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May|June 2004

The Good Advocate

By Lincoln Caplan

BY STRIKING ONE WORD from the rules governing Arizona lawyers, the state's highest court has made a bid to reverse the decline in its bar's behavior. "As advocate," the old rules said, a lawyer should "zealously" represent his client. Last December, the adverb "zealously" was removed and replaced with words demanding that lawyers "conduct themselves honorably." As the state bar put it, the change was made because "lawyers had misused" zealous advocacy "to justify unprofessional, intemperate, and uncivil conduct while engaging in the practice of law."

The term "zealous advocacy" once defined not a pretext but an ideal for American lawyers. When a lawyer took a case, he had a duty to identify his interest with his client's. Only by carrying out this obligation with total commitment could he ensure the success of the adversary system. Truth, or at least justice, would emerge from the clash of zealous advocates.

In 1820, Lord Henry Brougham, a famous British lawyer and Parliament member, made the classic statement of this view in his defense of Queen Caroline, who was charged with adultery. King George IV had chosen Caroline as his bride to provide him with an heir so the government would pay off his debts. The adultery charge was dropped after Brougham threatened to make public the king's secret marriage to another woman. Brougham said that "an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client."

The concept was enshrined in the first national code of conduct for lawyers, passed in 1908 by the American Bar Association, and ever since it has remained in the ABA's rules, which are followed by most states. But it has contributed to the rise of "sharp practice" (chicanery and underhanded conduct), "Rambo lawyering" (fighting to win at all costs), and similar misdeeds. In 1998, an Atlanta judge ordered the law firm of Alston & Bird to pay $250,000 and DuPont to pay $11 million for engaging in overzealous advocacy. The lawyers withheld key evidence in a case involving the fungicide Benlate, which has been linked to extensive crop damage and to the birth of children without eyes as a result of prenatal exposure. The judge ordered DuPont to endow professorships at four Georgia law schools to help guard against similar wrongdoing by lawyers. The excesses of zealous advocacy have revived a quest for professionalism—for lawyers, in other words, who seek to act like officers of the court, with a responsibility to the public.

THE ARIZONA COURT'S BOWDLERIZING of "zealous advocacy" is a triumph of legal scholarship. In the 1970s, philosophers identified and began to question a principle at the heart of the adversarial system—that lawyers were not morally accountable for their role in defending a client's bad actions. Scholars revealed the basic flaw of this "role morality": It encouraged lawyers to help clients skirt the law in the name of zealous advocacy.

Critics argued that the concept assumed an adversarial process, whereas most legal matters call for peacemaking. Even in court cases, they went on, zealousness does not promote justice, because one side usually has more resources than the other and the zealous advocate with superior means can flatten his foe. They also worried that the standard would devalue truth as a goal of the law and encourage lawyers to promote winning above all else—for example, by withholding key facts from an adversary as the DuPont lawyers did.

Legal philosophers have offered a competing model of the ideal lawyer. His duties are not to his client alone, they contend, but also to society. A lawyer should strive to be a moral arbiter as well as an advocate. This reform would be fundamental because a lawyer could no longer push aside his own moral qualms secure in the belief that the adversarial process would lead to a just result. It would transform the role of the lawyer—sometimes leading him to say no to a client when a client-centered lawyer would say yes.

The change in the Arizona rules is "very significant" in the words of the state's chief justice, but it doesn't go as far as scholars would like. The Arizona bar purged "zeal" from its rules to turn around the bar's race to the bottom and to improve its image. While this change may turn out to be cosmetic, that might not be the worst result, since scholars have yet to offer a convincing alternative to zealous advocacy. A lawyer could strive to answer moral quandaries by sifting through legal norms, but this approach turns on the belief that, as the philosopher David Luban has noted, "every moral principle finds support in the law." In his view, "law just isn't that good." And whose morality should prevail if every lawyer is asked to become a moral arbiter?

Lincoln Caplan is the editor and president of Legal Affairs.

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