The Morals and Politics of Adversary Lawyers - Florida State ...

ecommends it that this motive in itself renders otherwise unobjectionable
conduct impermissible. 17
Finally, this feature of lawyer’s professional conduct would survive
even if the adversariness of legal practice were reduced far below current
levels, for example to disapprove of pleadings of purely technical
defenses⎯involving, say, statutes of limitations⎯that are today
encouraged or required. Any account of legal ethics that is connected to a
recognizably adversary conception of legal process will acknowledge that
lawyers must prefer their clients over others in a manner that would
ordinarily be immoral⎯that whereas impartiality requires a person to hear
all sides, adversary lawyers represent one side. Thus, the principle that a
lawyer may not sabotage a client’s case on account of his own belief as to
its merits (which amounts to the idea that a lawyer may not sit in judgment
over his client) lies at the very core of adversary procedure in any form, as
a practical expression of the structural separation between lawyers on the
one hand and judges and juries on the other. 18 And although the precise
17. Even if a lawyer may not sabotage a client’s case on grounds of her own conscience, it is of
course a separate question whether she may refer to her conscience as a ground for withdrawing from
the case altogether or refusing to accept the representation to begin with. Even here, however, the
lawyer’s right to refer to her conscience is limited.
As regards withdrawal, the lawyer is limited by the requirement that the withdrawal may not unduly
prejudice the client. See MODEL RULES OF PROF’L CONDUCT R. 1.16(b) (1983) (suggesting that a
lawyer may not ordinarily withdraw from representing a client unless the “withdrawal can be
accomplished without material adverse effect on the interests of the client”); see also Postema, Moral
Responsibility in Professional Ethics, supra note 4, at 84-85 (commenting that under the Model Code
of Professional Responsibility “[o]nce a lawyer has undertaken to represent a client, however,
permissive withdrawal is allowed only in a few restricted circumstances, none of which includes the
conscience of the lawyer”) (citations to Model Code of Professional Responsibility DR 2-110
omitted).
And even as regards declining to commence a representation, where the potential client has not in
any way relied on the lawyer and the lawyer’s possibility for referring to her conscience should be
greatest, this possibility is subject to substantial limits, both practical and legal. As a practical matter,
the division of labor between judge and lawyer that the adversary system insists upon entails (as a
matter of logic) that half of all legal representations proceed on behalf of clients who ought to lose.
And as long as there exists any measure of agreement among lawyers as to the merits of the cases they
argue, the adversary system is not practically sustainable unless many lawyers advocate on behalf of
clients that they believe should lose.
Finally, on top of this practical necessity, there even exist legal limits on a lawyer’s right to defer to
her conscience in choosing her clients. Thus it is common for courts to conclude, for example, that
“[t]he belief of a defense lawyer that his client is guilty is insufficient to excuse him from a court
appointment in a criminal proceeding.” Jones v. State, 1987 OK CR 103 (citing MODEL CODE OF
PROF’L RESPONSIBILITY EC 2-29 (1969)); see generally Anders v. California, 386 U.S. 738 (1967).
And the ABA Model Rules of Professional Conduct, in Rule 6.2, place quite general limits on a
lawyer’s right to avoid court-appointed representation on the grounds of her conscience. Although the
Model Rule states that a lawyer may decline a court-appointed representation where “the client or the
cause is so repugnant to the lawyer as to be likely to impair client-lawyer relationship or the lawyer’s
ability to represent the client,” Model Rule 6.2(c), the annotations to the Model Rules construe this
right narrowly. Thus this right may not be exercised based on “such factors as the repugnance of the
subject matter of the proceeding, the identity or position of a person involved in the case, the belief
that the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of
a civil case.” ANNOTATED MODEL RULES OF PROF’L CONDUCT R. 6.2 annot. Indeed, Hazard and
Hodes conclude that Model Rule 6.2(c) does not raise a lawyer’s conscience as an ultimate
justification for declining an appointed representation at all, but instead treats the lawyer’s conscience
as important only insofar as it has instrumental consequences for clients. Thus, Hazard and Hodes say,
Model Rule 6.2(c) “applies only when . . . repugnance is of such an intensity that the quality of the
representation is threatened.” HAZARD & HODES, supra note 12, at 840.
18. The centrality to our current legal practice of the principle that a lawyer must not sit in
judgment over her client’s case does not, of course, entail that this principle has no critics. Willliam
Simon, for example, has proposed an alternative view of legal ethics which he calls the “Contextual
View,” whose “basic maxim is that the lawyer should take such actions as, considering the relevant
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