legality' does not mean that lawyers have an obligation to further the legal aims of the
state. It simply means that lawyers are bound not to violate laws, or to ignore them, or to
fail to engage in good-faith interpretation of what they mean. The meaning of 'legality'
is, of course, contestable; however, some concept of legality nonetheless inheres in the
law governing lawyers. Further, its contestability can be overstated; see W. Bradley
Wendel, 'Professionalism as Interpretation' (2005) 99 N.WU.L.Rev. 1169 [Wendel,
'Professionalism'].
49 Ronald Dworkin, 'Hard Cases' (1975) 88 Harv. L. Rev. 1057 at 1094 [Dworkin].
50 I am referring to both Dworkin, supra note 49, and Weinrib, supra note 44, but as
Hamish Stewart rightly pointed out in his comments on this article, Dworkin
arguably views law as incorporating political morality, while Weinrib views law as
simply itself. My formalism (which is as ersatz as Markovits's) makes only the modest
point that, in analysing the law, the law itself matters and warrants respect.

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 993

Or, if arguing between competing rules that arguably 'fit' within existing
doctrine, then to provide, again adopting Dworkinian terms, a 'justifica-
tion' for which rule is appropriate; that is, to offer arguments as to why a
different rule is justified given norms informing the law governing
lawyers.51
Dare's articulation of the norms with which lawyers must comply works
on the basis of fit for the reasons just articulated. It also works on the basis
of justification; the role of lawyers in a democratic resolution of the
problem of pluralism explains why we govern lawyers in the way that we
do and justifies rules requiring neutrality, partisanship, and legality/
mere-zeal.52

By contrast, theorists like Luban and Postema,™ who would have

lawyers abandon partisanship and neutrality in circumstances other
than those required by the constraint of legality, have to provide some
explanation as to why the adoption of such rules fits with existing doc-
trine and, even if it does, why adoption of such rules in preference to
those that currently exist is justified. Or, if not doing so, to explain why
the fact that legal ethics manifestly exists as an area of legal doctrine
does not affect their analysis of it in non-doctrinal terms. This is some-
thing that I would argue neither Luban nor Postema have done especially
well.54 The arguments that they offer for the primacy of ordinary morality
in assessing what lawyers do amount, in essence, to an assertion of the
importance of complying with moral claims even where not instantiated
in the law (or even if contradicted by law). But when the law governing
lawyers is understood as a legal form and as subject to the requirements
of fit and justification, arguments from ordinary morality need something
more - some explanation for how they work within that jurisprudential
structure - in order to operate effectively (to be 'principle' not
'policy'55). The arguments that will satisfy the requirements of justification
are institutional and legal, arguments such as those provided by Dare,
Fried, and other defenders of the standard conception, and in a more criti-
cal vein by Simon.™ The insight of Markovits's formalism is to indicate an
explanatory burden that philosophical legal ethicists have not always met.
The importance of this point should not be overstated. As developed
in the following section, inquiries into legal ethics are not purely about
law but also incorporate the question posed by Markovits at the outset

51 Dworkin, supra note 49 at 1084.

52 Dare, supra note 3; although, of course, Dare is a positivist.
53 Postema, supra note 9; Luban, 'Lysistratian,' supra note 15; and all texts by Luban,
supra note 10.
54 And that I don't think Wasserstrom, supra note 2, really does at all.
55 Dworkin, supra note 49.
56 See Fried, supra note 1; Simon, 'Ideology,' supra note 6; and all texts by Simon, supra
note 1 1 .

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994 UNIVERSITY OF TORONTO LAW JOURNAL

of his book: Is a life lived consistently with the professional ethic of

lawyers a life well lived? In answering that question, the inquiries of
Wasserstrom57 and his successors open important avenues for inquiry.
However, with that qualification, I think the basic observation that the
law governing lawyers needs to be taken seriously as an area of legal doc-
trine, and that claims can be made against theories that fail to do so, is a
significant one. If legal ethics can be understood as relevant to the quality
of a lawyer's ethical life, it cannot only be understood in that way; its
coherence and norms as a form of law also count and also require
consideration.

