Legal Ethics, Vol. 4, Part 2
19 Pages Posted: 18 Aug 2003
This review describes how the dissembling strategies of the former President in the Jones case and impeachment proceeding, so widely reviled at the time, were in fact simply the advocacy techniques commonly employed by lawyers representing clients in our current (exaggerated) version of the adversary system. The comparison is pointedly not meant as a defense or apologia for Clinton, but as a criticism of lawyers and their "ethics."
The core vice that Posner finds in Clinton's efforts to contain the truth of the Lewinsky affair is very similar to a fault the public perceives in the behavior of lawyers generally. Namely, lawyers often try to obscure or distract from factual truth order to prevent the law from applying as intended. Most of this avoidance behavior is technically lawful because, for pragmatic reasons, allowances for such avoidance have been deliberately built into the criminal laws against perjury, obstruction of justice and the like. These allowances are a compromise that the law makes with morals so its criminal prohibitions will not unduly chill the advocacy zeal on which the adversary system depends. Because of these allowances, however, it may be problematic to make a legal case against Clinton for his efforts to conceal the Lewinsky affair. Nonetheless, Clinton's manner of defense discloses unmistakably the serious discrepancy that exists between the standards of honesty that lawyers apply to themselves and those that the public expects of honest people in general and of a legitimate system of law in particular.
In his report and analysis of the events, Judge Posner seems to recognize the problems, as did the public generally, but he does not take the opportunity to draw the consequent conclusions about certain widely accepted norms of adversarial practice today.
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