PART I
Adversary Advocacy
Chapter 1
THE WELLSPRINGS OF LEGAL ETHICS
ADVERSARY ADVOCATES practice as partisans in the shadow of the structural division of labor between lawyer and judge and represent particular clients rather than justice writ large. They therefore come under professional obligations to do acts that, if done by ordinary people and in ordinary circumstances, would be straightforwardly immoral. They unfairly prefer their clients over others and, moreover, serve their clients in ways that implicate common vices with familiar names: most notably, lawyers lie and cheat. These vices will play a prominent role in the moral and political discussions to come, and the three chapters that constitute the first part of the bookâs larger argument therefore devote themselves to establishing that adversary advocates are in fact necessarily professionally obligated to display them.
Thus I begin, in this chapter, by identifying broad principles of professional conduct that every adversary system must recognize and explaining the genetic pressures that these principles exert on lawyers who practice under them. In addition, I elaborate some on the nature of lying and cheating, in order to forestall the objection that, especially when applied to more modest adversary systems, my argument depends on an unduly rigorous moralism. Then, in chapter 2, I consider the rules through which a regime of professional responsibility might regulate these pressures and argue that, although such rules can cabin lawyersâ professional vices, they cannot eliminate them. Finally, in chapter 3, I present an alternative doctrinal characterization of lawyersâ professional obligations, which answers certain objections that my earlier doctrinal arguments invite. Even as they cement lawyersâ professional obligations to lie and to cheat, the doctrines at issue in chapter 3 also sow the seeds of a distinctively lawyerly virtue, which I introduce at the end of the chapter under the name fidelity. In this way, the first part of the book sets the stage not just for the ethical troubles that will dominate Part II but also for the ethical hopes that will dominate Part III.
Critics of the legal profession often take the law governing lawyers to adopt extreme adversarialism.1 The professionâs defenders respond, sometimes angrily, that the critics wrongly emphasize contingent adversary excesses in the positive practice of lawyeringâthat they attribute the unprofessional intemperance of a minority of lawyers to the legal profession as a whole, and certainly that they ignore the many ways in which the positive law expressly limits lawyersâ partisanship.2 Although I accuse lawyers of displaying professional vices, I am sympathetic to the professionsâ defenders on this point. Philosophical legal ethics should treat legal practice respectfully, and it is a mistake to proceed as if lawyers must serve their clients single-mindedly or to take any other extreme view of the partisanship that lawyers must display. Accordingly, I accept that the partisanship at the core of lawyersâ professional obligations is limited, and indeed encroached on, from all sides by more specific rules of legal ethics that bind lawyers to values besides their clients. I claim only that these constraints do not, and could not possibly, eliminate the lawyerly vices that the underlying commitment to partisanship entails.
It is therefore important to proceed cautiously in writing about the lawyerly vices, and in particular to follow my earlier admonition to avoid sensational cases and instead to focus on the banalities of everyday adversary legal practice. Moreover, it is important to demonstrate that the lawyerly vices are not artifacts of one or another contingent (and misguided) elaboration of the adversary ideal in the positive law but are instead inscribed in the genetic structure of adversary advocacy, in all its forms. My approach reflects these challenges. In addition to preferring the commonplace over the extraordinary, I attend constantly to the distinction between the essential and the merely contingent features of adversary advocacy. Although I will repeatedly take up the positive law of lawyering, often in considerable detail, I will never analyze positive law for its own sake but always, rather, to illustrate the possibilities and limits of adversary advocacy in all its forms. I can therefore accept that the legal professionâs defenders are right about the constraints on partisanship that the positive law incorporates and claim that lawyers nevertheless come under professional duties to lie and to cheat. I argue, moreover, that the formal structure of adversary advocacy means that not just these constraints but any constraints that are consistent with the adversary ideal will necessarily be unable to purge the legal profession of the lawyerly vices.
THREE FOUNDATIONAL PRINCIPLES OF ADVERSARY ADVOCACY
The foundations of adversary advocacy remain constant across all forms of adversary legal practice and therefore do not depend on any particular formulation of positive law. But they are nevertheless inscribed in positive law, including in the ABAâs Model Rules and their several predecessors. The basic structure of adversary advocacy may therefore be discerned from the study of the law governing lawyers. This structure involves three foundational principles, which I call lawyer loyalty, client control, and legal assertiveness.
