Anticipatory Self-Defense Claims as a Lens for Reexamining Zealous Advocacy and Anti-Bias Disciplinary Norms
49 Texas Tech Law Review 1 (2016)
58 Pages Posted: 22 Dec 2016 Last revised: 15 Mar 2017
Date Written: December 21, 2016
This article examines aspects of recently adopted ABA Model Rule 8.4(g), which subjects lawyers to professional discipline for discriminatory harassment or bias. This article, however, arises out of the Texas Tech Law Review 2016 criminal law symposium on violence against women. I participated specifically on a symposium panel focusing on “anticipatory” self-defense claims. As a result, this article follows a fairly non-linear trajectory in addressing Model Rule 8.4(g).
I initially define and analyze “anticipatory” self-defense claims, and conclude that these claims involve highly discretionary culpability judgments. This discretion creates an enhanced opportunity for bias in decision-making, and powerful scholarship indicates that this bias often cuts across gender lines, favoring men and disfavoring women in self-defense claims. Next, I inquire whether the advocacy of criminal defense lawyers in these cases improperly contributes to a gender bias dynamic. Looking at this question through the lens of traditional zealous advocacy, I conclude that the enhanced discretion built into anticipatory self-defense claims can invite improperly biased advocacy, because the zealous advocacy model trains defense lawyers to traffic in bias that favors their clients. Moreover, in this environment of zealous advocacy, lawyers’ own implicit biases about violence and gender can reinforce the influence of gender bias on a lawyer’s advocacy choices.
Here is where Model Rule 8.4(g) appears. Model Rule 8.4(g), I argue, is an important and valuable new disciplinary norm, because it makes clear that a lawyer’s bar card is not a professional license to discriminate. The precise question I pose for this article, however, is whether this disciplinary rule also should police the line separating proper from improper criminal defense lawyer advocacy. Examining selected legislative history behind Model Rule 8.4(g), I endorse the “advocacy and advice” exception that the final rule ultimately included after significant debate. I do not take this position because improperly biased defense lawyer advocacy should be embraced or even tolerated. Rather, I defend this exception because zealous defense lawyer advocacy plays a uniquely critical role in our criminal justice system, and subjecting defense advocacy strategies to professional discipline on claims of improper bias may do more harm to social justice than good. To address the legitimate concerns for how gender and other improper bias may animate defense lawyer advocacy, I explore mechanisms outside of the disciplinary system for regulating this lawyer misconduct.
Keywords: Model Rules, Professional Conduct, Self Defense, Zealous Advocacy
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