Values, which give us reasons for acting in certain ways, may be properties of both natural, pre-institutional states of affairs and relations among persons, as well as states of affairs and relations among persons that are constituted and regulated by social and political institutions. We can call these ordinary moral values and institutional values, respectively. The fundamental issue in legal ethics is often represented as a conflict between ordinary moral values and institutional values. However, another conflict which has not been well explored in the legal ethics literature is between agent-neutral institutional values and agent-relative reasons that arise from the lawyer's own ideals and commitments. The value of, for example, the rights of a criminal defendant or the impartial adjudication of disputes does not depend on perspective of the lawyer herself - these things would be genuine objects of ethical concern even if the lawyer was not committed to them. As a result there may be a kind of gap between an agent's own commitments and the values which inform the professional role within which she acts. This gap may lead to a sense of profound moral alienation, caused by the conflict between the impartially justified (or required) actions undertaken in a professional role and the things she values in her ordinary life, such as truth, avoiding humiliating others, and so on.
This paper examines a particular kind of agent-relative values - namely, those related to a person's integrity, in the sense of maintaining fidelity over time to one's own commitments and loyalties. Orienting legal ethics, to a greater or lesser extent, around the commitments and loyalties of individual lawyers may seem like a promising strategy to reduce the tension between ordinary and institutional values. In particularly I will look at Daniel Markovits' argument that the standard debate legal ethics has gotten everything backwards, by trying to evaluate the conduct of lawyers in terms of agent-neutral values. Instead of worrying only about impartial value, says Markovits, lawyers should be primarily concerned for their own integrity, and only secondarily oriented toward the agent-neutral reasons that are usually given by way of justification. In response, I argue here that personal integrity should be at best of secondary importance in legal ethics. If, as I believe is the case, legal ethics should be understood as part of a freestanding political morality, then the sorts of ordinary moral concerns that would ordinarily serve as the basis for organizing one's interests and ideals into a coherent life project would be out of place when one is thinking about one's professional life.
Date of Authorship for this Version
Legal ethics, Values, Integrity, agent-neutral, agent-relative, role morality
Wendel, W. Bradley, "Personal Integrity and the Conflict between Ordinary and Institutional Values" (2007). Cornell Law Faculty Publications. 97.