rv The first-personal problem

Ironically, despite his significant insight that the law governing lawyers has
a legal form meriting consideration, Markovits does not engage with it in
that way. His point is rather that the form of the law governing lawyers
imposes obligations on the lawyer that complicate the ability of the
lawyer to live a well-lived life.58 In this section, I will argue against the
first-personal problem as Markovits identifies it,59 but for the existence
of a first-personal problem for lawyers. My point here is to justify identi-
fication and analysis of the consequences of legal practice for the
ability of the individual lawyer to achieve a life well lived but also to
note the limitations of that analysis. The practice of law does create a
first-personal problem for lawyers, but it is one that is neither created
by an immorality inherent in legal practice nor eliminated by demon-
stration of the moral justification for legal practice. The challenge to a
lawyer's ability to lead a well-lived life exists independently of the morality
(or immorality) of the lawyer's role and should not be what motivates our
inquiry into the morality of the lawyer's role nor affect the conclusions
that follow from that inquiry.
There are a number of problems with Markovits's identification of the
first-personal problem for lawyers.™ The most important of these relates
to Markovits's dependence on his assertion that lawyers lie and cheat

57 Wasserstrom, supra note 2.

58 Which may, of course, explain why he does not fully identify the characteristics of the
law governing lawyers.
59 Markovits, supra note 16 at 109.
60 For example, Markovits, supra note 16, asserts the morality of the lawyer's role against
the adversary-system excuse; yet no serious defender of the lawyer's role, not even
Markovits himself when he turns to consider the morality of lawyer acts within role,
relies on that excuse to justify the morality of what lawyers do. In addition, Markovits
sees the justification provided by the adversary-system excuse as external to the
lawyer - as the equivalent of an order from a dictator. The proper justification -
from the point of view of democratic pluralism - does not have to function in this

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 995

for his conclusion that lawyers cannot lead a well-lived life. When
Markovits labels what lawyers do as lying and cheating, he asserts the
moral conclusion; namely, that the moral character of those acts comes
from the viewpoint of ordinary morality and that the acts are, therefore,
bad (even if excused). But the moral conclusion is what is at issue, and as
Dare demonstrates, the justification for the lawyer's role as advocate, and
the Rawlsian point about the application of morality to institutional roles
and rules, simply makes the application of ordinary morality to the
lawyer's acts in that way inapposite.'1 Ordinary morality applies, but not
in that way, and when ordinary morality applies properly - to the
lawyer's institutional role in a democratic system of laws - its conclusion
is that what lawyers do is good, not bad. And for that reason, there is
nothing to excuse, and the lawyer can feel as personally committed to
advocacy as she is otherwise to impartial moral principles such as
honesty and fair play.
If this analysis is correct, the first-personal problem as Markovits ident-
ifies it goes away. The analysis does not, however, eliminate the possibility
that being a lawyer may, nonetheless, impair the ability of that lawyer to
achieve a well-lived life."2 As Bernard Williams notes,63 the assessment of
whether one has achieved a life well lived does not terminate with the

conclusion that one lived one's life in accordance with the requiremen
of impartial morality. Williams makes this point compellingly in respo
to the hypothetical question of whether a man forced to choose betw
saving his wife or saving a stranger can rely on impartial grounds fo
choosing his wife. In response, Williams argues that a man who even co
siders the question in these terms has had 'one thought too many
While impartial morality may make a claim on our actions, it is not t
only claim, and other projects of importance to us - in this instan
love for our family - can properly motivate our actions and may be es
tial if we are to achieve a well-lived life. As Williams puts it,

[T]his construction provides the agent with one thought too many: it might h
been hoped by some (for instance, by his wife) that his motivating thought, f
spelled out, would be the thought that it was his wife, not that it was his wife
that in situations of this kind it is permissible to save one's wife.65

way; for a lawyer is citizen as well as lawyer, and the goals of the democratic state wit
which she resides are hers; they are not imposed upon her.
61 Dare, supra note 3.
62 Brad Wendel was very helpful to my formulation of this point, in particular with respect
to Williams.

63 Williams, supra 17.

64 Ibid, at 18.
65 Ibid, at 18.

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996 UNIVERSITY OF TORONTO LAW JOURNAL

In saying this, Williams is not suggesting that the dictates of impartial

morality have no relevance to our assessment of the ethical quality of our
lives but simply that such dictates cannot fully answer the case for a
person trying to determine what constitutes a well-lived life - an
ethical life. Applied to lawyers, even if a lawyer feels deeply morally com-
mitted to the lawyer's role, she will need other things to ensure an ethical
life. As Dare puts it, she will need to pay attention to the roles she plays
outside her life in law.™ For Dare this means looking at how a lawyer in
those other roles can directly address the disjunction that potentially
exits between law and morality in individual cases. But it can equally
(and as Williams shows, importantly) involve paying attention to how
those other roles contribute to leading a well-lived life. Lawyers need to
have a balance between work and home, to feel like their lives have
meaning, to feel valued for what they do, and to have interests and pas-
sions outside of the law.

