Shifting Paradigms of Lawyer Honesty

Abstract:     
Why do lawyers find “honesty” so complicated? Why do law students recoil from and widely dislike courses that present the ethical message of the Model Rules?

The Model Rules contain at least four distinct conceptions of what it means for a lawyer to be honest. Moreover, the levels of honesty that the ethical rules demand have changed markedly in recent times. There is, for example, the new duty to reveal confidential information under Rule 4.1, a duty which even the drafters contest.

This article considers the special and somewhat contorted meaning of “honesty” that is required in our current exaggerated version of the adversary system. It shows how the Model Rules today practically require lawyers to seek legal advantages that their clients do not deserve.

Finally, the article considers where the recent trajectory of the Model Rules might be leading. Using as an example a standard textbook case in which lawyers skillfully managed to secure a large and seemingly unmerited advantage for their client (Symphony Space v. Pergola), it considers what it would be like to live in a world of truly honest lawyers.

Number of Pages in PDF File: 46

Keywords: Professional Responsibility, Legal Ethics, Honesty Model Rules of Professional Conduct, Lawyers' Reputation, Client Fraud, Client Crime, Undeserved Advantages

Accepted Paper Series