Document Type

Article

Publication Date

1993

Publication Information

7 Notre Dame J.L. Ethics & Pub. Pol'y 145 (1993)

Abstract

Modem American lawyers impose on one another regulatory rules that speak to the old argument but have not resolved it. One of these requires lawyers to advocate the interests of their clients with zeal; another forbids them from arguing that they believe what they say, or in the merit of what they are asking the government to do. The latter of these is a rule against vouching for clients. Rules that require zeal and forbid vouching seek to prevent both advertent deceit and an "unprofessional" limitation of advocacy to causes lawyers believe in. My claim is that these rules are as unsatisfactory as the two evils they attempt to prevent. My proposal is to appropriate, instead of these rules, or as a way to live with rules such as these, the understanding of friendship Aristotle developed in his Ethics and in the Magna Moralia.4 This paper is part of a broader argument for Aristotelian virtue ethics in American legal ethics. It is more specifically, and in reference to the moral judgments advocates make, an argument for consideration of the virtue of friendship (or friendliness), and against dependence on ethical analysis of the statements hypothetical advocates make or might make. I will attempt to describe, first, the situation of a modern American lawyer-advocate; then the history behind this situation, with attention to the fact that professional teaching on vouching has turned on the misuse of character, rather than on concern for truthfulness. Then I will attempt to survey appellate opinions from Canada and the United States, for indications on how we lawyers live with rules on zeal and vouching, and how we use them offensively. And, finally, I will offer the Aristotelian alternative and take a look at how it shows up in the anthropology of American lawyers.

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