The problem of modern legal practice, as has been well documented,'7

is that lawyers have struggled to achieve these other things. Legal practice
too often revolves around its own economic imperatives - real or per-
ceived - with the result that lawyers work on cases from which they
draw little meaning in substance, for hours which are inconsistent with
the achievement of anything else, and in work contexts where they feel
driven to do more rather than feeling appreciated for what they have
done. Lawyers are notably unhappy.68 But - and this is an insight that
both draws from Markovits and contradicts him - if lawyers' lives are
tragic, it is not because what they do is wrong; it is because being right
is not enough.
In making this argument, therefore, I am identifying a different
problem than Markovits, and indicating solutions closer to Dare's. I am
also, though, highlighting the methodological point that Markovits's
book makes clear. To understand whether a good lawyer can be a good
person ignores something significant if based only on assessment of the
impartial moral justification for what lawyers do. If I am a lawyer, I am
a lawyer, and how I experience law as a practice, and how I integrate
that practice into my life, will say as much about whether I can incorpor-
ate my professional ethic into a life well lived as will impartial norms that
underlie that ethic. To the extent legal ethics concerns itself with this
question of whether a professional ethic can be incorporated into a
well-lived life, it needs to be attentive not simply to the impartial moral

66 Dare, supra note 3 at 151-2.

67 Among many other articles, see Patrick Schütz, 'On Being a Happy, Healthy and
Ethical Member of an Unhappy, Unhealthy and Unethical Profession' (1999) 52
Vand. L. Rev. 871.
68 Ibid.

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 997

claims that justify legal practice but to the reality of it, to the extent to
which the experience of lawyering, as well as its moral claims, counters
the ability to achieve a well-lived life.
This works both ways, however. The inhibition of a well-lived life as a
result of the circumstances of lawyering does not necessarily demonstrate
that being a lawyer is unjustified in impartial moral terms or warrant an
adjustment to the norms underlying the legal system. The failure to dis-
tinguish between these analytical categories is notable in some philoso-
phical legal-ethics scholarship. For example, William Simon begins his
seminal work The Practice of Justice by conflating the disappointment
that arises from the 'bureaucratic' and 'commercial' nature of legal prac-
tice with the disappointment of prospective lawyers' moral aspirations.69
Moral aspirations may be disappointed, and legal practice may be bureau-
cratic and commercial, but those things have, as Williams points out,
different significance and antecedents, and need to be both related
and distinguished with some care.70

V The well-regulated profession

This article began by reiterating Fried's question, 'Can a good lawyer be a

good person?',71 and setting out the essentials of his answer: since what
lawyers do can be justified as a necessary condition of personal autonomy
in a democratic system of laws, a lawyer can be a good person. As argued
in the previous section, however, this answer circumvents the significant
point that being able to incorporate a life in law into a well-lived life
requires more than being able to claim moral justification for one's pro-
fessional role. Fried's true accomplishment, therefore, was not to demon-
strate that a good lawyer can be a good person but rather to articulate the
moral foundations of the lawyer's role from the perspective of a demo-
cratic society. He explains why a democratic society would want and
value the role that lawyer's play. In this section, I will argue that any mean-
ingful consideration of the moral foundations of the lawyer's role must do
as Fried did and take the societal perspective. But it should do so expli-
citly because framing the question as societal, rather than personal,
points to the crucial but under-explored implications of the work of phi-
losophical legal ethics: how do we regulate lawyer conduct? who should
regulate lawyers, through what process and in what way? Moreover, the
societal perspective offers the only avenue for philosophical legal ethics
to engage with those questions meaningfully.

69 Simon, Practice, supra note 11 at 1.

70 See supra notes 62-5 supra and accompanying text.
71 Fried, supra note 1.

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998 UNIVERSITY OF TORONTO LAW JOURNAL

