Document Type

Article

Abstract

A lawyer confronts many features of the world that are given, inflexible, and must simply be dealt with; at the same time she has latitude for creativity, for the exercise of skill and judgment toward the realization of the client’s ends. Although in law school it may seem that the law that is open-textured, manipulable, and the wellspring of creative lawyering, in practice the facts do not come pre-packaged and accepted as true for the purposes of an appellate court’s review, but are highly contingent and the product of the interaction between a lawyer and witnesses, documents, and other sources of information. It is exactly in this respect, however, that the theory of legal ethics is relatively under-developed. In recent years, legal ethics scholarship has changed its emphasis from ordinary first-order morality to a consideration of issues in democratic theory and legal philosophy. Focusing on the legitimacy of norms established through democratic political processes has yielded a robust theory of ethics with respect to the content of law: Ethical lawyering requires understanding the content of legal rules not from the Holmesian bad man perspective of “what can I get away with,” but from the point of view of the law as it would be understood by an impartial member of an interpretive community.

The question to be considered in this paper is, if one believes that being an ethical lawyer has something to do with democratic legitimacy and the authority of law, what practical stance must a lawyer take with respect to facts? The answer to this question depends on the perspective one takes on the relationship between the role of lawyers as advocate and the contribution made by advocacy to legal legitimacy. Almost every scholar who has considered the problem of connecting ethical prescriptions for lawyers with considerations of political legitimacy, including Geoffrey Hazard and Dana Remus, Daniel Markovits, William Simon, and David Luban, has argued for a subjective perspective, so that the most important criterion for legitimacy is whether the legal system has taken into account the story the client wishes to tell. Using several case studies, I argue in this paper for the unpopular, unloved objective perspective, with the central criterion of legal legitimacy being what is the case, based on both law and facts – i.e. whether the client does or does not have a legal entitlement to do what is in her interests. Political legitimacy depends on adhering to ideals of truthfulness in politics. The alternative, subjective perspective on the relationship between legitimacy and advocacy, although emphasizing the extremely important value of human dignity, ultimately leads to a cynical, bullshitty (in Harry Frankfurt’s sense - see Harry Frankfurt, On Bullshit (2005) (distinguishing bullshit from lies on the attitude displayed by the speaker toward the facts – lying is an attempt to evade the truth, while bullshitting is indifferent to it)) style of advocacy that undermines its own claim to political legitimacy.

My argument is not that lawyers have a direct obligation to seek the truth. Our adversarial system of litigation presupposes that each party and her advocate will have their own perspective on the truth and be permitted to argue for it, and introduce evidence in support of it, at trial. The general theoretical orientation of the adversarial system toward partisan perspectives on the truth has, however, tended to make lawyers forget that they have some responsibility with respect to the truthfulness of litigated matters. Following Bernard Williams, I distinguish between truth with respect to some belief (“it is true that P,” where P would be something like “the defendant robbed the victim,” or “the plaintiff was standing right here when the accident occurred”) and truthfulness as an ideal that may apply to a process or institution of government. This emphasis on truth as a propositional matter has obscured the ethical analysis that should apply to practices, such as evidence gathering, the conduct of civil discovery, witness preparation, and the examination of witnesses at trial. The legitimacy of the civil justice system depends on its being a process of reason-giving, which in turn depends on the reasons having something to do with what actually is the case, as a matter of fact.

Date of Authorship for this Version

2-3-2015

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