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The Zeal of the Civil Advocate

Published online by Cambridge University Press:  20 November 2018

Murray L. Schwartz
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Abstract

This article is concerned with the accountability of the civil advocate for results obtained for a client. It distinguishes the criminal trial by arguing that for effective implementation the adversary system, as it is commonly understood, requires that the professional advocates be equally competent and equally adversary and that because it does not meet these criteria, the criminal trial cannot be looked to as a model either of the adversary system or of the behavior of advocates in the civil trial. Rules of behavior for the civil litigator should be drawn with the primary objective of ascertaining truth. Moreover, the civil litigator cannot claim immunity from moral accountability by reference to the lawyer's role; he or she is personally accountable for an immoral result obtained for a client. Seeking to avoid this accountability all lawyers might reject an immoral but lawful cause, so that persons with such causes would be deprived of professional representation. The conflict between the lawyer's personal morality and the social value of professional assistance is resolved by reference to a formula for assigning counsel similar to those in Mathews v. Eldridge and Lassiter v. Department of Social Services. The author analyzes the moral dilemma of a lawyer who is so assigned and proposes a solution.

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Articles
Information
American Bar Foundation Research Journal , Volume 8 , Issue 3 , Summer 1983 , pp. 543 - 563
Copyright
Copyright © American Bar Foundation, 1983 

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References

1 Schwartz, Murray L., The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669 (1978).Google Scholar

2 Id. at 673.Google Scholar

3 Id. at 673-74.Google Scholar

4 Id. at 697.Google Scholar

5 A primary source for the discussion that follows is David Luban, The Adversary System Excuse, to appear in David Luban, ed., The Good Lawyer: Lawyers' Roles and Lawyers' Ethics, Maryland Studies in Public Philosophy (Totowa, N.J.: Rowman & Allanheld, in press). In adumbrating these justifications, as reflected in the literature, my concern is not with their validity or cogency. It is to test whether any militates rejection of the two postulates. In this testing I shall refer only to those justifications that seem to implicate the postulates.Google Scholar

6 It is possible that a biased tribunal might also arrive at the truth; even that in some cases that bias is essential to overcome other defects in the process. Nevertheless, the position that impartiality is overall necessary for the truth is the most plausible position.Google Scholar

7 Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976); Monroe H. Freedman, Lawyers' Ethics in an Adversary System (Indianapolis, Ind.: Bobbs-Merrill Co., 1975); David Mellinkoff, The Conscience of a Lawyer (St. Paul, Minn.: West Publishing Co., 1973).Google Scholar

8 See Luban, supra note 5.Google Scholar

9 Id. at 9-12.Google Scholar

10 See Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978); Wolfram, Charles W., Client Perjury, 50 S. Cal. L. Rev. 809 (1977).Google Scholar

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12 ABA's Model Code of Professional Responsibility DR 7-103(B) (Aug. 1980).Google Scholar

13 See, e.g., Smith v. Phillips, 455 US. 209 (1982); United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963).Google Scholar

14 Model Code of Professional Responsibility DR 7-103(A) (Aug. 1980).Google Scholar

15 Cal. Bus. & Prof. Code § 6068(c) (St. Paul, Minn.: West Publishing Co., 1963).Google Scholar

16 It is not difficult to think of circumstances in which the distortion is on the other side, as, e.g., a prosecution in a relatively small county against organized crime or wealthy defendants.Google Scholar

17 It is important to make clear that what is at issue in the text is the set of “intrasystem” rules, i.e., the set of rules designed to implement the adversary system itself. Rules based on values external to the system may be applied within the system in such a way as to interfere with the ascertainment of truth within the system. The exclusionary rule and the spousal privileged-communication doctrine would be illustrations of such rules, which by excluding probative evidence interfere with the ascertainment of truth. In each such case, the defeating of truth is a recognized cost of the protection of other values, as deterrence of illegal police behavior in the first illustration and the protection of the marriage in the latter. Thus, Marvin Frankel's proposed rules of professional responsibility for the advocate begin: “In his representation of a client, unless prevented from doing so by a privilege reasonably believed to apply.” Marvin E. Frankel, The Search for Truth, 123 U. Pa. L. Rev. 1031, 1057 (1975). See text infra at note 19. The issue addressed in the text is whether there are intrasystem values that require subordination of the truth.Google Scholar

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20 E.g., Model Code of Professional Responsibility DR 7-106(B)(1) (Aug. 1980).Google Scholar

21 Of course the fact that the ultimate outcome in both civil and criminal proceedings is a judicial decree does not mean that there is no difference between a criminal and a civil proceeding in the ways in which human dignity is to be preserved. The role of the state as civil judgment enforcer is significantly different from its roles of prosecutor, adjudicator, sentencer, and punisher.Google Scholar

22 Schwartz, supra note 1, at 669.Google Scholar

23 See Lassiter v. Department of Social Services, 452 US. 18 (1981).Google Scholar

24 I am not here concerned with problems of res judicata, collateral estoppel, or the like.Google Scholar

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28 Alan Donagan, Justifying Legal Practice in the Adversary System, to appear in Luban, ed., supra note 5.Google Scholar

29 452 US. 18 (1981).Google Scholar

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32 In re Gault, 387 U.S. 1 (1967), held that a juvenile cannot be adjudicated a juvenile delinquent without due process of law, which includes provision of an attorney.Google Scholar

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34 334 U.S. 1 (1948). In that case, the Supreme Court of the United States held that a state court in junction against the enforcement of a racially restrictive covenant on the alienation of real property constituted “state action” for the purposes of the Fourteenth Amendment. The rationale and scope of this concept of state action has been the subject of extensive scholarly puzzlement and has not been the subject of extensive subsequent judicial development.Google Scholar

35 In its Formal Opinion 314, the American Bar Association Committee on Professional Ethics put the case for a different standard in advising a client with respect to tax matters: “A wrong, or indeed sometimes an unjust, tax result in the settlement of a controversy is not a crime.” ABA Comm. on Professional Ethics and Grievances, Formal Op. 314 in 51 A.B.A.J. 671, 672 (1965).Google Scholar

36 See text supra at part III.Google Scholar