Reconceptualizing Ethical Roles

George Washington Law Review

Volumn 65, Issue 2, 1997, Pages 169-209

  Zacharias, Fred C ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 0031527797     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (311)

1. In discussing lawyers' "role" throughout this Article, I am not referring simply to how lawyers should act in particular situations implicating moral or systemic dilemmas. Rather, I refer to the general approach or attitude that lawyers take to the representation of clients and to the effect of their actions on third-party and societal interests.
2. See, e.g., Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 46, 49 (1991) (discussing prosecutors' obligation to "do justice"); see also sources cited id. at 46-57 nn.1-2, 6 (same).
3. See, e.g., Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 46, 49 (1991) (discussing prosecutors' obligation to "do justice"); see also sources cited id. at 46-57 nn.1-2, 6 (same).
4. For discussions of some aspects of the debate, see, for example, DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 202-05 (1988) (discussing the differences between criminal defense and civil lawyers with regard to confidentiality); Murray L. Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. RES. J. 543, 548-50 (identifying the criminal defense lawyer as the "archetype of the advocate in the adversary system" and distinguishing civil lawyers); Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 166-67 (1996) (analyzing and questioning the assumptions underlying the civil-criminal distinction).
5. For discussions of some aspects of the debate, see, for example, DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 202-05 (1988) (discussing the differences between criminal defense and civil lawyers with regard to confidentiality); Murray L. Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. RES. J. 543, 548-50 (identifying the criminal defense lawyer as the "archetype of the advocate in the adversary system" and distinguishing civil lawyers); Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 166-67 (1996) (analyzing and questioning the assumptions underlying the civil-criminal distinction).
6. For discussions of some aspects of the debate, see, for example, DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 202-05 (1988) (discussing the differences between criminal defense and civil lawyers with regard to confidentiality); Murray L. Schwartz, The Zeal of the Civil Advocate, 1983 AM. B. FOUND. RES. J. 543, 548-50 (identifying the criminal defense lawyer as the "archetype of the advocate in the adversary system" and distinguishing civil lawyers); Fred C. Zacharias, The Civil-Criminal Distinction in Professional Responsibility, 7 J. CONTEMP. LEGAL ISSUES 165, 166-67 (1996) (analyzing and questioning the assumptions underlying the civil-criminal distinction).
7. See, e.g., Jay Sterling Silver, Professionalism and the Hidden Assault on the Adversarial System, 55 OHIO ST. L.J. 855, 886-87 (1994) (arguing that ethicists should distinguish criminal and civil contexts for purposes of determining the appropriate level of partisanship); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 12 (1975) (arguing that the special needs of criminal defendants justify a specially aggressive approach, or amoral role, by criminal defense lawyers only); Ellen Yaroshefsky, Balancing Victim's Rights and Vigorous Advocacy for the Defendant, 1989 ANN. SURV. AM. L. 135, 137 (discussing the special role of criminal defense counsel).
8. See, e.g., Jay Sterling Silver, Professionalism and the Hidden Assault on the Adversarial System, 55 OHIO ST. L.J. 855, 886-87 (1994) (arguing that ethicists should distinguish criminal and civil contexts for purposes of determining the appropriate level of partisanship); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 12 (1975) (arguing that the special needs of criminal defendants justify a specially aggressive approach, or amoral role, by criminal defense lawyers only); Ellen Yaroshefsky, Balancing Victim's Rights and Vigorous Advocacy for the Defendant, 1989 ANN. SURV. AM. L. 135, 137 (discussing the special role of criminal defense counsel).
9. See, e.g., Jay Sterling Silver, Professionalism and the Hidden Assault on the Adversarial System, 55 OHIO ST. L.J. 855, 886-87 (1994) (arguing that ethicists should distinguish criminal and civil contexts for purposes of determining the appropriate level of partisanship); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1, 12 (1975) (arguing that the special needs of criminal defendants justify a specially aggressive approach, or amoral role, by criminal defense lawyers only); Ellen Yaroshefsky, Balancing Victim's Rights and Vigorous Advocacy for the Defendant, 1989 ANN. SURV. AM. L. 135, 137 (discussing the special role of criminal defense counsel).
10. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 45-46 (1975) (advocating extreme partisanship in both civil and criminal representation); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 614 (arguing that notions of client autonomy militate in favor of partisan lawyering in both civil and criminal contexts); cf. William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703, 1707-08 (1993) (questioning assumption that criminal defense attorneys are unique).
11. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 45-46 (1975) (advocating extreme partisanship in both civil and criminal representation); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 614 (arguing that notions of client autonomy militate in favor of partisan lawyering in both civil and criminal contexts); cf. William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703, 1707-08 (1993) (questioning assumption that criminal defense attorneys are unique).
12. See MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM 45-46 (1975) (advocating extreme partisanship in both civil and criminal representation); Stephen L. Pepper, The Lawyer's Amoral Ethical Role: A Defense, a Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613, 614 (arguing that notions of client autonomy militate in favor of partisan lawyering in both civil and criminal contexts); cf. William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703, 1707-08 (1993) (questioning assumption that criminal defense attorneys are unique).
13. See, e.g., Donald T. Weckstein, Comment, The Civil Advocate and the Multifaceted Functions of Dispute Settlement - Some Domestic and Cross-Cultural Perspectives, 1983 AM. B. FOUND. RES. J. 577, 579-82 (arguing that identifying objective factors that distinguish the role of criminal defense attorneys is difficult because no bright line differentiates the functions of criminal proceedings from civil proceedings, but agreeing that making the distinction may serve symbolic purposes relating to the treatment of criminal defendants in our society).
14. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
15. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
16. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
17. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
18. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
19. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
20. See, e.g., Murray L. Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (assuming arguendo that trial advocates and other lawyers are different, while arguing for individual moral accountability for lawyer actions outside the litigation arena); Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 356-57 (1989) (assuming arguendo the difference between criminal and civil representation for purposes of analyzing attorney-client confidentiality rules). The few scholars who have argued specifically that civil representation calls for a less adversarial posture than criminal defense work rarely have specified what variations in lawyers' roles would require. At most, they have argued that civil lawyers should be less "adversarial," less "aggressive," and more considerate of third-party interests than criminal defense counsel. See, e.g., Schwartz, supra note 3, at 545 (arguing for accountability in negotiations or counselling situations); Zacharias, supra note 3, at 167-69 (discussing what superaggressiveness entails); see also sources cited in Schwartz, supra note 3, at 545 n.11. Concomitantly, proponents of aggressive criminal defense practice typically have emphasized the values of "dignity," "autonomy," and "loyalty," but have not explained how civil lawyers should calculate and incorporate these values. See, e.g., Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1065-89 (1976) (emphasizing client's need for loyalty as justifying partisanship in criminal defense); Jay Sterling Silver, Equality of Arms and the Adversarial Process: A New Constitutional Right, 1990 WIS. L. REV. 1007, 1010-11 (relying on the paradigm of the unsophisticated defendant as justifying a need for lawyer partisanship to help the client make decisions and withstand the process).
21. The minor exceptions include specific references in some codes to special rights of criminal defendants, to fee arrangements in criminal cases, and to what criminal defense lawyers may say to the press. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(a) (1995) ("In a criminal case, the lawyer shall abide by the client's decision . . . as to a plea to be entered, whether to waive jury trial and whether the client will testify."); id. Rule 1.5(d)(2) (forbidding contingent fee arrangements in criminal cases); id. Rule 3.6(b)(7) (special provisions relating to publicity in criminal cases).
22. The minor exceptions include specific references in some codes to special rights of criminal defendants, to fee arrangements in criminal cases, and to what criminal defense lawyers may say to the press. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(a) (1995) ("In a criminal case, the lawyer shall abide by the client's decision . . . as to a plea to be entered, whether to waive jury trial and whether the client will testify."); id. Rule 1.5(d)(2) (forbidding contingent fee arrangements in criminal cases); id. Rule 3.6(b)(7) (special provisions relating to publicity in criminal cases).
23. The minor exceptions include specific references in some codes to special rights of criminal defendants, to fee arrangements in criminal cases, and to what criminal defense lawyers may say to the press. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(a) (1995) ("In a criminal case, the lawyer shall abide by the client's decision . . . as to a plea to be entered, whether to waive jury trial and whether the client will testify."); id. Rule 1.5(d)(2) (forbidding contingent fee arrangements in criminal cases); id. Rule 3.6(b)(7) (special provisions relating to publicity in criminal cases).
24. To avoid confusion, I refer to the primary lawyer under discussion in the female gender. For balance, I treat the other actors in the process (for example, clients and adversaries) as male.
25. The classic depiction of the defense lawyer's role is Lord Brougham's: The lawyer "knows but one person in all the world, and that person is his client." LUBAN, supra note 3, at 54. As I and others have pointed out, modern professional responsibility theory does not fully accept Brougham's extreme conception of lawyer partisanship, but does contemplate supreme loyalty by criminal defense attorneys. See Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, 6 GEO. J. LEGAL ETHICS 241, 241-42 (1992) (tracing the history of modern professional ethics theory); Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1314-27 (1995) (discussing partisanship in practice).
26. The classic depiction of the defense lawyer's role is Lord Brougham's: The lawyer "knows but one person in all the world, and that person is his client." LUBAN, supra note 3, at 54. As I and others have pointed out, modern professional responsibility theory does not fully accept Brougham's extreme conception of lawyer partisanship, but does contemplate supreme loyalty by criminal defense attorneys. See Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, 6 GEO. J. LEGAL ETHICS 241, 241-42 (1992) (tracing the history of modern professional ethics theory); Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1314-27 (1995) (discussing partisanship in practice).
27. The classic depiction of the defense lawyer's role is Lord Brougham's: The lawyer "knows but one person in all the world, and that person is his client." LUBAN, supra note 3, at 54. As I and others have pointed out, modern professional responsibility theory does not fully accept Brougham's extreme conception of lawyer partisanship, but does contemplate supreme loyalty by criminal defense attorneys. See Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, 6 GEO. J. LEGAL ETHICS 241, 241-42 (1992) (tracing the history of modern professional ethics theory); Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1314-27 (1995) (discussing partisanship in practice).
