Ethics In Advocacy Outline

04. Ethics in Advocacy

Chapter 7 P.283-365

A. Adversary Justice is Good for Lawyers but Bad for Justice (P.297)

Is the adversary system, at least as it now operates, fair? Does it give us justice? Who benefits? Who does not?

• We know that a litigant’s ability to prevail in court is aided if she has the funds to investigate the facts (often with private investigators), conduct broad discovery, and research the law, all of which can be costly.

• Sometimes, litigants are equally well funded but often they are not. The proposal here would further reduce the advantages enjoyed by greater wealth.

• We say “further” because we already adjust the advantages of wealth, mainly through discovery.

• Please think about this proposal and take a position in favor of or against it (or some intermediate view) and defend it.

• Against Common Law System

  • If one party is better in resources to gather facts and hire lawyer injustice to the less wealthy party need to expand discovery (share what each party knows) to level the inequality between the varieties by sharing legal and factual resource, but privilege info impede search for truth

    • C.f. Civil law: both lawyer would be obliged to search for facts/ authority useful to their opponents

  • Housing court: Layperson facing eviction, judge would not ask landlord’s lawyer whether they know any defense that the tenant is not aware of.

  • Liberal discovery rule: lawyer would fear finding law/ facts useful to their opponent disincentive for lawyer to discover facts/ law

B. Should lawyers be held morally accountable for their clients? (298)

Can lawyers who act ethically and legally be morally accountable for their choice of clients or what they do for them?

• Rule 1.2(b) “A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.”

• Do you agree that in order for the adversary system to work, lawyers cannot morally criticize other lawyers for their choice of clients and must come to the defense of lawyers who are publicly criticized for those choices?

  1. Yes: Making moral judgements about other lawyers based on the identity/ goals of their clients/ nature of their work will impede the availability of counsel, including counsel for political dissidents, minorities, capital defendants, and other most in need of law’s protection should think privately, but don’t criticize publicly

• If so, does that exempt from criticism

  1. lawyers who helped Big Tobacco hide, for decades, tests that showed the health dangers of smoking even as their clients were declaring that there were none who helped to hide evidence of tobacco’s health hazards behind claims of privilege

  2. What about lawyers who for decades aided state and local government in frustrating implementation of Brown v. Board of Education?

• Are lawyers immune to moral criticism because they were acting as lawyers, in role our justice system assigns, representing unpopular clients

  1. Does it matter if the lawyer knew or had good reason to believe that smoking can be dangerous to health?

  2. But: tobacco lawyers freely choose how they wish to use their talent and free choice carries moral responsibility that lawyers do not get a pass for their choice of clients and how they represent them, even if legal and ethical

King & Spalding Drops the House (299)

• Paul Clement, a star appellate lawyer at K&S, agreed to represent the House of Representatives to fight a challenge to the Defense of Marriage Act.

• K&S then withdrew, claiming that Clement had not gone through proper procedures for taking the case.

• Clement disagreed and said withdrawal is wrong in any event.

• The firm withdrew after much public and client criticism.

• Some clients then left the firm because it withdrew.

• Assume King & Spalding “dropped the House” because it feared a backlash from clients and associates and prospective associates. (299-301.) Even if it did not have to accept the House as a client in the first place, having done so, should we criticize it for abandoning it?

  • Firm should not drop a client because its legal position is extremely unpopular, as defending them is what lawyers do and the adversary system of justice depends on it

  • Efforts to delegitimize any representation for one outside of the legal controversy threatens the rule of law

Rule 2.1

• In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.

Rule 2.1 comment [2]

• …It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

Rule 1.2(b)

• A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities.

Witness False Statements - Some Variations (see page 321)

• Civil or criminal case: should it matter?

• Anticipated or completed testimony

• The client or a witness the lawyer calls

• The accused in a criminal case or not: should it matter?

• Knowingly false (perjury) or not: should it matter?

• Lawyer knows or reasonably believes

C. Truth and Confidences

Aim to encourage client is candid to the lawyer

Rule 3.3

• (a) A lawyer shall not knowingly:

  • (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.

  • (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed...

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