“The Law is full of phraseology drawn from morals, and by mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.”
–Oliver Wendell Holmes Jr., The Path of the Law
While writing my Honors Scholar Thesis my senior year at DePauw University, Justice Holmes’ words became the perfect frame for my interdisciplinary study of legal ethics. This quote was taken from an address from an 1897 Harvard Law Review, The Path of the Law, 10 Harv. L. Rev. 457, (1897), in which Holmes offers a piece of pragmatic wisdom to the practicing lawyer. In essence, the lawyer should assume the role of “the bad man” who is not concerned with principles of ethics, axioms and systematic reasoning. Instead, the lawyer should be concerned with self-interest, preservation, and the immediate consequences influencing one’s actions. From this perspective, the lawyer better positions himself to protect those interests that “the bad man” might have in predicting how the court will respond, given the facts and circumstances that surround a particular case. As a somewhat critical undergraduate student, I noted that this perspective makes broad, “questionable” assumptions about the client while offering a somewhat cynical philosophy for the role that the lawyer must play for a successful study and practice of law. The emphasis on practice and prediction is a hallmark of Holmes’ pragmatic view of the law with experience at the foundation.
Holmes represented a critical juncture in the theory and practice of law, drawing attention to the intellectual content of the law, reviving historical relationships between law, ethics, and practical wisdom. Holmes believed in demystifying the law, removing notions of omnipresent knowledge and appeals to “the infinite” in order to focus on practical application and reasonable prediction. As a philosophy student, with a focus in ethics and morality, I was never a fan of pragmatism. In fact, I was rather perturbed by Holmes’ candid admission. Nonetheless, I found Holmes’ position to be “reasonable” and incredibly helpful as I embarked on my interdisciplinary study of legal ethics, specifically focusing on the duty to protect client confidences.
I first considered writing on legal ethics during my sophomore year at DePauw when I became inspired by a particular dilemma raised during the 2008 regional Ethics Bowl competition, a team-based philosophical debate. This dilemma is nothing new to the legal community: your client admits to a murder that another lawyer’s client is on trial for. Your actions as an attorney are governed by Rule 1.6(a)-(b) or the corresponding ethics rule of your state, and underlying policy considerations for confidentiality. The natural question became, “What will you do in this situation?” Simply put, I felt that I needed more than five to seven minutes of speaking time before a panel of judges to adequately address the implications (and ramifications) in handling this dilemma. Personally, there was a deeper tension within this question that I wanted to somehow voice and then thoroughly examine.
Moreover, when reading the stories of wrongfully incarcerated individuals such as Alton Logan and Lee Wayne Hunt, see People v. Logan, 224 Ill. App. 3d 735, 586 N.E.2d 679 (1991); see also State v. Hunt, 357 N.C. 257, 582 S.E.2d 593 (2003); also Jeff Deskovik, Lee Wayne Hunt Revisited, The Westchester Guardian (2007-2008), the hypothetical turned into a disturbing reality. Overall, it was obvious that a divide exists between what some might consider as “objective morality and ethics,” and “professional ethics.” Setting aside the notion that what is “morally right” is not always “legally ethical,” my study of legal ethics introduced me to the dual roles of the lawyer: the officer and the advocate.
Among many sources I consulted on the dual roles of the lawyer, I found Professor Roberta K. Flowers’ work The Role of the Defense Attorney: Not Just an Advocate, 7 Ohio St. J. Crim. L. 647 (2010), to be most helpful in closely outlining these roles. Professor Flowers characterized the role of the officer through the following duties:
[R]especting the need for truth and truth-seeking within the confines of the adversary system . . . [, maintaining] a duty of candor to the court and others . . . [,] required to make decisions that reflect [this] respect for the truth-seeking function of the trial process . . . [and] required to refrain from involving himself in misrepresentation, fraud, and dishonesty.
