Professional
Responsibility
Zealous Advocacy: A Reassessment
["Zealous Advocacy: A Moral Reassessment" is drawn from James R. Elkins, The Moral Labyrinth of Zealous Advocacy, 21 Cap. U. L. Rev. 735 (1992)]
We assume, as lawyers, that an adversarial ethic can provide the foundation for our moral lives. This is the way one judge put it:
The Rules of Professional Conduct purport to govern the minimal level at which lawyers must operate within the system. They provide a lowest common denominator approach to good practice. They assume as a first principle that the lawyer is a champion on behalf of his client--that is the essence of advocacy. The lawyer is to advance the interest of his client zealously within the bounds of the law. [Frederick J. Martone, Adversary Adjudication on Trial, 21 Ariz. St. L. J. 227, 228)(The author, at the time the statement was published, was associate chief presiding judge, Superior Court of Arizona in Maricopa County, Phoenix, Arizona)].
Judge Martone goes on to point out that lawyers have responsibilities, under existing ethical rules, that extend beyond the client. Even so, "[m]any lawyers have a one-dimensional view of the adversary system. They think their role is limited to advancing their clients' interests in a zealous way. Their role as an officer of the court has become a metaphor with little substance." [Id. at 233]
Many law students and lawyers cling to the assumption that the adversarial ethic is an uncontestable means to justice. But it is this adversarial ethic that fuels an illusion, professionally supported, that lawyers are not responsible for the damage and harm done in the name of adversarial zeal need not be the concern of lawyers. Lawyers are quick to turn a deaf ear to criticisms and critiques of adversarialism. We believe, as lawyers, that we can be both good lawyer and good person. These implicit notions--thatare taken for granted--shield us from troubling moral implications of the adversarial ethic.
Zealous advocacy that tests the moral limits of zeal now has its own label: Hardball. Judge Charles W. Joiner describes hardball advocacy as advocacy "used to subvert the process of finding facts expeditiously and inexpensively" and that diverts "the search for truth." [See Charles W. Joiner, Our System of Justice and the Trial Advocate, 24 U.S.F. L. Rev. 1, 15 (1989)(The author, at the time the article was written, was Senior United States District Judge, Eastern District of Michigan)]. Judge Joiner presents the following examples of hardball advocacy:
abuse of the discovery process,
Judge Joiner argues that these well-known tactics should be condemned. [Id. at 17] "Hardballers, by their actions in the name of advocacy, if not reigned in, would destroy the adversary system created by society to do justice through advocacy." [Id. at 19]
If we are to understand the proudest and saddest moments in our lives as lawyers--and the disdain that the public has for lawyers and that we have for each other as lawyers--then we must confront and reflect on the images, metaphors and stories in which "hardball tactics" are made a common part of lawyering. Is it possible to be a good person and a good lawyer if your ultimate moral principle is permeated with an adversarial ethic limited only by the outer limits of the law?
Zealousness goes to the heart of what lawyers are about--it is as all of us know, and students of law argue so fervently, the job of lawyers to be zealous. Being zealous is something many lawyers learn without thinking about it or reflecting on it. It seems a little absurd to suggest that a lawyer ask: How zealous do I want to be in this case? Lawyers, when they earn their money, live up to their ideals of the profession, and gain the admiration of other lawyers, do so as zealous advocates. When a lawyer is less than zealous in their advocacy, there is a real sense of failure.
Lawyers take pride in zealous advocacy. It is not something we do because we demand it of ourselves. We demand it of ourselves in a way that is as much internal (that is, psychological) as it is external (and role prescribed). Zealousness is built-in to the ritual of lawyering. We internalize zealous advocacy, and it becomes a habit. (Our best virtues are those we enact as a matter of habit.) The ritual of zealousness is a matter of caring so intensely and making this intensity into a regular feature of professionalism and lawyer character.
When zealousness becomes part of our ritual life as lawyers, it takes on a double-edged meaning. First, we do it without thinking and we become the best that we can be as lawyers. Second, we do it and we become the kind of lawyer the public has learned to hold in disdain. We create a profession in which moral malaise flourishes.
