The character of a life in the law is, in part, a matter of individual aspiration. Consider, for example, James Boswell in 1762—over two hundred years ago—writing of the prospects he fancied he would enjoy if he were to be called to the bar in Scotland:

Law, ethics and morality. What distinguishes these concepts? What connects them? Those are my questions. My argument is this. There is a traditional understanding of the relationship between law and ethics, and that understanding is inadequate as description. While passing as description, the traditional understanding of the relationship between law and ethics is instead normative. The normative message in the traditional understanding is worthy of examination and ripe for critique. This Article offers an alternative method of understanding the relationship between law and ethics and a normative examination of the old and the new.

Litigation lawyers learn early in their practices that although the adversary system functions tolerably well in many civil cases, its defects are nevertheless extensive and profound. Tactics calculated to delay, distort, obfuscate, obstruct and wear down opponents through frustration and cost are common. Questionable conduct is justified by appeals to the ethics of the adversary system. The consequences are often born by clients—through increased cost, delay and conflict—and even by lawyers themselves—through stress, fatigue and dissatisfaction with the quality of life that the practice of litigation in our adversary system brings with it.

The traditional sociological model of professions identifies both a structural and a moral component. The structural component consists of the apparatus of selfgovernance, which in the case of the profession of law takes the form of law associations with delegated legislative authority over membership and disciplinary functions. Implicit in the institutional apparatus of self-governance are two claims characteristic of professions, that they embody an expertise mastered only after substantial intellectual training and practical experience, and that the profession is autonomous, both with respect to state regulation and market forces. Expertise and autonomy are functional aspects of professions as social collectivities; but, with slight modification, they become as well features of individual professionals. Thus it is that the practitioner is recognized as an expert, through training and experience, and her clients must place their trust in her since their own lack of expertise prevents them from gvv/8evaluating her services. The practitioner’s services are also autonomous in so far as they are not wholly shaped or wholly dictated by the demands of the client, the regulatory needs of the state, or the pressures of the market.

Since the late 1970s American law journals have published literally thousands of articles on the problem of lawyers’ ethics. In these articles American scholars lament the current state of the legal profession and suggest that something has gone seriously wrong with legal practice and with the way lawyers conceive the ideals and norms of that practice. A few defenders of current ethical standards remain, but the dominant tone of current scholarship is highly critical of lawyers’ seeming ability to remove their “professional” actions from the scrutiny of basic precepts of ordinary morality. In contrast with this American proliferation of critical perspectives on legal ethics, little Canadian scholarship on the subject of lawyers’ ethics exists; as Gavin MacKenzie put it in his 1993 guide to lawyers’ professional responsibility and discipline, Canadian literature on legal ethics is “embarrassingly sparse”. A few American articles on legal ethics have been published in Canadian

I want to examine two motives well known in discussions of legal practice. The two, in short form, are ‘making money’ and ‘simply winning’. They are in themselves seldom analyzed in a philosophical way, but I will try to make a start. As motives other than a belief in the merit of what one does, I shall call them ‘cynical’ motivations. While someone might equally describe as cynical, say, being part of a system of legal decisions dictated from an agenda designed only for the rich, the more apposite understanding here is the conviction that legal outcomes are ‘without right answers’ (or no one is better than another) and will flip first one way and then another depending upon what the judges have for breakfast. From that position of meritless law, there is little to move a lawyer but ‘money’ or ‘winning’. I want to consider happiness in legal practice under those cynical assumptions. I shall say, in the most general way, that one is happy only when one is able to rest content with what one does. This means that one is conscious of having in one’s life what one values as such. Certain things are ‘part of’ and (if not that) ‘directed toward what is part of’ this value. To indicate the duality, I shall speak of ‘constituent’ and ‘ulterior’ values as together what one values as such. Whether or how the two cynical motivations in the practice of law might contribute to this state is a question worth asking. And an answer will be given.

As the breadth and complexity of law increases, the focus of lawyers seems to narrow. Law is increasingly seen by lawyers and the public alike as a “business” rather than a “profession” with lawyers simply providers of legal services. The client is “job one”, with the nebulous concept of “the public interest” somewhere further down in the list of priorities and preoccupations of individual lawyers. Clients are, after all, the ones who pay, and it is their interests that must be served.

Virtually all elements of society seem, in the last quarter of the twentieth century, to be beset by economic importunity. Other values are eclipsed by the proclaimed necessity to run every activity and organization as a business and the relentless commercialization of human life and politics. Nowhere is this economic inexorability more apparent than in professional sports, where ‘professional’ does not refer to a person whose advanced education and cultivated skills are used to serve others, but simply designates someone who makes a living as an athlete. Indeed, the distinction between professional and amateur, once so robust that it was used to strip medals from athletes who took money, has become obsolete. Nowadays athletes lose medals only when they are caught taking drugs. Salaries in professional sports have become uncoupled from performance, as familiar headlines about journeyman major league baseball players signing million dollar contracts demonstrate. Legitimate ‘stars’ (or ‘superstars’ as they have come to be known as the rhetoric inflates accordingly) demand to renegotiate their contracts when they have had an impressive year but are silent when their numbers fall. And virtually every piece of visible attire an athlete wears is marketed, by name or by number.

Lawyers in the Province of Ontario are regulated by the Law Society of Upper Canada, which has produced the Professional Conduct Handbook. Ensuring compliance by its members with the rules contained in the Handbook is part of the profession’s commitment to public service and of its role as a self governing body. As a former treasurer, Laura Legge, expressed it:

The issues surrounding governmental interference with the rights of private property have been a source of recurrent conflict throughout American social and political history. From Revolutionary-Era debtor relief laws, to early nineteenth-century legislative grants of private monopolistic and condemnatory powers, to the great abolitionist struggles of the Civil War Era, to the rise of the twentieth century’s regulatory state, bitter rhetorical and political wars have been waged about the nature, extent, and sanctity of claimed individual rights of private property.

Gerald C. MacCallum, Jr. was a professor of philosophy who taught at the University of Wisconsin—with a few leaves of absence to teach elsewhere—from 1961 until 1977. He taught a variety of undergraduate and graduate courses in the philosophy department there and he co-taught the jurisprudence course from time to time at the University of Wisconsin Law School.