'Lawyer as Public Citizen' - A Futile Attempt to Close Pandora's Box
35 Pages Posted: 3 Sep 2009 Last revised: 15 Feb 2010
Date Written: August 20, 2009
The American Bar Association’s Model Rules of Professional Conduct (“Rules”), adopted by every state legislature except California, include a prescription for the duties and responsibilities of the legal profession. In the Preamble, the Rules begin with the well-known premise and directive that lawyers should be “zealous advocates” in serving their clients’ interests. The Rules further require that lawyers strive to prove facts and to provide legal bases in support of those interests, to abide by their clients’ decisions regarding the objectives of representation, and to consult with their clients on the means pursued to reach those objectives. The Rules therefore cultivate an advocacy ethic which relies on the adversary system to yield the public values of truth and justice as a byproduct of opposing attorneys’ efforts to secure a favorable outcome for their clients. Only later, however, do the Rules seek to limit this sweeping characterization of “lawyer as zealous advocate” by introducing a lawyer’s conflicting and vaguely defined obligation to be a “public citizen.” Indeed, the Rules provide little guidance on what a “public citizen” is and how to reconcile these conflicting roles.
This article illustrates how the Rules themselves predispose practitioners to embrace the role of “zealous advocate” at the expense of “public citizen.” Further, it shows how the legal education system and the myriad of pressures faced by a lawyer combine to marginalize “public citizen” considerations in representation. Finally, it proposes a solution which would minimize the cognitive dissonance felt by attorneys who seek full actualization of their duties under the Rules.
Section I establishes the origin of the problem in the Rules, which place conflicting professional duties on attorneys in relation to their clients and to society. Section I then develops the paradox by parsing the term “zealous advocate” and examining the etymology and connotations elicited by its use, followed by an exploration of the Rules’ vague charge to attorneys as “public citizens” to act in the best interest of society, the law and justice. Finally, Section I concludes with analysis exposing the impotence and inadequacy of the “public citizen” duty as a constraint on the means and ends adopted during representation.
Section II discusses the impropriety of establishing “zealous advocacy” as the starting point and model baseline for the legal profession, incorporating the perspectives of a few prominent legal ethics scholars. Section II then illustrates how the context and pressures of real world advocacy illuminate the practical shortcomings of the Rules, forcing practitioners to choose between roles which vary in their consequences for abandonment. Section II concludes by examining how the combination of skills, pressures and insufficient guidance in the Rules exacerbates a lawyer’s predisposition to embrace the “zealous advocate” role to the likely denigration of the “public citizen” role.
Section III discusses the emphasis of the current mainstream curriculum in legal education on the role and tools of “zealous advocacy” to the effective exclusion of “public citizen” concerns. In addition, Section III explores how the prioritization of winning in legal education and practice has Pyrrhic implications for both the lawyer and society.
Section IV critiques the proposals of several contemporary legal commentators, focusing on their practical shortcomings. Section V concludes this article by proposing an alternate and more comprehensive solution than legal ethics scholarship to date, culling various useful elements from existing proposals and combining them with elements and ideas which address a broader range of practical issues.
Keywords: professional responsibility, moral, morality, ethics, legal ethics, advocacy, zealous advocate, public citizen, model rules of professional conduct, ABA, American Bar Association, Carnegie Report, legal education, reform, lawyer, duties, justice, attorney-client
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