The adversary system and moral accountability

The most elementary problem of divided responsibility facing lawyers results from the adversarial structure of common-law legal systems. Chapter 1, “The Adversary System Excuse,” is the oldest paper in the book (I published it as a working paper in 1980).

My target in “The Adversary System Excuse” is a view of legal ethics that in Lawyers and Justice I called the “standard conception of the lawyer’s role,” but that I now call neutral partisanship. Neutral partisanship sees lawyers as hired guns, whose duty of loyalty to their clients means they must, if necessary, do everything the law permits to advance their clients’ interests - regardless of whether those interests are worthy or base, and regardless of how much collateral damage the lawyer inflicts on third parties. Thomas Babington Macaulay asked rhetorically “whether it be right that a man should, with a wig on his head, and a band round his neck, do for a guinea what, without those appendages, he would think it wicked and infa­mous to do for an empire.”^[11] Proponents of neutral partisanship don’t regard Macaulay’s question as merely rhetorical, and their answer is yes. They see lawyers as agents of their clients, professionally obligated to do whatever the client wants done if the law permits it. After all, the client is entitled to do anything within his legal rights, and a lawyer who agrees to represent him takes on the responsibility of serving as the client’s proxy.

Not only are lawyers their clients’ partisans and proxies, but profession­alism requires that lawyers remain morally neutral toward lawful client ends, refraining from waving a censorious finger at the client or pulling their punches out of moral squeamishness.

These are very aggressive claims, and I argue that they are false. As Macaulay suggests, they imply that lawyers have a role morality that can differ dramatically from morality outside the role, what we might call “common morality.” How can that be? Moral accountability is not something we can put on and take off like a barrister’s wig. If a lawyer acting on a client’s behalf ruins innocent people, can she really excuse herself by saying, “It’s not my doing, it’s my client’s doing” or “It’s the law’s doing”? Excuses like these sound like a hit man’s rationalizations.

Often, lawyers say it’s the adversary system’s doing. The adversary system pits interest against interest and lawyer against lawyer in a contest to determine whose right gets vindicated. As Monroe Freedman pointed out in Lawyers’ Ethics in an Adversary System - one of the pillars of the modern legal ethics literature - the adversary system requires advocates to hew to their clients and let adversaries and others take care of themselves, even when gross injustice results.

“The Adversary System Excuse” argues that the excuse is only as good as the adversary system itself, and the adversary system is not nearly as good as its defenders believe. Defenders offer an idealized picture of a system designed to elicit maximum input from the contesting parties. In reality, the parties labor prodigiously to keep the bad evidence out, or, better still, to manipulate the system so their adversaries never get their day in court. One issue on which I break decisively from Fuller is his defense of the adversary system, which in my view fails.^[12] We ought to retain the adversary system because it isn’t demonstrably worse than its alternatives. But if that is the highest praise we can offer, the adversary system cannot underwrite lawyers’ blanket disclaimer of moral accountability for the damage they do.

In one significant respect, however, I have modified the essay’s critique of the adversary system. If the weakness of the adversary system lies in the incentives it creates for lawyers to hide or exclude evidence, its strength appears when lawyers argue points of law that do not rely on evidence. Here, the virtues of free and full debate can indeed manifest themselves, and a commitment to rational discussion of law speaks in favor of the adversary system. Stuart Hampshire, in two of the most significant philosophical books in recent years, argues forcefully that we have no image of procedural justice more basic than hearing all sides of arguments, and I accept his argument.^[13]

Outside this context, however, the critique of the adversary system implies that lawyers cannot duck moral accountability. In Lawyers and Justice I argued that if lawyers are morally accountable for their representations, they can no longer passively acquiesce in the agent’s role. They must become moral activists, using law practice to further justice. Much of the book focused on public interest law practice on behalf of progressive causes. Here, I pursue the critique of neutral partisanship in a different direction. The conclusion of “The Adversary System Excuse” is, carefully stated, that often lawyers’ moral obligations will differ very little from those of a non-lawyer in similar circumstances. But it may not be easy to figure out what the non­lawyer’s responsibilities are. As philosopher Richard Wasserstrom observed thirty years ago, neutral partisanship allows lawyers to inhabit a simplified moral world.^[14] Take it away and the simplicity vanishes. In fraught, adver­sarial situations, we will often have a hard time figuring out which principles apply (“Turnabout is fair play,” or “Two wrongs don’t make a right”? “Turn the other cheek,” or “Fight fire with fire”?), or how to weigh them against each other. Real cases, with real people, usually have bad behavior on all sides. Eliminating the stripped-down, simplified moral code of neutral partisanship lands lawyers back in the same messy, dilemma-ridden, ambiguous moral world as everyone else.