Lawyer Loyalty
Two provisions of the Model Rules display the basic structure of adversary advocacy in a particularly clear light, and I use these provisions as a template to organize the discussion. Model Rule 1.3 (addressed in this section) establishes the lawyerâs duty of loyalty to her client; and Model Rule 1.2 (addressed in the next) establishes the clientâs control over the ends that the lawyer pursues. Both provisions articulate open-ended standards that reflect the basic assumptions of adversary legal practice rather than narrow rules that call for technical application.
Perhaps the adversary advocateâs most familiar duty is to represent her client loyally. This duty of loyalty, which is familiarly expressed in the language of zealous advocacy, has in one form or another maintained a constant presence in all major codes of legal ethics adopted over the past century. The 1908 ABA Canons of Professional Ethics stated that the lawyer should represent her clients with âwarm zeal.â3 The ideal was carried forward in the 1969 ABA Model Code of Professional Responsibility: The Canons (announcing the broad norms underlying the Model Code) include the principle that âa lawyer should represent a client zealously within the bounds of the lawâ;4 and the more specific Disciplinary Rules state that âa lawyer shall not intentionally fail to seek the lawful objectives of his client through reasonably available means permitted by law and the Disciplinary Rules.â5 Much the same duty appears in the Model Rules: Model Rule 1.3 requires lawyers to display âdiligenceâ in serving clients;6 the Official Comments to this Rule, which âprovide guidance for practicing in compliance with the Rule[],â7 add that lawyers should âtake whatever lawful and ethical measures are required to vindicate a clientâs cause or endeavorâ and must therefore âact with commitment and dedication to the interest of the client and with zeal in advocacy upon the clientâs behalfâ;8 and the Preamble to the Model Rules mentions zeal three times.9 These commands are not controversial. The Restatement of the Law Governing Lawyers summarizes the substance of loyalty, saying that a lawyer must âproceed in a manner reasonably calculated to advance a clientâs lawful objectives.â10 And Hazard and Hodes, who place loyalty at the very center of adversary lawyersâ professional ethics, observe that âthe single most fundamental principle of the law of lawyering is that so long as lawyers stay within the bounds of law, they serve society best by zealously serving their clients, one at a time.â11
The law governing lawyers, moreover, shores up the primary duty of loyalty though secondary rules that guard against certain particularly worrisome or prominent forms of disloyalty.12 The most important of these are the conflict of interest rules, which regulate, or even forbid, a wide range of activities through which lawyers might be tempted to betray their clients. Most generally, these rules impose restrictionsâincluding procedural restrictions requiring written informed consent13 and substantive restrictions against waivers of the duty to be competent and diligent14âon lawyersâ freedom to represent clients when âthe representation of one client will be directly adverse to another clientâ15 or, more broadly still, when âthere is a significant risk that the representation of one or more clients will be materially limited by the lawyerâs responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.â16 More narrowly, the rules take aim at certain especially troublesome behaviors. For example, they forbid lawyers from âusing information relating to representation of a client to the disadvantage of the client unless the client gives informed consent.â17 They impose an outright ban on representations that âinvolve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.â18 They forbid lawyers from writing themselves into their clientsâ wills19 or appropriating literary or media rights in their clientsâ stories,20 and they quite generally insist on substantive fairness in business transactions between lawyers and their clients.21 And they forbid lawyers from being paid to represent clients by third parties who interfere with the lawyer-client relationship.22 In these and other ways, the Model Rules emphasize and enforce the lawyerâs duty of loyalty.
Client Control
In spite of its central importance to legal ethics, lawyer loyalty cannot stand alone. Loyalty carries no content apart from the end to which it refersâloyalty, even zealous loyalty, requires an object. And the loyalty and zeal provisions in the ethics codes, even when supplemented by the conflicts rules, do not adequately fix their own objects, because identifying âthe clientâ as the object of the lawyerâs loyalty and the end of her zeal is not enough to fix the lawyerâs professional duties in a meaningful way. Saying simply that the lawyer should be loyal to the client does not determine to what about the client the lawyerâs loyalty should attach, and this choice will dramatically affect the nature of the lawyerâs ethical life. Indeed, in the extreme case, if the lawyerâs loyalty were tied to the clientâs interest in moral or legal rectitudeâto the clientâs justice, as one might sayâthen the lawyer would cease to be meaningfully an adversary advocate at all. In order to represent her client loyally, she would be required first to judge her clientâs cause to determine what protecting his rectitude required. (The ends of the representation, which would depend upon the right outcome of the case, simply could not be identified apart from this judgment.) Lawyer loyalty underwrites a distinctively adversary legal practice only if it is owed more narrowly and immediately to the client than the suggestion about moral or legal rectitude allows. Adversary advocacyâindeed, the structural separation between advocate and tribunalârequires not just loyalty but also a client- rather than justice-centered approach to loyalty.