28. See American Academy of Matrimonial Lawyers, The Bounds of Advocacy: American Academy of Matrimonial Lawyers Standards of Conduct, 9 J. AM. ACAD. MATRIMONIAL LAW. 1, 3 (1992) (noting that "many matrimonial lawyers believe themselves obligated to consider the best interests of children, regardless of which family member they represent").
29. In Kaye, Scholer, the United States Office of Thrift Supervision espoused - and ultimately imposed upon a leading New York law firm - a theory that lawyers act as their clients' agents in providing information to regulatory agencies and therefore assume their clients' obligation to provide truthful and nonmisleading information. For fuller discussions of the Kaye, Scholer case, see the authorities cited in Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335, 368-69 nn.152-56 (1994).
30. In other words, as lawyers internalize an obligation to report client misconduct to federal regulators, they may feel more comfortable reporting on clients in other contexts as well. Yet maintaining the confidences of clients who have committed wrongdoing, and even the confidences of some who are considering committing wrongdoing, lies at the heart of the standard conception of ethical lawyer conduct. See, e.g., Zacharias, supra note 7, at 358-70 (discussing the systemic justifications for attorney-client confidentiality).
31. See sources cited infra note 96.
32. In Zacharias, supra note 3, at 172-78, I have suggested that even the civil-criminal distinction is too simplistic. Criminal representation has unique attributes. For example, the government's burden of proof is higher in criminal cases and the defendant need not participate in the truth-seeking process because of the constitutional privilege against self-incrimination. But the tasks that lawyers perform, the nature of their clients, and the potential loss to the clients are often the same as in civil litigation. To be accurate, one may need to make distinctions even within the category of criminal representation because general assumptions about the helplessness of clients or the balance of prosecutorial resources are not universally shared. Compare David Luban, Are Criminal Defenders Different?, 91 MICH. L. REV. 1729, 1731-36 (1993) (supporting the argument that criminal defendants, as a whole, suffer from a resource disadvantage), with Simon, supra note 5, at 1707-08 (questioning the claimed resource disadvantage of defendants). Similarly, lawyers perform many functions other than litigating, both in the criminal and civil contexts - including advising clients, negotiating, and mediating potential disputes.
33. In Zacharias, supra note 3, at 172-78, I have suggested that even the civil-criminal distinction is too simplistic. Criminal representation has unique attributes. For example, the government's burden of proof is higher in criminal cases and the defendant need not participate in the truth-seeking process because of the constitutional privilege against self-incrimination. But the tasks that lawyers perform, the nature of their clients, and the potential loss to the clients are often the same as in civil litigation. To be accurate, one may need to make distinctions even within the category of criminal representation because general assumptions about the helplessness of clients or the balance of prosecutorial resources are not universally shared. Compare David Luban, Are Criminal Defenders Different?, 91 MICH. L. REV. 1729, 1731-36 (1993) (supporting the argument that criminal defendants, as a whole, suffer from a resource disadvantage), with Simon, supra note 5, at 1707-08 (questioning the claimed resource disadvantage of defendants). Similarly, lawyers perform many functions other than litigating, both in the criminal and civil contexts - including advising clients, negotiating, and mediating potential disputes.
34. In Zacharias, supra note 3, at 172-78, I have suggested that even the civil-criminal distinction is too simplistic. Criminal representation has unique attributes. For example, the government's burden of proof is higher in criminal cases and the defendant need not participate in the truth-seeking process because of the constitutional privilege against self-incrimination. But the tasks that lawyers perform, the nature of their clients, and the potential loss to the clients are often the same as in civil litigation. To be accurate, one may need to make distinctions even within the category of criminal representation because general assumptions about the helplessness of clients or the balance of prosecutorial resources are not universally shared. Compare David Luban, Are Criminal Defenders Different?, 91 MICH. L. REV. 1729, 1731-36 (1993) (supporting the argument that criminal defendants, as a whole, suffer from a resource disadvantage), with Simon, supra note 5, at 1707-08 (questioning the claimed resource disadvantage of defendants). Similarly, lawyers perform many functions other than litigating, both in the criminal and civil contexts - including advising clients, negotiating, and mediating potential disputes.
35. Although little has been written about the ethical issues, increasing attention has been paid to differentiating among lawyers for purposes of "specialization" certification. See, e.g, MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.4(c) (1995) (discussing and limiting claims by lawyers that they are specialists). As more lawyers hold themselves out as specialists and states attribute significance to claims of special expertise, states of necessity will begin regulating specialists differently than other lawyers. See Zacharias, supra note 12, at 363 n.129 (discussing variations in state rules regarding certification of specialists). This regulation may take many forms, including increased training, experience, and continuing legal education requirements as well as specialized bar exams. When the line between specialists and generalists becomes more clearly defined, one can expect bars to address the atypical practical and ethical issues the specialists face. I thus hazard to suggest that some reconceptualization of professional responsibility standards along the lines discussed in this paper is inevitable, if only as a response to other developments in the profession. Cf. David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145, 1217 (1993) (arguing that changes to the legal profession wrought by specialization compels a reexamination of our ability to achieve professional goals).
36. Although little has been written about the ethical issues, increasing attention has been paid to differentiating among lawyers for purposes of "specialization" certification. See, e.g, MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.4(c) (1995) (discussing and limiting claims by lawyers that they are specialists). As more lawyers hold themselves out as specialists and states attribute significance to claims of special expertise, states of necessity will begin regulating specialists differently than other lawyers. See Zacharias, supra note 12, at 363 n.129 (discussing variations in state rules regarding certification of specialists). This regulation may take many forms, including increased training, experience, and continuing legal education requirements as well as specialized bar exams. When the line between specialists and generalists becomes more clearly defined, one can expect bars to address the atypical practical and ethical issues the specialists face. I thus hazard to suggest that some reconceptualization of professional responsibility standards along the lines discussed in this paper is inevitable, if only as a response to other developments in the profession. Cf. David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145, 1217 (1993) (arguing that changes to the legal profession wrought by specialization compels a reexamination of our ability to achieve professional goals).
37. Although little has been written about the ethical issues, increasing attention has been paid to differentiating among lawyers for purposes of "specialization" certification. See, e.g, MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.4(c) (1995) (discussing and limiting claims by lawyers that they are specialists). As more lawyers hold themselves out as specialists and states attribute significance to claims of special expertise, states of necessity will begin regulating specialists differently than other lawyers. See Zacharias, supra note 12, at 363 n.129 (discussing variations in state rules regarding certification of specialists). This regulation may take many forms, including increased training, experience, and continuing legal education requirements as well as specialized bar exams. When the line between specialists and generalists becomes more clearly defined, one can expect bars to address the atypical practical and ethical issues the specialists face. I thus hazard to suggest that some reconceptualization of professional responsibility standards along the lines discussed in this paper is inevitable, if only as a response to other developments in the profession. Cf. David B. Wilkins, Making Context Count: Regulating Lawyers After Kaye, Scholer, 66 S. CAL. L. REV. 1145, 1217 (1993) (arguing that changes to the legal profession wrought by specialization compels a reexamination of our ability to achieve professional goals).
38. Consistent with traditional legal ethics theory, I speak of the lawyer's client-centered and society-oriented goals as the only legitimate ones. I do not consider whether and when lawyer self-interest should be elevated to equal status. Cf. Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229, 1263 (1995) (arguing that the practice of law and its regulation will increasingly be conceptualized as a business).
39. I intend the term "goal" to refer to the purpose of the representation, rather than the justification for a particular type of action by a lawyer. Thus, "winning" or "helping clients achieve particular objectives" might be goals, while enhancing client dignity or autonomy are more likely to be reasons why lawyers are willing to seek these objectives. The dividing line may not always be clear. For example, a lawyer might engage in partisan representation on the theory that her goal is to enable clients to exercise autonomy in the legal process. The legal system might contemplate autonomous participants, yet at the same time not wish to honor autonomy at all costs; for example, perhaps participants should not have autonomy to win by bribing jurors. Ethics theory (e.g., codes) would have to say either that the lawyer's desire to enhance client autonomy is a subsidiary goal to the primary goal of achieving the client's objective or that enhancing client autonomy is a reason for lawyers to help clients in achieving the goal of making lawful decisions that are likely to achieve good results.
40. See, e.g., STEPHAN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 4 (1984) (noting argument that zealous advocacy highlights each side's best proof for the decisionmaker); Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469, 1469-70 (1969) (noting argument that aggressive criminal defense furthers the truth-seeking process); Lon L. Fuller, The Adversary System, in TALKS ON AMERICAN LAW 34, 35-36 (Harold J. Berman ed., rev. ed. 1971) (discussing lawyer's role as an advocate in the adversary process); cf. David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83, 93-97 (David Luban ed., 1983) (debunking the notion that partisan advocacy results in accurate truth seeking).
41. See, e.g., STEPHAN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 4 (1984) (noting argument that zealous advocacy highlights each side's best proof for the decisionmaker); Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469, 1469-70 (1969) (noting argument that aggressive criminal defense furthers the truth-seeking process); Lon L. Fuller, The Adversary System, in TALKS ON AMERICAN LAW 34, 35-36 (Harold J. Berman ed., rev. ed. 1971) (discussing lawyer's role as an advocate in the adversary process); cf. David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83, 93-97 (David Luban ed., 1983) (debunking the notion that partisan advocacy results in accurate truth seeking).
42. See, e.g., STEPHAN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 4 (1984) (noting argument that zealous advocacy highlights each side's best proof for the decisionmaker); Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469, 1469-70 (1969) (noting argument that aggressive criminal defense furthers the truth-seeking process); Lon L. Fuller, The Adversary System, in TALKS ON AMERICAN LAW 34, 35-36 (Harold J. Berman ed., rev. ed. 1971) (discussing lawyer's role as an advocate in the adversary process); cf. David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83, 93-97 (David Luban ed., 1983) (debunking the notion that partisan advocacy results in accurate truth seeking).
43. See, e.g., STEPHAN LANDSMAN, THE ADVERSARY SYSTEM: A DESCRIPTION AND DEFENSE 4 (1984) (noting argument that zealous advocacy highlights each side's best proof for the decisionmaker); Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469, 1469-70 (1969) (noting argument that aggressive criminal defense furthers the truth-seeking process); Lon L. Fuller, The Adversary System, in TALKS ON AMERICAN LAW 34, 35-36 (Harold J. Berman ed., rev. ed. 1971) (discussing lawyer's role as an advocate in the adversary process); cf. David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83, 93-97 (David Luban ed., 1983) (debunking the notion that partisan advocacy results in accurate truth seeking).
