It is a common trope that ‘litigation is war.’ As an adjunct of the general adversarial structure and legal process, litigation is cast as a hostile encounter in which each party through its lawyers is entitled and recommended to use whatever lawful means are at its disposal to achieve victory. Within this bellicose depiction, lawyers are represented as frontline combatants who do battle on behalf of their clients. Championing the causes of their clients, their skill is found in their grasp of the techniques and strategies needed in this most intimidating and rarified of institutional venues. In this professional undertaking, they are licensed and often required to engage in activity that might at best be frowned upon if done in their personal lives and at worst even be condemned as deeply unethical. Although criticism of lawyers is far from new, it seems particularly insistent and widespread today: the extant modes of justification for the model of the ‘ethical litigator’ have been the subject of enormous criticism from both inside and outside the legal profession. The time is now ripe for change.

OPENING SHOTS

As lawyering (and, therefore, litigation) has become big business, the substantial price of entrepreneurial success has been bought at the perceived cost of reduced social standing. Lawyers are not only portrayed as skilled at the dubious arts of manipulation and double dealing, but also castigated as moral hypocrites because they defend these practices in the brazen name of ‘professional ethics’. Along with used car dealers and telemarketers, lawyers are considered among the least trustworthy and least respected of all professionals. The keen force of considered judgment is that many lawyers have failed to grasp the full ramifications of the crucial distinction between operating as a business and functioning as a profession. Lawyers have acted in ways that either ignore the public aspect of their professional status or, more cleverly, interpreted that public dimension as being consonant with the business interests of the profession. This is an ethical failure of considerable magnitude. In such a climate, it is not surprising that there are increasingly urgent calls for a more ethical practice of law as well as a more compelling theoretical account of legal ethics.