Ethics

I am reading for review Daniel Markovits' A Modern Legal Ethics: Adversary Advocacy in a Democratic Age.  The book raises almost innumerable topics on which to blog; for starters I am intrigued by Markovits attempt to construct the immanent rationality of the law governing lawyers.  Markovits makes it clear (in his note at page 17) that he is not attempting to "revive the formalist conception of law as hermetically sealed off from morals or politics".  Nonetheless, his starting point for engagement is attempting to excavate the core principles of the law governing lawyers, to identify the "legal, ethical, and political values and forms of life [which] are immanent in this professional regime".  As I understand the project of establishing internal coherence of legal systems, it requires the identification of the "salient" features of the law, those without which the legal system would cease to be recognizable as itself (I'm drawing on Weinrib here).  Markovits identifies those features in the law governing lawyers (in the context of adversary advocacy) as loyalty, client control and legal assertiveness.  Further, he argues that inherent to the law governing lawyers is the requirement that lawyers "lie" and "cheat".  He defines these terms in specific ways, namely lying as  ?asserting a proposition that one privately (and correctly) disbelieves? and cheating as ?to exploit others by promoting claims or causes that one privately (and correctly) thinks undeserving?.  Markovits notes the various qualifications placed on lying and cheating by the law governing lawyers, but argues that these qualifications are at the edges, and do not eliminate the necessity of either.

Amongst my numerous and various disagreements with Markovits, is my basic disagreement with his identification of the salient features of the law governing lawyers.  While I agree that the features he identifies are features, and that the law governing lawyers requires lying and cheating as he defines those terms, I think the salient feature of the law governing lawyers is in its attempt to create balance, to recognize and give meaning to the competing obligations of lawyers to the legal system and to their clients.  Where the balance is drawn is not the salient point; it is that the balance is drawn  that is salient, defining, the-thing-without-which, the law governing lawyers could not be recognizable as what it is.  An analogy from Weinrib's analysis of the "immanent rationality" of tort law is his point that tort law is not there merely to punish wrongdoers, because it does not always exact consequences from wrongdoing; it only does so when the wrongdoing itself has certain consequences.  From that he makes the analytical point that tort law serves corrective justice, that its correlative aspect between doer and sufferer is a notable "salient" feature of it as a system of law.  Similarly, here, it is not that lawyers have to be loyal, it is that they have to be loyal sometimes but not always, that requires explanation, which creates the organizing salience of the law governing lawyers, its immanent rationality. 

I post on this though primarily to say... what do others think?  What do others think are the salient features of the law governing lawyers, without which it would not be recognizably what it is?  I think it is a central question, one worth thinking about seriously.