44. See, e.g., Addison M. Bowman, Standards of Conduct for Prosecution and Defense Personnel: An Attorney's Viewpoint, 5 AM. CRIM. L.Q. 28, 30 (1966) (describing lawyer's function in terms of testing the prosecution's case); Harry I. Subin, Is This Lie Necessary? Further Reflections on the Right to Present a False Defense, 1 GEO. J. LEGAL ETHICS 689, 697-702 (1988) (identifying the function of a defense attorney as challenging that the government has carried its burden).
45. See, e.g., Addison M. Bowman, Standards of Conduct for Prosecution and Defense Personnel: An Attorney's Viewpoint, 5 AM. CRIM. L.Q. 28, 30 (1966) (describing lawyer's function in terms of testing the prosecution's case); Harry I. Subin, Is This Lie Necessary? Further Reflections on the Right to Present a False Defense, 1 GEO. J. LEGAL ETHICS 689, 697-702 (1988) (identifying the function of a defense attorney as challenging that the government has carried its burden).
46. See, e.g., John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293, 298 (1980) [hereinafter Mitchell, Ethics] (discussing function of criminal defense counsel of "making the screens work"); John B. Mitchell, Reasonable Doubts Are Where You Find Them: A Response to Professor Subin's Position on the Criminal Lawyer's "Different Mission," 1 GEO. J. LEGAL ETHICS 339, 342, 347 (1987) (positing that criminal defense attorney's principal function is to ensure "legitimate use of the prosecutor's power" and to help serve a "screening" function); Harry I. Subin, The Criminal Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case, 1 GEO. J. LEGAL ETHICS 125, 149 (1987) (characterizing criminal defense lawyer as a monitor of the prosecution system).
47. See, e.g., John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293, 298 (1980) [hereinafter Mitchell, Ethics] (discussing function of criminal defense counsel of "making the screens work"); John B. Mitchell, Reasonable Doubts Are Where You Find Them: A Response to Professor Subin's Position on the Criminal Lawyer's "Different Mission," 1 GEO. J. LEGAL ETHICS 339, 342, 347 (1987) (positing that criminal defense attorney's principal function is to ensure "legitimate use of the prosecutor's power" and to help serve a "screening" function); Harry I. Subin, The Criminal Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case, 1 GEO. J. LEGAL ETHICS 125, 149 (1987) (characterizing criminal defense lawyer as a monitor of the prosecution system).
48. See, e.g., John B. Mitchell, The Ethics of the Criminal Defense Attorney - New Answers to Old Questions, 32 STAN. L. REV. 293, 298 (1980) [hereinafter Mitchell, Ethics] (discussing function of criminal defense counsel of "making the screens work"); John B. Mitchell, Reasonable Doubts Are Where You Find Them: A Response to Professor Subin's Position on the Criminal Lawyer's "Different Mission," 1 GEO. J. LEGAL ETHICS 339, 342, 347 (1987) (positing that criminal defense attorney's principal function is to ensure "legitimate use of the prosecutor's power" and to help serve a "screening" function); Harry I. Subin, The Criminal Lawyer's "Different Mission": Reflections on the "Right" to Present a False Case, 1 GEO. J. LEGAL ETHICS 125, 149 (1987) (characterizing criminal defense lawyer as a monitor of the prosecution system).
49. This light may, in any particular case, accentuate the defendant's innocence, the government's failure to carry its burden of proof, or government misconduct.
50. When this occurs, the lawyer's partisanship only indirectly serves the goals of producing truth, screening prosecutions, or monitoring government conduct. A plea bargain may simply be a matter of convenience for the government. In some instances, however, favorable bargains stem indirectly from the government's realization that there is a deficiency in its case.
51. For example, in satisfying regulatory reporting or disclosure requirements.
52. For example, in obeying the letter of tax requirements while minimizing taxes.
53. For example, in avoiding regulatory requirements. See, e.g., Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1554-87, 1598-1609 (1995) (discussing approaches lawyers might take in the representation of clients who seek advice in contemplation of breaking the law); Pepper, supra note 5, at 627-28 (discussing the hypothetical of a lawyer who advises a client of the requirements of an environmental regulation, and adds that compliance may be expensive and that the regulation is hardly ever enforced).
54. For example, in avoiding regulatory requirements. See, e.g., Stephen L. Pepper, Counseling at the Limits of the Law: An Exercise in the Jurisprudence and Ethics of Lawyering, 104 YALE L.J. 1545, 1554-87, 1598-1609 (1995) (discussing approaches lawyers might take in the representation of clients who seek advice in contemplation of breaking the law); Pepper, supra note 5, at 627-28 (discussing the hypothetical of a lawyer who advises a client of the requirements of an environmental regulation, and adds that compliance may be expensive and that the regulation is hardly ever enforced).
55. That is, by acting aggressively within the adversary system and thereby participating in a clash of information.
56. The negotiating process circumvents the entire adjudication process. In other words, neither the truth nor the government's conduct is ever tested by any process, adversarial or otherwise. See, e.g., Zacharias, supra note 10, at 1334 n.99 (discussing the effect on truth of the absence of an arbiter in the negotiation process).
57. For example, society's interests in compliance with the regulatory requirements or the interests of third-party beneficiaries.
58. As discussed below, there are other possible alternative goals one could identify. Figure 1 simply sets out a few examples for the purpose of providing the reader with perspective.
59. The Model Rules of Professional Conduct ("Model Rules") require lawyers to keep clients "reasonably informed" and to explain matters "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.4 (1995). The Model Code of Professional Responsibility ("Model Code") has no direct counterpart to the Model Rules communication rule, but does advise that a lawyer should "exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations" and should "fully and promptly inform his client of material developments . " MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-8, 9-2 (1979).
60. The Model Rules of Professional Conduct ("Model Rules") require lawyers to keep clients "reasonably informed" and to explain matters "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.4 (1995). The Model Code of Professional Responsibility ("Model Code") has no direct counterpart to the Model Rules communication rule, but does advise that a lawyer should "exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations" and should "fully and promptly inform his client of material developments . " MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-8, 9-2 (1979).
61. The Model Rules of Professional Conduct ("Model Rules") require lawyers to keep clients "reasonably informed" and to explain matters "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.4 (1995). The Model Code of Professional Responsibility ("Model Code") has no direct counterpart to the Model Rules communication rule, but does advise that a lawyer should "exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations" and should "fully and promptly inform his client of material developments . " MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-8, 9-2 (1979).
62. The Model Rules of Professional Conduct ("Model Rules") require lawyers to keep clients "reasonably informed" and to explain matters "to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.4 (1995). The Model Code of Professional Responsibility ("Model Code") has no direct counterpart to the Model Rules communication rule, but does advise that a lawyer should "exert his best efforts to insure that decisions of his client are made only after the client has been informed of relevant considerations" and should "fully and promptly inform his client of material developments . " MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-8, 9-2 (1979).
63. See, e.g., Zacharias, supra note 7, at 386 (discussing an empirical study suggesting that narrow, well-defined exceptions to attorney-client confidentiality rules would not significantly deter clients from confiding in their lawyers); cf. Zacharias, supra note 10, at 1357-66 (arguing for the communication of limits on partisanship to clients at the outset of the representation and suggesting that such communications would make limits more palatable to clients).
64. See, e.g., Zacharias, supra note 7, at 386 (discussing an empirical study suggesting that narrow, well-defined exceptions to attorney-client confidentiality rules would not significantly deter clients from confiding in their lawyers); cf. Zacharias, supra note 10, at 1357-66 (arguing for the communication of limits on partisanship to clients at the outset of the representation and suggesting that such communications would make limits more palatable to clients).
65. This perception is confirmed by an empirical study in upstate New York which showed that, despite the existence of strict attorney-client confidentiality rules, clients believed attorneys would disclose information if a moral imperative dictated disclosure. See Zacharias, supra note 7, at 394-96.
66. See, e.g., Freedman, supra note 19, at 1473 (discussing lawyers as criminal clients' one ally).
67. See Jay Sterling Silver, Truth, Justice, and the American Way: The Case Against the Client Perjury Rules, 47 VAND. L. REV. 339, 363-64 (1994) (describing criminal clients' perceptions of their lawyers).
68. For a fuller analysis of the justifications for partisanship in defense representation, see, for example, FREEDMAN, supra note 5, at 2-10; Zacharias, supra note 3, at 169-71 and sources cited therein.
69. For a fuller analysis of the justifications for partisanship in defense representation, see, for example, FREEDMAN, supra note 5, at 2-10; Zacharias, supra note 3, at 169-71 and sources cited therein.
70. Preserving and pressing appeals might be considered another distinct aspect of criminal practice deserving of separate analysis. Cf. J. Michael Medina, Ethical Concerns in Civil Appellate Advocacy, 43 Sw. L.J. 677, 708 (1989) (arguing that appellate attorneys have a unique duty of candor to the court).
71. Coupled with each of these is communicating with the client and giving the client advice. I do not treat client communication here as a separate subcategory because I presume that the lawyer's goal in communicating with the client always consists of helping the client make the best and most informed decision given all the tactical and moral considerations. Even this assumption, however, may overgeneralize. See, e.g., Pepper, supra note 26, at 1572-73 (analyzing whether lawyers sometimes are entitled or obligated to withhold information from clients out of deference to nonclient interests).
72. The Model Rules and Model Code apply similar standards to criminal and civil lawyers. Under the Model Rules, a lawyer may assert or controvert issues if "there is a basis for doing so that is not frivolous." MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 (1995); see also MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-102(A)(1) (1979) (forbidding asserting positions "merely to harass or maliciously injure another"). Apparently, however, the Model Rules nonfrivolousness requirement is limited in criminal cases to the extent necessary to allow the lawyer to "defend the proceeding as to require that every element of the case be established. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1.