For example, an important issue in the law governing lawyers is the

extent to which exceptions should be made to the lawyer's obligation
to protect her client's confidences. Limited exceptions are carved out,
but controversy always arises when an exception is proposed72 or when
the confidentiality rule is observed because no exception existsbut the
costs of that observing are high and identifiable.73 Philosophical legal
ethics does not disavow engagement with these controversies.74 But I
would suggest that, to the extent philosophical legal ethics is able to
engage with such questions, it does not do so - it, in fact, cannot do
so - from the point of view of ensuring that a good lawyer is a good
person. Normative evaluation of legal rules governing lawyers conduct
may consider ordinary morality, but it does so within the context of the
society within which that normative conflict arises: what do that society's
constitution, broader legal system, democratic values and moral evalu-
ations (as instantiated in its legal system75) say about how those conflicts
should be resolved? As Dare points out, morality operates, but at the insti-
tutional level, not at the personal level.™ To suggest that the point of view
of the individual lawyer's moral conscience is paramount is to make the
lawyer an especial object of social concern, greater than that of others,
and doing so seems impossible to justify on any impartial basis.
Philosophical legal ethicists do not generally suggest that the moral life
of the lawyer is determinative in resolving difficult doctrinal problems.
But to focus exclusively on the question of whether the lawyer's life is
well lived, as Markovits does, is to raise this possibility indirectly.
Markovits argues that the first-personal problem caused by lawyerly
lying and cheating could potentially be resolved through re-describing
those acts as 'effacement' or 'negative capability.'77 Markovits also
argues that negative capability provides organizing principles for the doc-
trinal structure of the law governing lawyers, explaining confidentiality
and its exceptions as well as the law on conflicts of interest.78 Implicit -
and arguably explicit - in Markovits's articulation of effacement is a

72 See, e.g., the requirements in Sarbanes-Oxley for 'upward whistle blowing' and other
disclosure of proposed corporate fraud; Sarbanes-Oxley Act of 2002, Pub. L. No. 107-
204, 116Stat 745.
73 See, e.g., R v. Murray (2000), 144 C.C.C. (3d) 289; '26-Year Secret Kept Innocent Man
in Prison: Lawyers Tell 60 Minutes They Were Legally Bound from Revealing Secret'
(25 May 2008), online: CBC News <http://www.cbsnews.com/stories/2008/03/06/
60minutes/main3914719.shtml>; Spaulding v. Zimmerman 263 Minn. 346 (1962);
Roger C. Cram ton & Lori P. Knowles, 'Professional Secrecy and Its Exceptions:
Spaulding v. Zimmerman revisited' (1998) 83 Minn. L.Rev. 63.
74 See, e.g., Luban, Lawyers, supra note 10 at 206-34.
75 Inclusively or exclusively.
76 Dare, supra note 3 at 43.
77 Markovits, supra note 16 at 90-8.
78 Ibid, at 95-7.

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 IF PHILOSOPHICAL LEGAI. ETHICS IS THE ANSWER 999

claim that, as a society, we would welcome lawyers' re-describing the acts

required by the law governing lawyers in this way or, at minimum, that we
would not object to lawyers doing so. But this is a position in need of an
argument. Even if effacement would work for the lawyer's quest to live a
well-lived life, it needs to be demonstrated that, as a constitutional democ-
racy, we would embrace lawyerly effacement, given our moral, consti-
tutional, and legal values. And whether or not that is the case requires
both an answer and some normative methodology for thinking about
what that answer might be.
Dare explains the relationship between the role of the legal system in a
democratic society and the role of lawyers in a legal system. The principle
of neutrality, he explains, exists because where a society is deeply com-
mitted to the idea that individuals are free to pursue their own con-
ception of the good within the bounds of legality, it follows that 'it is
not up to lawyers to determine what we will do as a community, what
rights we will allocate and to whom.'7" The principle of partisanship, if
identified as limited to mere-zeal, follows similarly:

Lawyers who fail to exercise mere-zeal, who take it upon themselves not to pursue
legal entitlements available to their clients when their clients wish them to do so,
privilege whatever moral view they are following in preference to that of their
client and undercut the procedures which allow the advocates of a plurality of
views to live together in communities.80

Dare cautions, however, that hyper-zeal does not follow from the justi-
fication for the lawyer's role. Some requirement of legality must constrain
what lawyers do, otherwise the legal system's ability to act as a solution to
pluralism breaks down; if the procedures of the law are used to extract for
the client that which the client wants, regardless of the legality of the
client's wants, then the client becomes like the un-neutral lawyer, impos-
ing her conception of the good on the interests of the broader commu-
nity instead of respecting the community's pluralist compromise.
Dare's analysis demonstrates how philosophical understandings of the
lawyer's role can inform how a constitutional democracy attempts to
orient lawyer's specific conduct, the kinds of behaviours to be encour-
aged or discouraged, and the benefits and dangers inherent in different
regulatory models. Dare's model suggests, for example, that a good norm
to impose on lawyers would be to constrain conduct not oriented towards
legality, such as the writing of legally bogus opinions intended to provide
a shield for a client's unlawful conduct.81 Further, it highlights that an

79 Dare, supra note 3 at 72.

80 Ibid, at 75.

81 This issue is much discussed currently because of John Yoo's role in providing a 'legal'
justification for torture; see, e.g., Wendel, 'Professionalism,' supra note 48.

