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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.
o 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.
1 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?
o 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
- 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 
• …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.
- 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
• (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 by opposing counsel.
• (3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter,
that the lawyer reasonably believes is false.
• [Lawyer shall not knowingly
• (1) make a false statement of fact/law or fail to correct same to a tribunal,
• (2) fail to disclose controlling directly adverse legal authority in the jurisdiction,
• (3) offer evidence the lawyer knows to be false]
• [Note: False is not the same as perjured, witness may think it is true]
(b) A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
• [Lawyer who represents a C they know will lie shall take remedial measures]
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
• [Applies even if disclosure violates Rule 1.6]
[(d) In an ex parte proceeding, lawyer shall inform tribunal of all material facts to enable the tribunal to make an informed decisions, whether or not the facts are adverse]
• (f) "Knowingly," "known," or "knows" denotes actual knowledge of the fact in question. A
person's knowledge may be inferred from circumstances.
• (m) "Tribunal" denotes a court, an arbitrator in a binding arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.
A legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a binding legal judgment directly affecting a party's interests in a particular matter.
Nix v. Whiteside (305)
• Leading case on search of truth vs. duty to client
• Facts: R was appointed to represent W (charged of murdering Love), shortly before trial, R had a on conflicting obligations in representing W.
• R knew W is going to lie in court about seeing a gun in Love's hand, when he killed the victim in selfdefense. [note MR for R obligation to tribunal was knowledge (not strongly belief), but client changing story doesn't necessarily mean he is lying]
• Lawyer threatened to tell the judge and to withdraw W testified but not say he saw a gun, only that he knew that Love had a gun (didn't lie) W got convicted.
• Strickland ineffective-assistance test
• Strickland v Washington: to obtain relief by way of federal habeas corpus on a claim of deprivation of effective assistance of counsel under the 6th Amendment movant must establish both serious attorney error and prejudice
1. Counsel made "errors so serious that counsel was not functioning as 'counsel' guaranteed by the 6th amendment." W did not satisfy
2. Prejudice: "the claimed lapses in…performance rendered the trial unfair so as to 'undermine confidence in the outcome' of the trial… [A] defendant must show that 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" D has no right to commit perjury, hence not prejudiced. If W is not prejudiced, court need not address lawyer's acts. A state and not a federal question
• Compare the Cuyler Test P.171
• D must prove that "an actual conflict of interest adversely affected his lawyer's performance."
• There is no need to prove that had the lawyer performed differently, there is "a reasonable probability that…the result…would have been different," as in Strickland.
• Robinson testified that he told Whiteside: info is confidential
• "[W]e could not allow him to [testify falsely], because that would be perjury, and, as officers of the court, we would be suborning perjury if we allowed him to do it; . . . I advised him that, if he did do that, it would be my duty to advise the Court of what he was doing, and that I felt he was committing perjury; also, that I probably would be allowed to attempt to impeach that particular testimony"
• Rule 3.3 imposes duty to tribunal is higher than the duty to client
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