73. The Model Rules and Model Code apply similar standards to criminal and civil lawyers. Under the Model Rules, a lawyer may assert or controvert issues if "there is a basis for doing so that is not frivolous." MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 (1995); see also MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-102(A)(1) (1979) (forbidding asserting positions "merely to harass or maliciously injure another"). Apparently, however, the Model Rules nonfrivolousness requirement is limited in criminal cases to the extent necessary to allow the lawyer to "defend the proceeding as to require that every element of the case be established. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1.
74. The Model Rules and Model Code apply similar standards to criminal and civil lawyers. Under the Model Rules, a lawyer may assert or controvert issues if "there is a basis for doing so that is not frivolous." MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1 (1995); see also MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-102(A)(1) (1979) (forbidding asserting positions "merely to harass or maliciously injure another"). Apparently, however, the Model Rules nonfrivolousness requirement is limited in criminal cases to the extent necessary to allow the lawyer to "defend the proceeding as to require that every element of the case be established. " MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.1.
75. Because Rule 11 appears only in the civil procedure rules, it does not apply to criminal cases. The Federal Rules of Criminal Procedure have no analogue. See generally FED. R. CRIM. P. The same is true in most states that have versions of Rule 11. See, e.g., MINN. R. CIV. P. 11; TEX. R. CIV. P. 13.
76. For example, may a defense lawyer allege in a sparsely supported pleading that the police officer did not see anything that gave him probable cause to search? Practitioners in jurisdictions with limited criminal discovery tend to make such motions in order to have the opportunity to put the arresting officer on the stand, probe his testimony, and lock in his version of the facts in anticipation of cross-examination at trial.
77. See, e.g., Mitchell, Ethics, supra note 21, at 333-36 (discussing monitoring and screening function of aggressive criminal defense).
78. Pretrial motions to suppress are, for example, the vehicles through which defendants challenge unconstitutional searches and seizures, interrogations, and detentions.
79. See Zacharias, supra note 10, at 1331-40 (discussing misrepresentations and lying by lawyers). For example, a client ought not expect a lawyer to argue falsely that the police officers saw nothing relevant to any crime in the location they searched.
80. The extent to which a lawyer should encourage a client to give her false, but helpful, information is a separate issue that is beyond the scope of this Article.
81. It is important to recognize that, in many jurisdictions, the unavailability of significant discovery in criminal cases distinguishes criminal from civil practitioners. Civil attorneys are in a position to check on their clients' stories or to fill in gaps in their knowledge through civil discovery. Criminal defense attorneys may need to make litigation choices based on faith in their clients' assertions or by giving themselves the benefit of the doubt when a fact is unknown.
82. Before the adoption of Rule 11 of the Federal Rules of Civil Procedure and its state counterparts, contentious pleading based on "lack of information and belief" was common in civil litigation even when lawyers had some information that would have enabled them to respond more definitively. Compare FED. R. CIV. P. 11 (1976) (allowing an attorney to file pleadings when "to the best of his knowledge, information, and belief there is good ground to support it"), with FED. R. CIV. P. 11(b) (adding an objective "reasonable inquiry" requirement); see generally Foster v. Michelin Tire Corp., 108 F.R.D. 412, 415 (C.D. Ill. 1985) (noting that before the 1983 amendments to Rule 11 imposing an objective standard, there was " ' "no position - no matter how absurd - of which an advocate could not convince himself" ' " and could therefore use (quoting SFM Corp. v. Sunstrand Corp., 102 F.R.D. 555, 557 (N.D. Ill. 1984) (quoting Wells v. Oppenheimer & Co., 101 F.R.D. 358, 359 n.3 (S.D.N.Y. 1984)))); John L. Mulligan, Rule 11: Should Sanctions Be Imposed Against the Government in Federal Tax Cases?, 5 GEO. J. LEGAL ETHICS 613, 628 (1992) (arguing that the Internal Revenue Service could base a general denial upon "information and belief" in order to give itself more time to review its own file).
83. See, e.g., Reed Elizabeth Loder, Moral Truthseeking and the Virtuous Negotiator, 8 GEO. J. LEGAL ETHICS 45, 50-57, 93-101 (1994) (attempting to offer a moral theory for appropriate conduct in negotiating); Alvin B. Rubin, A Causerie on Lawyers' Ethics in Negotiation, 35 LA. L. REV. 577, 589 (1975) (arguing for an ethics standard requiring negotiating lawyers to "act honestly and in good faith"); Zacharias, supra note 10, at 1334-36 (discussing argument that lawyers must seek fair negotiation results); cf. James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 AM. B. FOUND. RES. J. 926, 926-28 (1980) (questioning rules that would require negotiating lawyers to seek fair results).
84. See, e.g., Reed Elizabeth Loder, Moral Truthseeking and the Virtuous Negotiator, 8 GEO. J. LEGAL ETHICS 45, 50-57, 93-101 (1994) (attempting to offer a moral theory for appropriate conduct in negotiating); Alvin B. Rubin, A Causerie on Lawyers' Ethics in Negotiation, 35 LA. L. REV. 577, 589 (1975) (arguing for an ethics standard requiring negotiating lawyers to "act honestly and in good faith"); Zacharias, supra note 10, at 1334-36 (discussing argument that lawyers must seek fair negotiation results); cf. James J. White, Machiavelli and the Bar: Ethical Limitations on Lying in Negotiation, 1980 AM. B. FOUND. RES. J. 926, 926-28 (1980) (questioning rules that would require negotiating lawyers to seek fair results).
85. See, e.g., Reed Elizabeth Loder, Moral Truthseeking and the Virtuous Negotiator, 8 GEO. J. LEGAL ETHICS 45, 50-57, 93-101 (1994) (attempting to offer a moral theory for appropriate conduct in negotiating); Alvin B. Rubin, A Causerie on Lawyers' Ethics in Negotiation, 35 LA. L. REV. 577, 589 (1975) (arguing for an ethics standard requiring negotiating lawyers to "act honestly and in good faith"); Zacharias, supra note 10, at 1334-36
86. Of course, within limits, there are compromise solutions in some criminal cases as well. The charges may include lesser included offenses that jurors can use to compromise. In addition, the negotiating lawyers need to assess not only the likelihood of conviction, but also the likely severity of the sentence. It is important to note, however, that for many defendants - particularly first-time defendants - the same degree of stigma may attach to any conviction, regardless of the level of crime charged or the severity of sentence.
87. Indeed, the system also contemplates giving factually and legally innocent defendants incentives to plead guilty. See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1967 (1992) (arguing, implicitly, that innocent defendants do not receive sufficient compensation for pleading guilty); see also Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979, 1982 (1992) (noting Scott and Stuntz's assumption that it is appropriate for innocent defendants to get and accept plea offers). I take no position in this Article on whether the plea bargaining system makes sense or is a good process. This Article's analysis takes the legal system as it exists.
88. Indeed, the system also contemplates giving factually and legally innocent defendants incentives to plead guilty. See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1967 (1992) (arguing, implicitly, that innocent defendants do not receive sufficient compensation for pleading guilty); see also Stephen J. Schulhofer, Plea Bargaining as Disaster, 101 YALE L.J. 1979, 1982 (1992) (noting Scott and Stuntz's assumption that it is appropriate for innocent defendants to get and accept plea offers). I take no position in this Article on whether the plea bargaining system makes sense or is a good process. This Article's analysis takes the legal system as it exists.
89. See, e.g., Rubin, supra note 48, at 582-83 (discussing lawyer's obligations in negotiations when adversary "is assuming a state of affairs that is incorrect").
90. To the extent that a prosecutor is missing essential facts, that lack arguably should inure to defendant's benefit because of the heavy proof burden that the presumption of innocence places on the prosecution.
91. The prosecutor may feel the need to bargain in order to deploy resources in other cases, but that is the prosecutor's choice. When a prosecutor wishes, he can almost always devote sufficient resources to prosecute fully (or at least adequately) any particular case.
92. Let us assume for purposes of this discussion that the lawyer in question has decided that misrepresenting the facts or law will help her client's bargaining position. Of course, in practice, this conclusion may not always be true, particularly if the adversary is likely to discover the misrepresentation.
93. In recent years, some states have adopted discovery procedures that allow criminal defendants access to significant information and the right to use some of the standard civil discovery tools. See, e.g., TEX. CRIM. P. CODE ANN. art. 39.02 (West 1979) (authorizing defendants to take depositions of witnesses); id. art. 39.06 (providing for and regulating written interrogatories by criminal defendants); FLA. R. CRIM. P. 3.220(d), (h) (allowing criminal defend ants to take discovery depositions automatically upon notice to the deponent and prosecution, but requiring some reciprocal discovery); IOWA R. CRIM. P. 12(1) (allowing depositions on nearly same basis as in civil actions); VT. R. CRIM. P. 15(a) (allowing depositions on demand in felony cases). 56 As I have discussed elsewhere, one of the functions of ethics regulation is to facilitate communications among lawyers, so that they can trust - or at least know when to trust - the adversary's words. See Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223, 231 & n.27, 266-67 (1993); see also Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1249-50 (1991) (noting the bar's emphasis on fraternal relations among lawyers); Geoffrey C. Hazard, Jr., The Lawyer's Obligation to Be Trustworthy When Dealing with Opposing Parties, 33 S.C. L. REV. 181, 182-83 (1981) (discussing the role that "conventions governing social intercourse" play in fixing ethics norms).
94. In recent years, some states have adopted discovery procedures that allow criminal defendants access to significant information and the right to use some of the standard civil discovery tools. See, e.g., TEX. CRIM. P. CODE ANN. art. 39.02 (West 1979) (authorizing defendants to take depositions of witnesses); id. art. 39.06 (providing for and regulating written interrogatories by criminal defendants); FLA. R. CRIM. P. 3.220(d), (h) (allowing criminal defend ants to take discovery depositions automatically upon notice to the deponent and prosecution, but requiring some reciprocal discovery); IOWA R. CRIM. P. 12(1) (allowing depositions on nearly same basis as in civil actions); VT. R. CRIM. P. 15(a) (allowing depositions on demand in felony cases). 56 As I have discussed elsewhere, one of the functions of ethics regulation is to facilitate communications among lawyers, so that they can trust - or at least know when to trust - the adversary's words. See Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223, 231 & n.27, 266-67 (1993); see also Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1249-50 (1991) (noting the bar's emphasis on fraternal relations among lawyers); Geoffrey C. Hazard, Jr., The Lawyer's Obligation to Be Trustworthy When Dealing with Opposing Parties, 33 S.C. L. REV. 181, 182-83 (1981) (discussing the role that "conventions governing social intercourse" play in fixing ethics norms).