We need to explore the moral conundrum of the virtue and vices found in our habits of zealousness and how our habituated responses to zealousness are allowed to mask an impoverished, pathological strand of the adversarial ethic. Lawyers become "true believers," loyal and there is no hiding the problem with lawyer ethics. It is a problem we see in law offices, courtrooms, law school classrooms, daily newspapers and magazines, television lawyer dramas and the growing new genre of lawyer films. You don't have to be a philosopher, sociologist, or psychologist to know that being a lawyer in these troubles times is difficult. If you read newspapers, watch television, talk to your neighbors, you learn that lawyers are held in the same regard as used car salesmen and politicians. If you don't already know this about lawyers you may find yourself drinking coffee one day and read in your local morning newspaper the results of yet another poll that puts in graphic form the low regard the general public has for lawyers and their ethics.
Edmund D. Pellegrino, a physician, writes in a recent article in the Journal of Contemporary Health Law and Policy, that "[t]he professions today are afflicted with a species of moral malaise that may prove fatal to their moral identities and perilous to our whole society. This malaise is manifest in a growing conviction even among conscientious doctors, lawyers and ministers that it is no longer possible to practice their professions within traditional ethical constraints." [Edmund D. Pellegrino, Character, Virtue and Self-Interest in the Ethics of the Professions, 5 J. Contemporary Health L. & Pol. 53 (1989)]. Students of law today are well aware of this malaise and the public perception of lawyers that is so fundamental a part of it.
Some law students experience the malaise during the course of their legal education, when they realize that their training as lawyers ignores the problematic relations of law and justice. Many students puzzle over how to retain their ordinary moral sensibilities during the course of their education and initiation into the profession. Law students confront professional moral malaise first hand in their work with lawyers before they graduate.
We need, I think, to understand the mess that we are in before we can begin to respond to what Pellegrino diagnosed as moral malaise.
Lawyers who take justice seriously as the object of their work are in a "terrible bind"--a predicament connected to larger problems of life. . . . [D]espite the temptation to despair, we continue to dream dreams of justice and yearn for new, more enduring constructs of law. Contemporary experience tells us that consensus about constructs of law is unlikely to emerge. We must seriously consider how to live as a people in a midst of widespread political dissensus. The heart of the matter is that in law, as in life, we are left with dreams of justice and without a hard rock of foundation for acting on our dreams.[Howard J. Vogel, In the Case of Justice: Reflections on Robert Cover's Turn Toward Narrative, 7 J. Law & Religion 173, 177 (1989)]
We cannot afford, morally or psychologically, to ignore the problem of professionalism. The general public has always held lawyers accountable for the tenets of ordinary morality and we must finally decide in what ways we might be guided by a tradition of ethical thinking. One way to ignore the moral problem of lawyers and their ethics is to engage in the kind of discourse that makes us--insiders--reject what the public--as outsiders--already knows: the ethics of lawyers may not deserve the name ethics. The problem, put simply, is this: Lawyers sometimes act as if they are not bound or limited by the most basic tenets of ordinary morality. It is a problem many lawyers worry about, and talk about; a problem we try earnestly to understand.
One way to deal with the problem of lawyer ethics is to simply accept the profession, as it is, warts and all. "Every profession has its incompetents and those who ignore the best dictates of common sense and good judgment." Or we can try to explain the problem away. "There have always been incompetent and unethical lawyers, and the only reason we appear to have more today is that there are more lawyers. There are no more unethical and uncaring lawyers than there are physicians or journalists."
Notes
The adversarial ethic which lies at the heart of the partisan
role lawyers play as advocates is a feature of our virtue as lawyers and
a source of the pathologies of character that deform the legal persona.
Thomas Huff, in "The Temptations of Creon: Philosophical Reflections on the Ethics of the Lawyer's Professional Role," 46 Mont. L. Rev. 47 (1985) observes that lawyers are subject to a "variety of temptations. There are, of course, the usual temptations of private gain manifest in laziness, dishonest, or thievery. . . . More often, however, if there are moral errors which tempt you, they are errors of professional role rather than errors of private gain. They show up as failures of ethical insight and moral sensitivity. It is the kind of moral error which comes from too great an identification with role. . . ."
On the
development of professional values by law students in their first encounters
with law office work, see: Lawrence K. Hellman, The Effects of Law Office
Work on the Formation of Law Students' Professional Values: Observation,
Explanation, Optimization, 4 Geo. J. Leg. Ethics 537 (1991)
