Conclusion and peroration
It is time to summarize.
Perhaps the best way to see the import of the arguments I have been offering is not as an attack on the adversary system (for, after all, I have not suggested that it should be replaced) so much as an attack on an ideology consisting of these ideas:
1.
The adversary system is the most powerful engine of justice ever devised.2. It is a delicately poised instrument in which the generation of just outcomes depends on the regular functioning of each of its parts.
3. Hence the pursuit of justice morally obligates an attorney to assume a onesided Broughamesque role.
4. The adversary system, in consequence, institutionally excuses lawyers from ordinary moral obligations conflicting with their professional obligations.
5. Broughamesque advocacy is, moreover, a cornerstone of our system of political liberties, for it is the last defense of the hapless criminal-accused against the awesome power of the state. To restrict the advocate is to invite totalitarianism.
I have argued against the first four of these propositions. About the fifth a more cautious conclusion is in order. The argument it offers, that the criminal defense lawyer “must not regard the alarm, the torments, the destruction which he may bring upon others” (Brougham, again), is rather persuasive, but only because of two special features of the criminal context: that we have political reasons for handicapping the government in its role as enforcer, and that the criminal defendant comes closest to the paradigm of the manin-trouble. The argument, then, countenances adversarial ruthlessness as a blanket policy only in criminal and quasi-criminal defense, and thus only in these situations is the adversary system fully available as an institutional excuse.
What does all this mean in noncriminal contexts, where this institutional excuse based on liberal fear of the state is unavailable? The answer, very simply, is this.
The adversary system possesses only slight moral force, and thus appealing to it can excuse only slight moral wrongs. Anything else that is morally wrong for a nonlawyer to do on behalf of another person is morally wrong for a lawyer to do as well. The lawyer’s role carries no moral privileges and immunities.This does not mean that zealous advocacy is immoral, not even when it frustrates the search for truth or violates legal rights. Sometimes frustrating the search for truth may be a morally worthy thing to do, and sometimes moral rights are ill served by legal rights. All I am insisting on is that the standards by which such judgments are made are the same for lawyers and for nonlawyers. If a lawyer is permitted to puff, bluff, or threaten on certain occasions, this is not because of the adversary system and the Principle of Nonaccountability, but because, in such circumstances, anyone would be permitted to do these things. Nothing justifies doing them on behalf of a predator.
But, it will be objected, my argument leads to a paradox, for I have claimed to offer a vindication, albeit a weak one, of the adversary system, and therefore of the duties of partisan advocacy that it entails. Am I not saying that a lawyer may be professionally obligated to do A and morally obligated not to do A?
That is indeed the conclusion, but there is no contradiction here. The adversary system and the system of professional obligation it mandates are justified only in that, lacking a clearly superior alternative, they should not be replaced. This implies, I have argued, a presumption in favor of professional obligation, but one that any serious and countervailing moral obligation rebuts. Thus, when professional and serious moral obligation conflict, moral obligation takes precedence. When they don’t conflict, professional obligations rule the day. The Principle of Professionalism follows from the fact that we have an adversary system; the Principle of Nonaccountability does not.
The point of elaborating the former is to tell the lawyer what, in this system, professionalism requires - to insist that it requires zeal, for example, even when cutting corners might be more profitable or pleasant. Professionalism can tell lawyers not to cut corners; my point is that it cannot mandate them to cut throats. When serious moral obligation conflicts with professional obligation, the lawyer must become a civil disobedient to professional rules.Not that this is likely to happen. Lawyers get paid for their services, not for their consciences. But so does everyone else. As we do not expect the world to strike a truce in the war of all against all, we should not expect lawyers to do so. Shen Te, the Good Woman of Setzuan in Brecht’s play, says: “I’d like to be good, it’s true, but there’s the rent to pay. And that’s not all: I sell myself for a living. Even so I can’t make ends meet, there’s too much competition.”[103]
That, of course, is the way the world is, and criticizing an ideology won’t change the world. The point of the exercise, I suppose, is merely to get our moral ideas straight: one less ideology is, after all, one less excuse.