95. In recent years, some states have adopted discovery procedures that allow criminal defendants access to significant information and the right to use some of the standard civil discovery tools. See, e.g., TEX. CRIM. P. CODE ANN. art. 39.02 (West 1979) (authorizing defendants to take depositions of witnesses); id. art. 39.06 (providing for and regulating written interrogatories by criminal defendants); FLA. R. CRIM. P. 3.220(d), (h) (allowing criminal defend ants to take discovery depositions automatically upon notice to the deponent and prosecution, but requiring some reciprocal discovery); IOWA R. CRIM. P. 12(1) (allowing depositions on nearly same basis as in civil actions); VT. R. CRIM. P. 15(a) (allowing depositions on demand in felony cases). 56 As I have discussed elsewhere, one of the functions of ethics regulation is to facilitate communications among lawyers, so that they can trust - or at least know when to trust - the adversary's words. See Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223, 231 & n.27, 266-67 (1993); see also Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1249-50 (1991) (noting the bar's emphasis on fraternal relations among lawyers); Geoffrey C. Hazard, Jr., The Lawyer's Obligation to Be Trustworthy When Dealing with Opposing Parties, 33 S.C. L. REV. 181, 182-83 (1981) (discussing the role that "conventions governing social intercourse" play in fixing ethics norms).
96. See Mempa v. Rhay, 389 U.S. 128, 133-34 (1967) (recognizing that sentencing is a "critical stage" of a criminal prosecution).
97. One exception may be stage II capital punishment proceedings, at which a jury makes the sentencing decision after an adversarial presentation of the facts and arguments. In the federal system, the Federal Sentencing Guidelines ("Guidelines") have changed the situation somewhat. Although the probation department's presentence report may take a position on facts that are disputed, the parties are free to present evidence on these facts. See U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a) (1995). The Guidelines require judges to make findings on facts necessary to determine the Guideline sentence. See FED. R. CRIM. P. 32(c)(1); U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(b).
98. One exception may be stage II capital punishment proceedings, at which a jury makes the sentencing decision after an adversarial presentation of the facts and arguments. In the federal system, the Federal Sentencing Guidelines ("Guidelines") have changed the situation somewhat. Although the probation department's presentence report may take a position on facts that are disputed, the parties are free to present evidence on these facts. See U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(a) (1995). The Guidelines require judges to make findings on facts necessary to determine the Guideline sentence. See FED. R. CRIM. P. 32(c)(1); U.S. SENTENCING GUIDELINES MANUAL § 6A1.3(b).
99. I do not use the term "inquisitorial" in a pejorative sense. I merely mean that presentence reports are directed by and subject to the control of the fact finder. Although such reports can be questioned, they typically are not subject to adversarial testing.
100. Sentencing procedures vary from court to court. Typically, presentence reports provide a baseline assessment of the facts by a supposedly neutral probation officer. Judges may allow either side to present witnesses on pertinent issues, but ordinarily rely on the presentence report, together with counsels' proffers and arguments. Except in jurisdictions in which judges must follow sentencing guidelines, judges do not need to make explicit findings of fact to justify their sentencing decisions.
101. Compare, e.g., ABA Comm. on Professional Ethics, Formal Op. 287 (1953) (discussing a variety of situations in which criminal defense attorney knows the sentencing court is misinformed and holding that lawyer should not rectify the misunderstanding) with ABA Comm. on Ethics and Professional Responsibility, Formal Op. 353 (1987) (holding that the adoption of the Model Rules requires a different response in some of the hypothetical situations discussed in Formal Opinion 287).
102. Compare, e.g., ABA Comm. on Professional Ethics, Formal Op. 287 (1953) (discussing a variety of situations in which criminal defense attorney knows the sentencing court is misinformed and holding that lawyer should not rectify the misunderstanding) with ABA Comm. on Ethics and Professional Responsibility, Formal Op. 353 (1987) (holding that the adoption of the Model Rules requires a different response in some of the hypothetical situations discussed in Formal Opinion 287).
103. For example, until recently, California had no rule governing out-of-court statements by lawyers. In the aftermath of the O.J. Simpson trial, however, California adopted a publicity rule modeled after the ABA's Model Rules. See CALIFORNIA RULES OF PROFESSIONAL CONDUCT Rule 5-120 (1996); MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.6 (1995).
104. For example, until recently, California had no rule governing out-of-court statements by lawyers. In the aftermath of the O.J. Simpson trial, however, California adopted a publicity rule modeled after the ABA's Model Rules. See CALIFORNIA RULES OF PROFESSIONAL CONDUCT Rule 5-120 (1996); MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.6 (1995).
105. See Kevin Cole & Fred C. Zacharias, The Agony of Victory and the Ethics of Lawyer Speech, 69 S. CAL. L. REV. 1627, 1645-47 (1996) (analyzing, in detail, the obligation of lawyers to speak to the press on behalf of their clients); Zacharias, supra note 10, at 1339-40 (arguing that because speaking to the media is a voluntary aspect of the lawyer's role, her statements should be truthful).
106. See Kevin Cole & Fred C. Zacharias, The Agony of Victory and the Ethics of Lawyer Speech, 69 S. CAL. L. REV. 1627, 1645-47 (1996) (analyzing, in detail, the obligation of lawyers to speak to the press on behalf of their clients); Zacharias, supra note 10, at 1339-40 (arguing that because speaking to the media is a voluntary aspect of the lawyer's role, her statements should be truthful).
107. The constitutional cases on pretrial publicity suggest that there are limits on states' ability to curtail speech to the press, but the Court has acknowledged some state power to impose restrictions. See, e.g., Gentile v. State Bar, 501 U.S. 1030, 1074-76 (1991) (upholding gag orders and rules when lawyer speech poses a "substantial likelihood of material prejudice" to a fair trial); cf. id. at 1055-56 (Kennedy, J., joined by Marshall, Blackmun, & Stevens, JJ.) (arguing that speech of a criminal defense attorney should have heightened protection because criminal defendants generally have inadequate means of countering adverse publicity by the prosecution); Silver, supra note 7, at 1037-38 (arguing for an expansive constitutional right guaranteeing equality of procedural rights between defense and prosecution).
108. See Fred C. Zacharias, Rethinking Confidentiality II: Is Confidentiality Constitutional?, 75 IOWA L. REV. 601 (1990) (analyzing free speech rights of attorneys in the context of attorney-client confidentiality rules).
109. That is to say that the ethicists generally have found it easier - or more palatable - to draw bright-line rules defining criminal defense attorneys' roles, not that these lines necessarily are correct. See Zacharias, supra note 3 (analyzing the civil-criminal distinction).
110. See supra text accompanying notes 23-26.
111. See supra text accompanying notes 32-38.
112. For example, a lawyer should not be permitted to assume that a client would want to minimize his taxes when such minimization contravenes the letter or spirit of the law. The moral citizen may wish to pay his fair share of taxes. Alternatively, the risk averse client may prefer to avoid all possibility of a contentious audit. See, e.g., Pepper, supra note 26, at 1600-01 (advising against assuming a client's goal).
113. Model Rules 1.2 and 1.4 "encourage" communications but, because the Model Rules do not discuss different possible objectives of representation, do not identify when communications are necessary. MODEL RULES OF PROFESSIONAL CONDUCT Rules 1.2, 1.4 (1995).
114. This conclusion stems from the notion of client autonomy that lies at the heart of the traditional conception of lawyering. See, e.g., Pepper, supra note 5, at 616-17 (analyzing the role of client autonomy in determining lawyer ethics). This Article suggests that it would be reasonable to change the traditional ethic of superaggressive lawyering, including the traditional protections of confidentiality. Such changes would not, however, undermine the notion that clients should be entitled to make their own choices in the legal process, provided that they play within the rules of the game. Necessarily, clients need to be informed regarding how far they can trust their lawyers so that the client can act accordingly in giving the lawyer information and in seeking the lawyer's assistance.
115. See, e.g., Pepper, supra note 26, at 1554-87 (discussing withholding of information from clients). But see MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2 cmt. ("A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action.").
116. See, e.g., Pepper, supra note 26, at 1554-87 (discussing withholding of information from clients). But see MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2 cmt. ("A lawyer is required to give an honest opinion about the actual consequences that appear likely to result from a client's conduct. The fact that a client uses advice in a course of action that is criminal or fraudulent does not, of itself, make a lawyer a party to the course of action.").
117. See, e.g., BERNARD WOLFMAN ET AL., ETHICAL PROBLEMS IN FEDERAL TAX PRACTICE 1-2 (3d ed. 1995) (stating that "there are times . . . when the lawyer, while pursuing his client's interests competently, loyally, and discreetly, must hold himself and his client's interests in check in order to perform the less defined, seemingly contradictory duty that he owes to the [tax] system as a whole); cf. Frederic G. Corneel, Guidelines to Tax Practice Second, 43 TAX LAW. 297, 301 (1990) (stating " '[o]ur obligation to the government includes an obligation to the system" ' " (quoting TAX SECTION COMM. ON STANDARDS OF TAX PRACTICE, AMERICAN BAR ASS'N, GUIDELINES TO TAX PRACTICE SECOND § III)).
118. See, e.g., BERNARD WOLFMAN ET AL., ETHICAL PROBLEMS IN FEDERAL TAX PRACTICE 1-2 (3d ed. 1995) (stating that "there are times . . . when the lawyer, while pursuing his client's interests competently, loyally, and discreetly, must hold himself and his client's interests in check in order to perform the less defined, seemingly contradictory duty that he owes to the [tax] system as a whole); cf. Frederic G. Corneel, Guidelines to Tax Practice Second, 43 TAX LAW. 297, 301 (1990) (stating " '[o]ur obligation to the government includes an obligation to the system" ' " (quoting TAX SECTION COMM. ON STANDARDS OF TAX PRACTICE, AMERICAN BAR ASS'N, GUIDELINES TO TAX PRACTICE SECOND § III)).
