The adversary system and the two principles
Sometimes a lawyer pursuing a case finds herself compelled to do something outrageous. Graymailing is one example. A second is the Lake Pleasant bodies case, in which lawyers Frank Belge and Frank Armani, having been told by their client Robert Garrow of two murders he committed, found and photographed the bodies but kept the information to themselves for half a year - this despite the fact that the father of one of the victims, knowing that Armani was representing an accused murderer, personally pleaded with him to tell him if he knew anything about his daughter.[33]
Such spectacular examples could be multiplied, but I think the point is made.
A more important point is that the spectacular examples are not the only problem - they only dramatize it. I dare say that all litigators have had cases where, in their heart of hearts, they wanted their client to lose or wished that a distasteful action did not need to be performed. The problem is that (recollecting Brougham’s words) “to save that client... [the lawyer] must not regard the alarm, the torments, the destruction which he may bring upon others.”[34] On the face of it, this is as terse a characterization of amorality as one could hope to find. Of course, that was not Brougham’s intention; he meant to be stating a moral ideal. If so, however, it is reminiscent of Nietzsche’s description of the old Teutonic code: “To practice loyalty and, for the sake of loyalty, to risk honor and blood even for evil and dangerous things.”[35] Loyalty outweighs the evil of the cause - except, of course, that it does nothing of the sort. Evil remains evil, and loyalty to evil remains just that: loyalty to evil.Lawyers phrase the ideal as “zealous advocacy,” and the current ABA Model Rules of Professional Conduct enjoin lawyers to “act with commitment and dedication to the interests of the client and with zeal in advocacy on the client’s behalf.”[36] This means that a lawyer should “take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor.20 It sounds nicer than Zarathustra or Brougham, but in fact there is no difference: the zealous advocate is supposed to press the client’s interests to the limit of the legal, regardless of the “torments or destruction” this wreaks on others.
Nor does the phrase “lawful and ethical” mitigate this. Lawyers understand “ethical” to refer to the law governing professional ethics, not lawindependent moral principles, and the Model Rules carefully explain that a lawyer’s representation of the client “does not constitute an endorsement of the client’s political, economic, social or moral views or activities” - a version of Schwartz’s Principle of Nonaccountability that disclaims lawyer responsibility for the moral character of client representation.[37] As for “lawful,” the law is inherently double-edged: any rule imposed to limit zealous advocacy (or any other form of conduct, for that matter) may be used by an adversary as an offensive weapon. In the words of former Judge Marvin E. Frankel, “the object always is to beat every plowshare into a sword.”[38] The rules of discovery, for example, initiated to enable one side to find out crucial facts from the other, are used nowadays to delay trial or impose added expense on the other side; conversely, one might respond to an interrogatory by delivering to the discoverer several tons of miscellaneous documents, to run up their legal bills or conceal a needle in a haystack. Rules barring lawyers from representations involving conflicts of interest may equally be used by adversaries to drive up the other side’s costs by having their counsel disqualified; civil discovery rules sanctioning lawyers for frivolous litigation documents can be invoked by adversaries to punish their foes and intimidate them into abandoning their claims. The general problem of double-edgedness is described by the novelist Yasunari Kawabata:
When a law is made, the cunning that finds loopholes goes to work. We cannot deny that there is a certain slyness... a slyness which, when rules are written to prevent slyness, makes use of the rules themselves.[39]
It is not just the rules governing lawyer conduct that are double-edged - double-edgedness is an essential feature of any law because any restraint imposed on human behavior in the name of just social policy may be used to restrain behavior when circumstances make this an unjust outcome.
This is the unbridgeable gap between formal and substantive justice. David Mellinkoff gives these examples:The law intended to stop sharpers from claiming money that is not owed (the Statute of Frauds) may sometimes defeat a just debt, because the claim was not in writing.
The law intended to stop a man from holding off suit until defense becomes impossible - memories grown dim, witnesses dead or missing - (the Statute of Limitations) may sometimes defeat a just suit, because it was not filed fast enough.
The law intended to prevent designing grown-ups from imposing on children (the defense of infancy) may defeat a just claim, because the man who signed the contract was 20 instead of 21.
The law intended to give a man, for all his misfortunes, a new start in life (the bankruptcy laws) may defeat a widow’s just claim for the money she needs to 24
live on.
