Ethical Limits on Civil Litigation Advocacy: A Historical Perspective
62 Pages Posted: 12 Mar 2013
Date Written: 2012
This article considers and critiques the history of civil litigation conduct standards from ancient times to the present. For hundreds of years in both England and France, truth and reasonable behavior were constant duties owed to the judicial system itself, and they remain paramount today. The primary evolution has come with regard to whether any of three additional court duties - just cause, motive or objective merit - also take precedence over client duties. Early European litigation standards varyingly imposed versions of each, and in nineteenth century America, lawyers and scholars debated alternative models for proper litigation advocacy, ranging from a full client-oriented view of zealous advocacy to a lawyer morality view of just cause. This led to varying regulatory positions, starting with the Field Code in 1850 and culminating with the ABA’s model ethics compilations of the current day. In this process, zealous advocacy rose and ebbed as an ideal, but it never overrode core duties to the court. The broad duty of just cause largely transformed into a more narrow objective merit standard, but objective merit, like truth and reasonable behavior, remains superior over conflicting client duties.
This history is important because it informs and narrows the ongoing modern debate as to proper litigation advocacy. Although civil litigation attorneys often cite to an ideal of zealous advocacy, zeal is not a black letter duty today and it never has been a paramount duty in formal regulatory standards. Duties to the court always have been superior. The question instead has been which court duties trump client duties. Even this question is narrow. The question over time has not been whether truth and reasonable behavior override client advocacy but what additional court duty also limits a lawyer’s advocacy - just cause, proper motive or objective merit.
Keywords: legal ethics, professional responsibility, civil litigation, civil procedure, legal history
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