119. See, e.g., BERNARD WOLFMAN ET AL., ETHICAL PROBLEMS IN FEDERAL TAX PRACTICE 1-2 (3d ed. 1995) (stating that "there are times . . . when the lawyer, while pursuing his client's interests competently, loyally, and discreetly, must hold himself and his client's interests in check in order to perform the less defined, seemingly contradictory duty that he owes to the [tax] system as a whole); cf. Frederic G. Corneel, Guidelines to Tax Practice Second, 43 TAX LAW. 297, 301 (1990) (stating " '[o]ur obligation to the government includes an obligation to the system" ' " (quoting TAX SECTION COMM. ON STANDARDS OF TAX PRACTICE, AMERICAN BAR ASS'N, GUIDELINES TO TAX PRACTICE SECOND § III)).
120. See, e.g., Pearce, supra note 17, at 1263-68 (discussing increasing conceptualization of law as a business); Zacharias, supra note 10, at 1330-50 (identifying effect of lawyers' personal and financial incentives on their exercise of moral discretion).
121. See, e.g., Pearce, supra note 17, at 1263-68 (discussing increasing conceptualization of law as a business); Zacharias, supra note 10, at 1330-50 (identifying effect of lawyers' personal and financial incentives on their exercise of moral discretion).
122. See 31 C.F.R. pt. 10 (1995) (regulating practice of lawyers before the IRS and providing for disciplinary machinery for violations); cf. supra note 12 and accompanying text (discussing the Office of Thrift Supervision's intervention into legal ethics in the banking regulation context by requiring lawyers to provide information in a nonmisleading fashion).
123. See Zacharias, supra note 56, at 257-65 (correlating specificity in code drafting to the degree of moral introspection lawyers will undertake).
124. See supra text accompanying note 31.
125. Thus, for example, lawyers might need to negotiate custody and child support issues first, in a nonconfrontational way, and then negotiate or litigate spousal support issues without linking the earlier issues.
126. See Zacharias, supra note 56, at 252-53 (discussing relationship between specificity in code drafting and producing specific desired conduct by lawyers).
127. See, e.g., Silver, supra note 7, at 1010-11 (relying on the paradigm of the indigent, 21-year-old criminal defendant with an intelligence quotient of 86). The criminal paradigm is discussed fully in Zacharias, supra note 3, at 167-69.
128. See, e.g., Silver, supra note 7, at 1010-11 (relying on the paradigm of the indigent, 21-year-old criminal defendant with an intelligence quotient of 86). The criminal paradigm is discussed fully in Zacharias, supra note 3, at 167-69.
129. See, e.g., FREEDMAN, supra note 5, at 4 (noting the client's incompetence "to evaluate the relevance or significance of particular facts"); DAVID MELLINKOFF, THE CONSCIENCE OF A LAWYER 10 (1973) (stating that "[t]he rules need explaining to those who don't know them").
130. See, e.g., FREEDMAN, supra note 5, at 4 (noting the client's incompetence "to evaluate the relevance or significance of particular facts"); DAVID MELLINKOFF, THE CONSCIENCE OF A LAWYER 10 (1973) (stating that "[t]he rules need explaining to those who don't know them").
131. Cf. Fried, supra note 7, at 1073 (stating that "without the assistance of an expert adviser an ordinary layman cannot exercise that autonomy which the system must allow him"); Pepper, supra note 5, at 626-27 (relying on enhancement of client autonomy rationale to justify aggressive representation in all settings).
132. Cf. Fried, supra note 7, at 1073 (stating that "without the assistance of an expert adviser an ordinary layman cannot exercise that autonomy which the system must allow him"); Pepper, supra note 5, at 626-27 (relying on enhancement of client autonomy rationale to justify aggressive representation in all settings).
133. See, e.g., FREEDMAN, supra note 5, at 2-3 (discussing lawyer's role in "ensur[ing] regard for the dignity of the individual"); Barbara Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175, 178 (1983) (discussing value of treating defendant "as a real person"); cf. MONROE FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 13, 15-16 (1990) (arguing that "the adversary system . . . consists of a core of basic rights that recognize and protect the dignity of the individual in a free society").
134. See, e.g., FREEDMAN, supra note 5, at 2-3 (discussing lawyer's role in "ensur[ing] regard for the dignity of the individual"); Barbara Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175, 178 (1983) (discussing value of treating defendant "as a real person"); cf. MONROE FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 13, 15-16 (1990) (arguing that "the adversary system . . . consists of a core of basic rights that recognize and protect the dignity of the individual in a free society").
135. See, e.g., FREEDMAN, supra note 5, at 2-3 (discussing lawyer's role in "ensur[ing] regard for the dignity of the individual"); Barbara Babcock, Defending the Guilty, 32 CLEV. ST. L. REV. 175, 178 (1983) (discussing value of treating defendant "as a real person"); cf. MONROE FREEDMAN, UNDERSTANDING LAWYERS' ETHICS 13, 15-16 (1990) (arguing that "the adversary system . . . consists of a core of basic rights that recognize and protect the dignity of the individual in a free society").
136. See, e.g., LUBAN, supra note 3, at 58-66 (suggesting that aggressive defense counsel is necessary to withstand the power and expertise of the state); Silver, supra note 4, at 862-66 (relying on resource imbalance to justify superaggressive role for criminal defense counsel); Yaroshefsky, supra note 4, at 143-45 (discussing resource imbalance).
137. See, e.g., LUBAN, supra note 3, at 58-66 (suggesting that aggressive defense counsel is necessary to withstand the power and expertise of the state); Silver, supra note 4, at 862-66 (relying on resource imbalance to justify superaggressive role for criminal defense counsel); Yaroshefsky, supra note 4, at 143-45 (discussing resource imbalance).
138. See, e.g., LUBAN, supra note 3, at 58-66 (suggesting that aggressive defense counsel is necessary to withstand the power and expertise of the state); Silver, supra note 4, at 862-66 (relying on resource imbalance to justify superaggressive role for criminal defense counsel); Yaroshefsky, supra note 4, at 143-45 (discussing resource imbalance).
139. See sources cited supra note 19.
140. See, e.g., Cole & Zacharias, supra note 63, at 1656-60 (discussing differences in criminal clients' ability to purchase public relations counsel); Schwartz, supra note 3, at 554 (noting that often the defendant does not face a state juggernaut); Simon, supra note 5, at 1707 (stating "the state cannot possibly focus its power . . . on all defendants").
141. See, e.g., Cole & Zacharias, supra note 63, at 1656-60 (discussing differences in criminal clients' ability to purchase public relations counsel); Schwartz, supra note 3, at 554 (noting that often the defendant does not face a state juggernaut); Simon, supra note 5, at 1707 (stating "the state cannot possibly focus its power . . . on all defendants").
142. See, e.g., Cole & Zacharias, supra note 63, at 1656-60 (discussing differences in criminal clients' ability to purchase public relations counsel); Schwartz, supra note 3, at 554 (noting that often the defendant does not face a state juggernaut); Simon, supra note 5, at 1707 (stating "the state cannot possibly focus its power . . . on all defendants").
143. See, e.g., Zacharias, supra note 3, at 173-74 (discussing variations in mental states of criminal defendants).
144. The differences in clients is relevant to the rationales that aggressive counsel is needed to serve the "dignity" and the "autonomy" of their clients. See, e.g., Philip M. Gassell et al., Representing the Helpless: Toward an Ethical Guide for the Perplexed Attorney, 5 W. ST. U. L. REV. 173, 187 (1978) (arguing that "helpless" clients cannot exercise autonomy, thus changing the lawyer's ethical role). For example, a corporate client that communicates with the legal process and its lawyer through in-house counsel does not share any of the psychological isolation or distress that is at the heart of the dignity rationale. Indeed, to be crass, corporations may worry about losing big cases, but they have no "feelings" in the psychological sense. Moreover, since the corporation is presumably well-advised by in-house counsel, it can address the consequences of its legal decisions rationally; it needs no special conduct by its lawyers to enable it to exercise autonomy.
145. Conversely, some civil litigants faced with the loss of livelihood or reputation may feel more beleaguered than the typical criminal defendant.
146. Most professional codes allow lawyers and clients to modify the objectives of litigation and to consent to lawyers' obligations to the clients (as opposed to the lawyers' obligation to society, third parties, and the legal system). See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(c) (1995) ("A lawyer may limit the objectives of the representation if the client consents after consultation."); id. Rule 1.6(a) (authorizing client consent to disclosure of confidential information).
147. Most professional codes allow lawyers and clients to modify the objectives of litigation and to consent to lawyers' obligations to the clients (as opposed to the lawyers' obligation to society, third parties, and the legal system). See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(c) (1995) ("A lawyer may limit the objectives of the representation if the client consents after consultation."); id. Rule 1.6(a) (authorizing client consent to disclosure of confidential information).
148. See sources cited supra note 83.
149. See, e.g., MARVIN E. FRANKEL, PARTISAN JUSTICE 103 (1980) (arguing that resource imbalance in discovery enables wealthier litigants to overpower the opposition).
150. See FED. R. CIV. P. 26 advisory committee's note.
151. See Cole & Zacharias, supra note 63, at 1659, 1671 (discussing competitive advantage of lawyers who are willing and able to perform the functions of public relations spokespersons as those typically performed by lawyers).
152. See, e.g., Zacharias, supra note 7, at 373 (discussing how lawyers rely upon strict ethics rules as a shield against criticism for keeping confidences).
153. Cf. Cole & Zacharias, supra note 63, at 1659 (discussing possibility that changing lawyers' functions will cause some to quit the field).
154. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
155. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
156. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
157. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
158. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
159. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
160. See, e.g., Richard D. Crouch, The Matter of Bombers: Unfair Tactics and the Problem of Defining Unethical Behavior in Divorce Litigation, 20 FAM. L.Q. 413, 435-38 (1986) (arguing for a "special ethics code to govern matrimonial practice"); Simon M. Lorne, The Corporate and Securities Adviser, the Public Interest, and Professional Ethics, 76 MICH. L. REV. 423, 476-95 (1978) (proposing the adoption of a new code of "Professional Advisorial Responsibility"); Jeffrey N. Pennell, Ethics in Estate Planning and Fiduciary Administration: The Inadequacy of the Model Rules and the Model Code, 45 RECORD 715, 763 (1990) (urging development of a specialized ethics code for estate planners); Stanley Sporkin, The Need for Separate Codes of Professional Conduct for the Various Specialties, 7 GEO. J. LEGAL ETHICS 149, 150-52 (1993) (urging specialized ethics for corporate and securities practice); Fred C. Zacharias, Fact and Fiction in the Restatement of the Law Governing Lawyers: Should the Confidentiality Provisions Restate the Law?, 6 GEO. J. LEGAL ETHICS 903, 930-31 (1993) (suggesting that the American Law Institute consider drafting specialized codes); Wendy Woods, Note, Model Rule 2.2 and Divorce Mediation: Ethics Guideline or Ethics Gap?, 65 WASH. U. L.Q. 223, 231 (1987) (arguing for new ethical guidelines addressed specifically to lawyer-mediators); cf. Gerald P. Johnston, An Ethical Analysis of Common Estate Planning Practices - Is Good Business Bad Ethics?, 45 OHIO ST. L.J. 57, 78-79, 140 (1984) (criticizing the Model Rules and Model Code as failing to address the special issues faced by estate planners).
161. See, e.g., 8 C.F.R. § 292.3 (1992) (establishing grounds for suspension or disbarment of lawyers practicing immigration law before the Immigration and Naturalization Service); 31 C.F.R. pt. 10 (1995) (prescribing regulations for tax practitioners before the IRS); AMERICAN BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES (1984); CODE OF ETHICS OF THE ASSOCIATION OF REPRESENTATIVES OF PROFESSIONAL ATHLETES (prescribing rules of conduct for attorneys representing professional athletes), reprinted in Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 88-95 (1988); American Academy of Matrimonial Lawyers, supra note 11, at 6-39 (setting forth standards of conduct adopted by the American Academy of Matrimonial Lawyers for matrimonial cases); Michael C. Durst, The Tax Lawyer's Professional Responsibility, 39 U. FLA. L. REV. 1027, 1030 (1987) (describing Treasury Department regulations setting out ethical standards for tax lawyers); Brian R. Hersh, Ethical Considerations of the Immigration Lawyer, FLA. B.J., Jan. 1977, at 18, 21-22 (describing special regulations of the Immigration and Naturalization Service that regulate immigration lawyers' ethics); cf. AMERICAN COLLEGE OF TRUST & ESTATE COUNSEL, COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT (1993) (interpreting the Model Rules in a way designed to provide further guidance to trust and estate practitioners).
162. See, e.g., 8 C.F.R. § 292.3 (1992) (establishing grounds for suspension or disbarment of lawyers practicing immigration law before the Immigration and Naturalization Service); 31 C.F.R. pt. 10 (1995) (prescribing regulations for tax practitioners before the IRS); AMERICAN BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES (1984); CODE OF ETHICS OF THE ASSOCIATION OF REPRESENTATIVES OF PROFESSIONAL ATHLETES (prescribing rules of conduct for attorneys representing professional athletes), reprinted in Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 88-95 (1988); American Academy of Matrimonial Lawyers, supra note 11, at 6-39 (setting forth standards of conduct adopted by the American Academy of Matrimonial Lawyers for matrimonial cases); Michael C. Durst, The Tax Lawyer's Professional Responsibility, 39 U. FLA. L. REV. 1027, 1030 (1987) (describing Treasury Department regulations setting out ethical standards for tax lawyers); Brian R. Hersh, Ethical Considerations of the Immigration Lawyer, FLA. B.J., Jan. 1977, at 18, 21-22 (describing special regulations of the Immigration and Naturalization Service that regulate immigration lawyers' ethics); cf. AMERICAN COLLEGE OF TRUST & ESTATE COUNSEL, COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT (1993) (interpreting the Model Rules in a way designed to provide further guidance to trust and estate practitioners).
163. See, e.g., 8 C.F.R. § 292.3 (1992) (establishing grounds for suspension or disbarment of lawyers practicing immigration law before the Immigration and Naturalization Service); 31 C.F.R. pt. 10 (1995) (prescribing regulations for tax practitioners before the IRS); AMERICAN BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES (1984); CODE OF ETHICS OF THE ASSOCIATION OF REPRESENTATIVES OF PROFESSIONAL ATHLETES (prescribing rules of conduct for attorneys representing professional athletes), reprinted in Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 88-95 (1988); American Academy of Matrimonial Lawyers, supra note 11, at 6-39 (setting forth standards of conduct adopted by the American Academy of Matrimonial Lawyers for matrimonial cases); Michael C. Durst, The Tax Lawyer's Professional Responsibility, 39 U. FLA. L. REV. 1027, 1030 (1987) (describing Treasury Department regulations setting out ethical standards for tax lawyers); Brian R. Hersh, Ethical Considerations of the Immigration Lawyer, FLA. B.J., Jan. 1977, at 18, 21-22 (describing special regulations of the Immigration and Naturalization Service that regulate immigration lawyers' ethics); cf. AMERICAN COLLEGE OF TRUST & ESTATE COUNSEL, COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT (1993) (interpreting the Model Rules in a way designed to provide further guidance to trust and estate practitioners).
164. See, e.g., 8 C.F.R. § 292.3 (1992) (establishing grounds for suspension or disbarment of lawyers practicing immigration law before the Immigration and Naturalization Service); 31 C.F.R. pt. 10 (1995) (prescribing regulations for tax practitioners before the IRS); AMERICAN BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES (1984); CODE OF ETHICS OF THE ASSOCIATION OF REPRESENTATIVES OF PROFESSIONAL ATHLETES (prescribing rules of conduct for attorneys representing professional athletes), reprinted in Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 88-95 (1988); American Academy of Matrimonial Lawyers, supra note 11, at 6-39 (setting forth standards of conduct adopted by the American Academy of Matrimonial Lawyers for matrimonial cases); Michael C. Durst, The Tax Lawyer's Professional Responsibility, 39 U. FLA. L. REV. 1027, 1030 (1987) (describing Treasury Department regulations setting out ethical standards for tax lawyers); Brian R. Hersh, Ethical Considerations of the Immigration Lawyer, FLA. B.J., Jan. 1977, at 18, 21-22 (describing special regulations of the Immigration and Naturalization Service that regulate immigration lawyers' ethics); cf. AMERICAN COLLEGE OF TRUST & ESTATE COUNSEL, COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT (1993) (interpreting the Model Rules in a way designed to provide further guidance to trust and estate practitioners).
165. See, e.g., 8 C.F.R. § 292.3 (1992) (establishing grounds for suspension or disbarment of lawyers practicing immigration law before the Immigration and Naturalization Service); 31 C.F.R. pt. 10 (1995) (prescribing regulations for tax practitioners before the IRS); AMERICAN BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES (1984); CODE OF ETHICS OF THE ASSOCIATION OF REPRESENTATIVES OF PROFESSIONAL ATHLETES (prescribing rules of conduct for attorneys representing professional athletes), reprinted in Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 88-95 (1988); American Academy of Matrimonial Lawyers, supra note 11, at 6-39 (setting forth standards of conduct adopted by the American Academy of Matrimonial Lawyers for matrimonial cases); Michael C. Durst, The Tax Lawyer's Professional Responsibility, 39 U. FLA. L. REV. 1027, 1030 (1987) (describing Treasury Department regulations setting out ethical standards for tax lawyers); Brian R. Hersh, Ethical Considerations of the Immigration Lawyer, FLA. B.J., Jan. 1977, at 18, 21-22 (describing special regulations of the Immigration and Naturalization Service that regulate immigration lawyers' ethics); cf. AMERICAN COLLEGE OF TRUST & ESTATE COUNSEL, COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT (1993) (interpreting the Model Rules in a way designed to provide further guidance to trust and estate practitioners).
166. See, e.g., 8 C.F.R. § 292.3 (1992) (establishing grounds for suspension or disbarment of lawyers practicing immigration law before the Immigration and Naturalization Service); 31 C.F.R. pt. 10 (1995) (prescribing regulations for tax practitioners before the IRS); AMERICAN BAR ASS'N, STANDARDS OF PRACTICE FOR LAWYER MEDIATORS IN FAMILY DISPUTES (1984); CODE OF ETHICS OF THE ASSOCIATION OF REPRESENTATIVES OF PROFESSIONAL ATHLETES (prescribing rules of conduct for attorneys representing professional athletes), reprinted in Robert E. Fraley & F. Russell Harwell, Ethics and the Sports Lawyer: A Comprehensive Approach, 13 J. LEGAL PROF. 9, 88-95 (1988); American Academy of Matrimonial Lawyers, supra note 11, at 6-39 (setting forth standards of conduct adopted by the American Academy of Matrimonial Lawyers for matrimonial cases); Michael C. Durst, The Tax Lawyer's Professional Responsibility, 39 U. FLA. L. REV. 1027, 1030 (1987) (describing Treasury Department regulations setting out ethical standards for tax lawyers); Brian R. Hersh, Ethical Considerations of the Immigration Lawyer, FLA. B.J., Jan. 1977, at 18, 21-22 (describing special regulations of the Immigration and Naturalization Service that regulate immigration lawyers' ethics); cf. AMERICAN COLLEGE OF TRUST & ESTATE COUNSEL, COMMENTARIES ON MODEL RULES OF PROFESSIONAL CONDUCT (1993) (interpreting the Model Rules in a way designed to provide further guidance to trust and estate practitioners).
167. One might, of course, simply select and propose codes for individual subjects that seem to call for special regulation, such as matrimonial law, without attempting to group them with other likely candidates or identifying governing principles for their selection. I suspect that this method of proceeding would break down quickly as the list grows and the reasons for focusing on them becomes less clear. At a minimum, the attempt on the following pages to identify logical groupings should help to avoid confusion as we engage in the process of reconceptualizing the codes.
