Methodology and Perspective in the Theory of Lawyers' Ethics: A Response to Professors Woolley and Markovits

Abstract

Professor Woolley's principal article identifies a fault line in the theory of legal ethics, between those who ask what a lawyer should do in a situation, and those, like Professor Markovits, who are concerned with how a lawyer should be. The firstpersonal turn in legal ethics emphasizes the lawyer's integrity or character, rather than impartial considerations such as the client's interests or legal rights. Professor Markovits, for example, foregrounds the affective process of engagement by clients in adjudication, and from that derives a conception of legal ethics that emphasizes the lawyer's passivity, as a negatively capable conduit facilitating client engagement. Professor Woolley acknowledges that there is a first-personal problem in legal ethics, but insists on separating it from the questions pertaining to the best way to regulate the legal profession. This comment accepts Professor Woolley's distinction between theoretical questions pertaining to regulation and those pertaining to what constitutes a life well lived. It goes beyond her article, however, in denying that considerations of integrity, personal identity, and a life well lived do not bear on impartial questions such as what duties lawyers have to their clients and others.