Islands of Civic Virtue? Lawyers and Civil Justice Reform

This article is about lawyers and professional behaviour in litigation. Its basic argument is that there is a problem of civil justice which can only be adequately addressed if the nature of civil litigation is reconceptualised and the role of lawyers is clarified and adjusted. Civil litigation is, in part, a public activity which has virtuous purposes. Being a 'litigator' (ie a litigation lawyer) is an ethical activity in itself. 'Legal ethics' should be seen not simply as negative restraints on certain kinds of behaviour but also as a source of positive obligations to promote the ends of legal processes. The opening quotation is from two American critical scholars who are better known for debunking the legal profession than supporting it. Essen­tially what is happening now, however, is that heirs of legal realism, like Gordon and Simon, are so sceptical about the capacity of rules and enforce­ment procedures to constrain self-interested behaviour that they are turning back to personal and group morality as a means of regulation. Their recent position on lawyers introduces a theme to be explored here in the context of civil justice. How, in an adversarial system seemingly based upon 'generalised selfseeking', can we secure some islands of civic virtue?Arts, Education & Law Group, School of LawFull Tex