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dc.contributor.authorTranter, Kieran
dc.contributor.authorBartlett, Francesca
dc.contributor.authorCorbin, Lillian
dc.contributor.authorMortensen, Reid
dc.contributor.authorRobertson, Mike
dc.date.accessioned2017-05-03T14:24:23Z
dc.date.available2017-05-03T14:24:23Z
dc.date.issued2010
dc.date.modified2011-05-09T06:49:19Z
dc.identifier.isbn9780415546539
dc.identifier.urihttp://hdl.handle.net/10072/34546
dc.description.abstractThe contributors to this book reaffirm legal ethics. In doing so, they enable us to take stock of current thinking about the conduct of lawyers. All of the contributors assert, in no uncertain terms, the ongoing importance of legal ethics both as a practical matter concerned with the conduct of lawyers and as an area of sustained and critical scholarly inquiry. Therefore, at least in the common law world, legal ethics is viewed as a two-sided enterprise. On one side are the ‘laws of lawyering’,1 the rules, regulations and disciplinary procedures that govern the practice of law in various jurisdictions. On the other side is the academic activity dedicated to understanding, probing and questioning the rules and institutions concerned with lawyers’ behaviour and to articulating a coherent moral grounding for the work of lawyers. Legal ethics, as with the ethics of any ancient profession, has a long history thatpredates modern conceptual distinctions between law and morality. However, once we as moderns assume the two distinct sides of legal ethics, critical points of its contemporary development can be identified. The law of lawyering itself has multiple beginnings. The legal profession has enjoyed and long cherished a professional freedom to self-regulate. Indeed, 2008 marked the centenary of the American Bar Association’s 1908 ‘Canons of Professional Ethics’.2 In addition, the common law courts have exercised authority to regulate entry (and exit) to the rolls of the legal profession. Further, as Fred Zacharias reminds us in Chapter 11, lawyers have always been subject to the rule of law, accountable to the general law of fiduciary duties, agency, contract and the like. The other side of legal ethics has had an even more sporadic development in the modern era, but the ‘primers’ on ethical conduct that began to emerge in the nineteenth century also remind us of recurring concerns in the profession about ‘what is just and right’.3 Nevertheless, it was the Watergate scandal in the 1970s that gave critical impetus to this side of legal ethics. Many commentators credit the modern development of the field of legalethics as a practical and intellectual reaction to Watergate.4 The early 1970s represented a time of questioning of institutional legitimacy, and the legal profession was being called increasingly to public account.5 In this context, thepartisan behaviour of the lawyers, and the legally trained, involved in the White House’s illegal surveillance of political opponents and its attempt to cover up the 1972 break-ins at the Watergate Complex in Washington DC represented an internal crisis for the legal profession and also an external crisis in public confidence in the legal profession. For the moral philosopher Richard Wasserstrom, writing in 1975, the conduct of lawyers involved in Watergate could be explained by ‘role differentiation’: the idea that, once a person assumes a given social role, it is both appropriate and right for them to ignore moral standards that should not be ignored outside that role.6 He regarded lawyering as an extreme example of role differentiation, to the point that – especially in litigation – the client’s objectives should be promoted, regardless of the moral or political outcome: ‘the lawyer as professional comes to inhabit a simplified universe which is strikingly amoral – which regards as morally irrelevant any number of factors which nonprofessional citizens might take to be important, if not decisive, in their everyday lives.’7 Wasserstrom identified the central moral foundation behind lawyering in the common law world, which remained under-appreciated until Watergate: lawyers assumed that they were engaged for their technical competence, and viewed questions of moral responsibility as largely outside their purview. Wasserstrom’s identification and critique of ‘role morality’ represented a catalystin the development of legal ethics as an area of law and a field of study. PostWatergate, the American Bar Association’s rules, which were restated in 1969, were again revised in 1983.8 These expanded rules provided a clearer articulation of the freedoms and constraints that comprise the role of the lawyer, and the reform process spread to the professional rules of conduct issued by the organized profession in other jurisdictions. For the professional societies, role morality remained the touchstone in consideration of good lawyering, but it was a touchstone that needed to be expressly stated, justified and increasingly refined. This is still the case. A factor that helped to ferment the articulation, justification, criticism andrefinement of the rules of professional conduct was the emergence of legal ethics as a dedicated intellectual endeavour. Again, role morality was a touchstone for the growth of scholarship in the field. Wasserstrom’s identification and critique of role morality challenged a generation of legal scholars to think more deeply about the morality and politics of the lawyer’s role. Some scholars, like Charles Fried, met Wasserstrom’s challenge directly and offered more sophisticated moral justifications for role morality.9 Others echoed Wasserstrom’s criticisms of role morality and suggested the need for alternative moral grounds for legal practice – at least in the hard cases where strong adherence to role morality would lead to morally repugnant outcomes. On this side of legal ethics, significant diversity became evident concerning the origins, legitimacy and acculturation of called-for alternative values. David Luban argued for common morality that lay within the wider community;10 Thomas Shaffer argued for the virtue implicit in human potential;11 Shaffer and Carrie Menkel-Meadow introduced ethics of care to the field;12 and in the 1990s Anthony Kronman developed a strong Aristotelian theory of virtue ethics for lawyers.13
dc.description.peerreviewedYes
dc.description.publicationstatusYes
dc.format.extent14964 bytes
dc.format.mimetypeapplication/pdf
dc.languageEnglish
dc.language.isoeng
dc.publisherRoutledge
dc.publisher.placeUnited Kingdom
dc.publisher.urihttps://www.taylorfrancis.com/books/e/9780203849354/chapters/10.4324/9780203849354-6
dc.relation.ispartofbooktitleReaffirming Legal Ethics: Taking Stock and New Ideas
dc.relation.ispartofchapter1
dc.relation.ispartofstudentpublicationN
dc.relation.ispartofpagefrom1
dc.relation.ispartofpageto11
dc.rights.retentionN
dc.subject.fieldofresearchLegal Practice, Lawyering and the Legal Profession
dc.subject.fieldofresearchcode180121
dc.titleIntroduction [Reaffirming Legal Ethics: taking stock and new ideas]
dc.typeBook chapter
dc.type.descriptionB1 - Chapters
dc.type.codeB - Book Chapters
gro.facultyArts, Education & Law Group, School of Law
gro.rights.copyright© 2010 Taylor & Francis. This is a Chapter Summary of a book chapter published by Routledge in Reaffirming Legal Ethics: Taking Stock and New Ideas on 2 July 2010, available online: https://doi.org/10.4324/9780203849354
gro.date.issued2010
gro.hasfulltextFull Text
gro.griffith.authorCorbin, Lillian C.
gro.griffith.authorTranter, Kieran M.


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