The ethics codes must therefore supplement the lawyerâs duty of loyalty by specifying loyaltyâs ends, and they must (if they are to retain their adversary character) set ends that look more or less narrowly to the client. The codes fulfill both requirements, specifically through provisions that allocate decision-making authority between lawyers and clients in ways that give clients control over the basic purposes of a legal representationâcontrol to fix the objectives that lawyers must loyally pursue. Moreover, the ethics codes establish just how the lawyerâs loyalty will be client-centered, specifically by directing lawyers to pursue clientsâ instructions and not just clientsâ interestsâthat is, to defer to clientsâ beliefs about what ends they should pursue. The ethics codes allocate authority between lawyer and client in a way that supplements lawyer loyalty with client control and requires lawyers (within limits, of course) to be the servants of their clientsâ points of view.
The Model Rules announce the basic principle of client control in Rule 1.2, which gives clients broad power to determine âthe objectives of representation.â23 The Model Code similarly directs the lawyer to âseek the lawful objectives of his client.â24 And the Restatement elaborates on this basic structure of client control, stating that that â[a] client may instruct the lawyer during the representationâ and that lawyers should act âto advance a clientâs objectives as defined by the client.â25 The convergence concerning client control is not absolute,26 but the basic idea is the same in all three regimes. That is not surprising: âThe attorney-client relationship,â as one court has observed, âis one of agent to principal, and as an agent the attorney must act in conformity with hisâŠinstructions and is responsible to his principal if he violates this dutyâ;27 and the ethics codes borrow their ideas about lawyer loyalty and especially client control from the general law of agency.28 The law governing lawyers proceeds, against this background, to elaborate the agency relation between lawyer and client in ways that emphasize client control.
Most importantly, the ethics codes protect client control over ends from encroachment by the lawyerâs superior knowledge and technical expertise, which often pose the gravest threats to client autonomy. Thus, although the ethics codes recognize lawyersâ technical expertise by giving them limited control over the means through which to pursue the ends that clients set,29 the line between âmeansâ and âendsâ is given a flexible rather than rigid interpretationâone that emphasizes client control. In particular, choices that would ordinarily be classed as involving mere means and therefore allocated to the lawyerâfor example, respecting the aggressiveness of a cross-examinationâare treated as involving ends and allocated to the client as soon as they impinge on the clientâs broader values. As the comment to Model Rule 1.2 says, when disputes about what would ordinarily be classed as means arise, âlawyers usually defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.â30 (The juxtaposition of harm to others and cost to the client is striking in this context, and fortifies the clientâs right to subject even means to the test of his broader values, because client control over cost is particularly clear and unchallenged.) In this way, the ethics codes restrict lawyersâ control over means to areas in which lawyers have âspecial knowledge and skillââin effect, to âtechnical, legal and tactical matters.â31 Indeed, the lawyerâs control over means is best understood not as an independent value at all but rather as an instrument to serve the clientâs control over ends: the clientâs power to set and pursue ends is made more valuable by giving the client access to a lawyer with discretion to devote her expertise to pursuing the clientâs ends more skillfully than the client could do on her own.
Lawyers are, to be sure, permitted, and perhaps even encouraged, to offer clients independent counsel even within the sphere of client authorityâthat is, not just in matters of technical law but also, as the Model Rules say, concerning âother considerations such as moral, economic, social and political factors, that may be relevant to the clientâs situation.â32 But even the practice of counseling clients concerning the ends of a representation serves, finally, to reemphasize the clientsâ ultimate authority over these ends. Lawyers may advise but must never command, and they should take care, in offering advice, to avoid unduly influencing t...