7 Ohio St. J. Crim. L. at 647-48. Particularly as an officer, the lawyer is instrumental to preserving the interests of the adversary system, aiding the effectiveness of the trial process through his or her knowledge of procedure and the law in general, and overall seeking to ascertain the “truth.” As a system-centered role, the officer has a duty to avoid, and seek to remedy, negative activity that would result in the devaluation of the trial process and overall hindrance of justice being carried out. In short, a “harmony” between the bar and bench, between the officer and system, must be maintained. See id. at 649 (quoting Chief Justice Marshall in Ex parte Burr, 22 U.S. 529, 530 (1824)).
In contrast, the role of advocate is mainly client-centered, placing the interests of the individual as fundamental to the lawyer’s motivations and actions, greatly reminiscent of Holmes’ pragmatic approach. As an advocate, the lawyer uses his or her knowledge of the law to protect and support the client’s interests reasonably within the bounds of the law. Id. at 648. An attorney’s intimate knowledge of the law provides “safer” passage through the adversary system, protecting the client from the overwhelming power of the state or other interests (at least, from a criminal perspective).
In addition to the officer and advocate roles, the Preamble of the ABA’s Model Rules includes the role of the public citizen. However, because I found the former mentioned roles to be, more so, institutional or system based, in which aspects of the dual roles are heavily emphasized and central to the practice of law, my focus in the early part of my study and thesis writing became to further define these two roles and attempt to understand them at a deeper, philosophical level.
At the foundation, these roles are based upon a collection of duties not necessarily defined by abstract philosophical ideals or categorical imperatives. Within the roles of officer and advocate, a range of duties include advising with an informed legal understanding, asserting the client’s position, negotiating on the client’s behalf, evaluating the client’s legal affairs, all while upholding the rules and merits (or values) of the adversary system. The lawyer must learn all of the facts surrounding a case, keeping confidences, while maintaining “candor” or honesty to the court. Through these obligations, the lawyer works within the system as an intermediary between the law (governing bodies, codes, etc.) and the people who find themselves in contention with it. In turn, these duties serve a seemingly inherent good in the promotion, protection, and perpetuation of the system and those subject to it.
At the time I was researching and writing my thesis, my limited understanding of these duties led me to believe that the advocate’s client/interest-centered obligations outweighed the duties of “candor” and maintenance of the profession that the officer owes to the system. Indeed, these were the conclusions I drew from my study, looking from the outside in as a critical undergraduate student. I questioned how these roles, which seemed outright antithetical to one another, could be realistically balanced when even an undergraduate student could notice a heavy lean towards the more tangible goals of “advocacy,” and the more so theoretical goals tied to justice values as an officer. And yet, the critic may argue that the officer “advocates” on behalf of the system and overarching justice values, where theoretical interests are still just that—interests, a mere side of an adversarial equation.
Returning from these thoughts, I desperately wanted to force theory to remain in conversation with practice. Therefore, I re-examined the Ethics Bowl hypothetical and asked the question, “What do the roles of officer and advocate require me to do?” If I had knowledge that my client committed a murder that another lawyer’s client is being convicted of, what options do I have? Although Rule 1.6 requires the lawyer to maintain client confidences, hence the duty of the advocate, I wondered whether the role of the officer required something more for the sake of justice. Or does the officer’s silence uphold the greater tenets of the adversary system—the need for confidentiality? And what of the exceptions to this rule? Could they be made to answer these questions? I believe this dilemma exposes a conflict between the duties of the officer and advocate, a need for reconciliation.
Nearly two years ago, I wrestled with these questions from outside of the profession, looking in. Today, as a law student looking from the inside out, I know now that I have much to learn. I understand the need of our adversary system to protect itself for the sake of perpetuation, legitimacy, and (what some may consider) the lack of a viable alternative. Still, I continue to wonder whether an obvious emphasis on the advocate’s duties is an over-extension of Republican Ideals (in the Jeffersonian sense of the word), which greatly fueled the framers’ intentions in forming our government. If the advocate is a product of a healthy fear of tyranny of majority, state, or otherwise, then at what cost? Perhaps the officer’s role may suffer, creating an imbalance in ethical duties.
Then again, I wake up from this ethical nightmare, grab my casebook, and read chapter 2.