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Copyright (c) 2003 Yale Journal of Law & the Humanities, Inc.
Yale Journal of Law & the Humanities

ARTICLE: Legal Ethics from the Lawyer's Point of View

Summer, 2003

15 Yale J.L. & Human. 209


Daniel Markovits*


(The Form of the Argument)
These pages present a philosophical argument about legal ethics. Although this general approach to legal ethics is a common one, the specific form of the argument that follows is unusual and warrants some comment. In particular, the argument does not attempt (at least not as its primary goal) to say whether the present regime of legal ethics - the law governing lawyers as it stands - is justified or wrongheaded, nor does it attempt to say what ethical principles should ideally govern the professional conduct of lawyers. Instead, the argument takes the present regime (or some recognizable variation of this regime) as given and employs philosophical analysis to explain the moral condition of lawyers who practice under this regime. My aim is to develop an account of what it is like - of what it is like not psychologically but ethically - to practice law under the present regime, with a special emphasis on the moral tensions that practicing lawyers face. In this sense, my argument proceeds not from the point of view of the philosopher (or policy-maker) who stands outside the system of legal ethics as it is, but instead develops the point of view of the lawyer practicing within this system. Hence my title.

In taking this approach, I am seeking to interpret the law rather than, as yet, to change it. This is nowadays itself something of an unusual ambition. Ever since the realist revolution exploded the formalist myth ...
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