The double-edgedness of law underlines the moral problem involved in representing a client “zealously within the bounds of the law.” If on the one hand this means forwarding legal claims that are morally dubious, as in Mellinkoff’s examples, on the other it means pushing claims to the limit of the law and then a bit further, into the realm of what is “colorably” the limit of the law.[40] [41] “Zeal” means zeal at the margin of the legal, and thus well past the margin of whatever moral and political insight constitutes the “spirit” of the law in question.[42] The limits of the law inevitably lie beyond moral limits, and zealous advocacy always means zeal at the margin. It is at this point that the adversary system looms large, for it provides the institutional excuse for the duty of zealous advocacy. Each side of an adversary proceeding is represented by a lawyer whose sole obligation is to present that side as forcefully as possible; anything less, it is claimed, would subvert the operation of the system. The 1969 ABA Code of Professional Responsibility states the matter quite clearly: “The duty of a lawyer to his client and his duty to the legal system are the same: to represent his client zealously within the bounds of the law.”[43] Everything rides on this argument. Indeed, it is misleading to call this Justification by the Adversary System an argument. It is more like a presupposition accepted by all parties before the arguments begin. Even lawyers with nothing good to say about the legal system in general believe that their current actions are justified or excused by the nature of the adversary system. The point deserves to be labored a bit, for the universal acceptance among lawyers of the Justification by the Adversary System is a startling thing, a marvelous thing, a thing to behold. It can go something like this: one talks with a pragmatic and hard-boiled attorney. At the mention of legal ethics, he smiles sardonically and informs one that it is a joke (or that it just means obeying the ethics rules, nothing more). One presses the subject and produces examples such as the buried bodies case. The smile fades, the forehead furrows, he retreats into a nearby phone booth and returns moments later clothed in the Adversary System, trailing clouds of glory. Distant angels sing. The discussion usually gets no further. This portrait is drawn from life, but I do not tell the story just to be snide. It is meant to suggest that discussions of the adversary system usually stop where they ought to start, with a chorus of deeply felt but basically unexamined rhetoric. What, then, is the adversary system? We may distinguish narrow and wide senses. In the narrow sense, it is a method of adjudication characterized by three things: an impartial tribunal of defined jurisdiction, formal procedural rules, and most importantly for the present discussion, assignment to the parties of the responsibility to present their own cases and challenge their opponents’.[44] The attorneys are their clients’ agents in the latter task. The structure of the adversary system, then - its fission of adjudication into a clash of one-sided representations - explains why Schwartz’s Principle of Professionalism holds. But it explains the Principle of Nonaccountability as well. If advocates restrain their zeal because of moral compunctions, they are not fulfilling their assigned role in the adversary proceeding. But, if lawyers must hold themselves morally accountable for what they do in the course of the representation, they will be morally obliged to restrain their zeal whenever they find that the means used or the ends achieved in the advocacy are morally wrong. Therefore, or so the syllogism goes, the structure of adversary adjudication must relieve them of moral accountability, and that is how the adversary system entails Schwartz’s Principle of Nonaccountability - how, that is, the adversary system underwrites an institutional excuse for moral ruthlessness. All this holds (if hold it does) only within the context of adjudication. Lawyers, however, commonly act as though Schwartz’s two principles characterized their relationship with clients even when the representations do not involve the courtroom.[45] Thus, there is a wide sense of the adversary system in which it is defined by the structure of the lawyer-client relationship rather than by the structure of adjudication.[46] When lawyers assume Schwartz’s two principles in negotiations and counseling as well as in courtroom advocacy, and attribute this to the adversary system, they are speaking of it in the wide sense. Lawyers often equivocate between the narrow and wide conceptions, appealing to the virtues of adversary adjudication in order to justify ruthless behavior on behalf of clients in nonlitigation contexts. Getting paid by the client, of course, makes it easier to ignore the difference between courtroom and other activities: $800 an hour has been known to buy a lot of Professionalism and will even stand in quite nicely for Moral Nonaccountability, especially around the first of the month - and an hour is an hour, in or out of court. Rather than pursue this equivocation, however, I shall ask if an institutional excuse can be based on the adversary system conceived in the narrow sense. If problems crop up even there, certainly they will be worse outside of a legitimately adversarial institution.