Ethics

In the last chapter of his book Markovits argues that the moral worth lawyers obtain by recasting the vices of lying and cheating as the virtues of fidelity and effacement, requires that lawyers belong to a community strong enough to elide application of the principles of ordinary morality.  It is only through membership in a community of that sort that the necessary "role redescription" can occur.  Markovits suggests, however, that the necessary community for lawyers to do this no longer exists.  This is for three reasons: the heterogeneity of the bar, the shift of ethics from ?fraternal admonitions that announce the informal standards of right-thinking lawyers? to rules, and the increasing role of non-lawyers in deciding what lawyers are required to do.

In making this argument Markovits seems to me to fall within a certain tradition of writing on professionalism and legal ethics which suggests that something - community or something else - has been "lost" in the shift to a more diverse profession.  That once the profession is no longer made up of white, male, middle-class protestants there are things that can no longer happen, can no longer be shared.

I suppose that may be true in some senses - the lives of those lawyers may, outside of legal practice, have had more points of commonality than is the case today - but I don't see why it is true to the sense of community we have as lawyers.  That community, it seems to me, comes from what we do and the way we process and assess information in accordance with norms (Brad's idea of an interpretive community), not from how we live our lives outside of the law.

Thus, when I read about John Yoo's use of a medicare statute in an egregious example of bad legal reasoning, I feel a sense of embarrassment and shame, even though I'm not even American.  I don't feel that in relation to George Bush, or even in relation to the bad non-lawyer related acts of lawyers (Clinton, not the perjury part).  But I feel it in relation to Yoo because he is a lawyer violating the craft to which lawyers should adhere.  And I feel pride when I see lawyers in Pakistan protesting in the streets, and risking their personal safety, in an attempt to protect the rule of law.  Those lawyers are doing that which, in my fantasy world, my own life as a lawyer would consist of.  My sense of community with lawyers, with the project of lawyering, exists because I am a lawyer, not because I am a woman, a Canadian, straight, white, etc. etc.  And I wish we didn't have to assume that community requires non-diversity as a prerequisite.

Rant over.