The National Association of Honest Lawyers: An Essay on Honesty, 'Lawyer Honesty' and Public Trust in the Legal System
35 Pages Posted: 30 Jul 2000
Lawyers representing criminal defendants have a duty to press the client's cause diligently ("zealously"), but they also have duty to keep client information confidential. In interpreting these two duties together, most lawyers conclude it is perfectly all right to zealously urge some of the material facts of a case while hiding behind the duty of confidentiality to withhold other facts, even when the overall effect is seriously misleading to jurors and others. This subtle mis-coupling of two salutary rules has led criminal defense lawyers to assume that they are entitled and, indeed, required to defend their clients by means of systematic disinformation in the form of half-truths, tacit deceptions and even deliberately fostered misconceptions--so long as they avoid using outright lies. The legal profession's low reputation for honesty is one of the immediate consequences. The growing public disquiet about lawyer ethics is not mainly because people think lawyers neglect or abuse their professional standards. Rather, the main problem is the ethical duties themselves, at least as widely interpreted. The mis-coupling of the ethical duties of diligence and confidentiality has produced an inevitable tendency towards a kind of partial-truth advocacy in which lawyers knowingly distract from truths they do not doubt, create false impressions and discredit testimony they should reasonably know to be factual. As a result, people feel they cannot trust lawyers to be straight. Despite the assumption that these advocacy styles are essential to provide criminal defendants with "effective" counsel, it is not obvious that criminal defendants are, on the whole, better off with them. This particularly so if, as appears to be the case, the public reaction to these tactics is so negative that defendants end up being represented by what amounts to a self-discredited and largely distrusted profession. The distrust of lawyers is therefore not just an image problem of an insular profession. Our basic civic order relies on the legal system and public respect for it. If the public cannot trust the lawyers who are entrusted with the legal system, there is a problem that casts a shadow on the integrity of the very concept of rule of law. This essay addresses these issues and proposes one possible solution. Particular attention is given to the application of these problems for lawyers in the criminal justice system. The objective is to provide a base for thinking about how, concretely, criminal and other lawyers can move from the present stage of lawyer ethics to a more advanced stage in which the legal profession will become a truly forthright and credible social institution.
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