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1000 UNIVERSITY OF TORONTO LAW JOURNAL

issue of that sort is not merely incidental but may be one of the most
important as well as one of those most difficult to resolve. This is the
case not because the soul of the lawyer is at issue - notably Markovits
does not even discuss the lawyer's advisory role - but because it is
central to the role a lawyer plays in a democratic system of laws.
This is not to suggest that philosophical legal ethics should abandon
its concern with the ethical lives of individual lawyers. But it is to
suggest that analysis of the requirements imposed on lawyers must not
only be viewed from that perspective and that, in general, the societal per-
spective is what counts most. Society routinely resolves difficult moral pro-
blems and does so in a way that may impose costs on those required to
implement those solutions. Soldiers go to war. Immigration officials
deny refugee status to people who do not meet the legal requirements
yet may suffer if returned to their home country. The individuals who
implement these rules may find it harder to live a well-lived life
because they do so. But, in our analysis of the merits of those rules, we
do not focus significantly on questions such as, 'Will an immigration
officer lead a well-lived life?'82 To no greater extent should we focus, in
analysing the rules and obligations we impose on lawyers, on the question
of whether the lawyer who does these things leads a good life. Whether a
lawyer does so merits inquiry, but not in that sense, and not in that way.
The possibility of a well-lived life is a separate question and cannot be
simply collapsed indistinguishably into the question of what is central
to the role a lawyer plays in a democratic system of laws.

VI Conclusion

What is the 'basic task'83 of legal ethics? Philosophical legal ethics has tra-
ditionally identified the answer to this question as lying in the relation-
ship between the lawyer's role and the ethical life of the lawyer who
occupies it. It has attempted to determine whether the 'actions, commit-
ments and traits of character' of the lawyer can be 'integrated into a well-
lived life.'84 In this article, I have argued that, even as the question has
been framed in this way, the methodology and task of philosophical
legal ethics has never been that straightforward; nor has it been fully
explicated. Legal ethics inquiries cannot, as they often have, treat legal

82 Although we may account for it see, e.g., 'Saskatchewan to Ask Courts for Ruling on
Same-Sex Marriage: Legislation Would Allow Commissioners with Contrary Religious
Beliefs to Opt out of Performing Same-Sex Ceremonies' The Globe and Mail (6 July
2009), online: Globe and Mail <http://www.theglobeandmail.com/news/politics/
saskatchewan-to-ask-courts-for-ruling-on-same-sex-marriage/article 1 205443 > .
83 Markovits, supra note 16 at 1.
84 Ibid.

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 IF PHILOSOPHICAL LEGAL ETHICS IS THE ANSWER 1001

ethics as a matter in itself, apart from law, or as a separate categor-

y,'ethics, 'within a legal system with which it interacts. Legal ethics is
itself legal doctrine, has the form of legal doctrine, and must be
engaged with in that way. Further, while legal ethics properly pays atten-
tion to the ethical life of the lawyer, the inquiry into the morality of law-
yering and into the ethical life of the lawyer are less closely related than
has generally been asserted or assumed. Demonstrating the moral justifi-
cation for lawyering is insufficient to demonstrate the ethical quality of
the lawyer's life, but, at the same time, demonstrating the ethical pro-
blems with the lawyer's life does not necessarily have any relevance to
the moral justification for what lawyers do, or any implications for what
lawyers do or should be required to do.
Finally, while the ethical experience of the individual lawyer cannot be
ignored, the implications that should follow from the identification of the
moral justification for lawyering are largely societal, not personal. In a
1984 article engaging with the analysis of Wasserstrom, Luban,
Postema, and Simon, Ted Schneyer suggests that the fundamental indict-
ment of lawyering by those critics is that following the obligations of their
profession requires lawyers to 'routinely do things for clients that harm
third parties and would therefore be immoral, even in the lawyers'
eyes, if done for themselves or for non-clients.'85 Schneyer responds
that these philosophers make fundamental mistakes about the nature
of the lawyer's professional ethics, in law and in practice. Dare would
agree. But whether or not Schneyer and Dare are correct is less important
than the recognition implicit in Schneyer's analysis that the question that
needs to be addressed is not whether lawyers wrongfully injure third
parties in pursuit of their professional obligations but rather what, from
a democratic perspective, those obligations ought to be. The obligations
of lawyers were not brought by Moses from the mountain on tablets of
stone. They can be changed, made to reflect the constitutional norms
and democratic will of the society within which lawyers practice.
Whether they should be, what constitutes a good law of lawyering and
what a pernicious one, warrants our fullest philosophical attention.

85 Schneyer, supra note 13 at 1532.

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