168. See, e.g., Norman N. Robbins, Family Law Ethics, 4 AM. J. FAM. L. 117, 124 (1990) (urging the implementation of a specialized family law code, in part because of potential conflicts between interests of the parent and child); Donald G. Tye, How Do You Protect the Child? What Are the Ethical Boundaries a Lawyer Must Observe in a Divorce?, FAM. ADVOC., Winter 1987, at 20, 23 (discussing a variety of special interests a child may have in divorce proceedings); David L. Walther, Conflict of Interest Between Child and Parent, 5 AM. J. FAM. L. 51, 52 (1991) (discussing the dilemma faced by the lawyer who fears child abuse by his client); William I. Weston, Ethics for the Family Law Practitioner, TRIAL, June 1992, at 18, 22 (describing the dilemma of the divorce lawyer who believes his client would not be the "best parent").
169. See, e.g., Norman N. Robbins, Family Law Ethics, 4 AM. J. FAM. L. 117, 124 (1990) (urging the implementation of a specialized family law code, in part because of potential conflicts between interests of the parent and child); Donald G. Tye, How Do You Protect the Child? What Are the Ethical Boundaries a Lawyer Must Observe in a Divorce?, FAM. ADVOC., Winter 1987, at 20, 23 (discussing a variety of special interests a child may have in divorce proceedings); David L. Walther, Conflict of Interest Between Child and Parent, 5 AM. J. FAM. L. 51, 52 (1991) (discussing the dilemma faced by the lawyer who fears child abuse by his client); William I. Weston, Ethics for the Family Law Practitioner, TRIAL, June 1992, at 18, 22 (describing the dilemma of the divorce lawyer who believes his client would not be the "best parent").
170. See, e.g., Norman N. Robbins, Family Law Ethics, 4 AM. J. FAM. L. 117, 124 (1990) (urging the implementation of a specialized family law code, in part because of potential conflicts between interests of the parent and child); Donald G. Tye, How Do You Protect the Child? What Are the Ethical Boundaries a Lawyer Must Observe in a Divorce?, FAM. ADVOC., Winter 1987, at 20, 23 (discussing a variety of special interests a child may have in divorce proceedings); David L. Walther, Conflict of Interest Between Child and Parent, 5 AM. J. FAM. L. 51, 52 (1991) (discussing the dilemma faced by the lawyer who fears child abuse by his client); William I. Weston, Ethics for the Family Law Practitioner, TRIAL, June 1992, at 18, 22 (describing the dilemma of the divorce lawyer who believes his client would not be the "best parent").
171. See, e.g., Norman N. Robbins, Family Law Ethics, 4 AM. J. FAM. L. 117, 124 (1990) (urging the implementation of a specialized family law code, in part because of potential conflicts between interests of the parent and child); Donald G. Tye, How Do You Protect the Child? What Are the Ethical Boundaries a Lawyer Must Observe in a Divorce?, FAM. ADVOC., Winter 1987, at 20, 23 (discussing a variety of special interests a child may have in divorce proceedings); David L. Walther, Conflict of Interest Between Child and Parent, 5 AM. J. FAM. L. 51, 52 (1991) (discussing the dilemma faced by the lawyer who fears child abuse by his client); William I. Weston, Ethics for the Family Law Practitioner, TRIAL, June 1992, at 18, 22 (describing the dilemma of the divorce lawyer who believes his client would not be the "best parent").
172. See, e.g., Roger C. Cramton, Individualized Justice, Mass Torts, and "Settlement Class Actions": An Introduction, 80 CORNELL L. REV. 811, 831-32 (1995) (discussing the difficulty of representing future claimants in the same suit as current claimants); cf. J. William Futrell, Environmental Ethics, Legal Ethics, and Codes of Professional Responsibility, 27 LOY. L.A. L. REV. 825, 837 (1994) (noting that "aspects of environmental practice [are] ill-suited to the adversary model of professional legal ethics"); Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. REV. 469, 490 (1994) (discussing fact that although mass tort cases have a significant impact on communities other than the litigants, that impact is not typically enough to affect the conduct of the lawyer and current clients).
173. See, e.g., Roger C. Cramton, Individualized Justice, Mass Torts, and "Settlement Class Actions": An Introduction, 80 CORNELL L. REV. 811, 831-32 (1995) (discussing the difficulty of representing future claimants in the same suit as current claimants); cf. J. William Futrell, Environmental Ethics, Legal Ethics, and Codes of Professional Responsibility, 27 LOY. L.A. L. REV. 825, 837 (1994) (noting that "aspects of environmental practice [are] ill-suited to the adversary model of professional legal ethics"); Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. REV. 469, 490 (1994) (discussing fact that although mass tort cases have a significant impact on communities other than the litigants, that impact is not typically enough to affect the conduct of the lawyer and current clients).
174. See, e.g., Roger C. Cramton, Individualized Justice, Mass Torts, and "Settlement Class Actions": An Introduction, 80 CORNELL L. REV. 811, 831-32 (1995) (discussing the difficulty of representing future claimants in the same suit as current claimants); cf. J. William Futrell, Environmental Ethics, Legal Ethics, and Codes of Professional Responsibility, 27 LOY. L.A. L. REV. 825, 837 (1994) (noting that "aspects of environmental practice [are] ill-suited to the adversary model of professional legal ethics"); Jack B. Weinstein, Ethical Dilemmas in Mass Tort Litigation, 88 Nw. U. L. REV. 469, 490 (1994) (discussing fact that although mass tort cases have a significant impact on communities other than the litigants, that impact is not typically enough to affect the conduct of the lawyer and current clients).
175. As I discuss elsewhere, criminal prosecutors have a duty to "do justice," but that vague concept can justify virtually any sort of behavior. A prosecutor can at the same time rationalize convicting at all costs a defendant whom she thinks is a criminal because that is a "just result," or can help the defendant use a technicality to avoid conviction because he is one of her constituents. See Zacharias, supra note 56, at 263-64; Zacharias, supra note 2, at 48.
176. As I discuss elsewhere, criminal prosecutors have a duty to "do justice," but that vague concept can justify virtually any sort of behavior. A prosecutor can at the same time rationalize convicting at all costs a defendant whom she thinks is a criminal because that is a "just result," or can help the defendant use a technicality to avoid conviction because he is one of her constituents. See Zacharias, supra note 56, at 263-64; Zacharias, supra note 2, at 48.
177. See James T. Bunch et al., Representing an Entity, 9 COLO. LAW. 2588 (1980) (discussing the inherent conflict felt by corporate counsel); Ralph Jonas, Who is the Client?: The Corporate Lawyer's Dilemma, 39 HASTINGS L.J. 617, 618 (1988) (noting that "[i]n the world of corporate takeovers, mergers, acquisitions, and breakups, . . . the assumptions upon which the conclusions [that the lawyer owes his duty to the entity] rest seem less than solid"); James R. McCall, The Corporation as Client: Problems, Perspectives, and Partial Solutions, 39 HASTINGS L.J. 623, 625 (1988) (analyzing the entity-as-client concept); Sporkin, supra note 96, at 150 (discussing divided loyalties of corporate counsel); Wendy Kilbride, Current Development, Identifying the Client in the Corporate Setting and the Attorney-Client Privilege, 6 GEO. J. LEGAL ETHICS 1129, 1129-30 (1993) (discussing the Model Rules method of reconciling the inherent conflicts of corporate counsel); cf. In re Kinsey, 660 P.2d 660, 674 (Or. 1983) (reprimanding corporation's lawyer for misperceiving his obligations before, during, and after takeover attempt).
178. See James T. Bunch et al., Representing an Entity, 9 COLO. LAW. 2588 (1980) (discussing the inherent conflict felt by corporate counsel); Ralph Jonas, Who is the Client?: The Corporate Lawyer's Dilemma, 39 HASTINGS L.J. 617, 618 (1988) (noting that "[i]n the world of corporate takeovers, mergers, acquisitions, and breakups, . . . the assumptions upon which the conclusions [that the lawyer owes his duty to the entity] rest seem less than solid"); James R. McCall, The Corporation as Client: Problems, Perspectives, and Partial Solutions, 39 HASTINGS L.J. 623, 625 (1988) (analyzing the entity-as-client concept); Sporkin, supra note 96, at 150 (discussing divided loyalties of corporate counsel); Wendy Kilbride, Current Development, Identifying the Client in the Corporate Setting and the Attorney-Client Privilege, 6 GEO. J. LEGAL ETHICS 1129, 1129-30 (1993) (discussing the Model Rules method of reconciling the inherent conflicts of corporate counsel); cf. In re Kinsey, 660 P.2d 660, 674 (Or. 1983) (reprimanding corporation's lawyer for misperceiving his obligations before, during, and after takeover attempt).
179. See James T. Bunch et al., Representing an Entity, 9 COLO. LAW. 2588 (1980) (discussing the inherent conflict felt by corporate counsel); Ralph Jonas, Who is the Client?: The Corporate Lawyer's Dilemma, 39 HASTINGS L.J. 617, 618 (1988) (noting that "[i]n the world of corporate takeovers, mergers, acquisitions, and breakups, . . . the assumptions upon which the conclusions [that the lawyer owes his duty to the entity] rest seem less than solid"); James R. McCall, The Corporation as Client: Problems, Perspectives, and Partial Solutions, 39 HASTINGS L.J. 623, 625 (1988) (analyzing the entity-as-client
180. See James T. Bunch et al., Representing an Entity, 9 COLO. LAW. 2588 (1980) (discussing the inherent conflict felt by corporate counsel); Ralph Jonas, Who is the Client?: The Corporate Lawyer's Dilemma, 39 HASTINGS L.J. 617, 618 (1988) (noting that "[i]n the world of corporate takeovers, mergers, acquisitions, and breakups, . . . the assumptions upon which the conclusions [that the lawyer owes his duty to the entity] rest seem less than solid"); James R. McCall, The Corporation as Client: Problems, Perspectives, and Partial Solutions, 39 HASTINGS L.J. 623, 625 (1988) (analyzing the entity-as-client concept); Sporkin, supra note 96, at 150 (discussing divided loyalties of corporate counsel); Wendy Kilbride, Current Development, Identifying the Client in the Corporate Setting and the Attorney-Client Privilege, 6 GEO. J. LEGAL ETHICS 1129, 1129-30 (1993) (discussing the Model Rules method of reconciling the inherent conflicts of corporate counsel); cf. In re Kinsey, 660 P.2d 660, 674 (Or. 1983) (reprimanding corporation's lawyer for misperceiving his obligations before, during, and after takeover attempt).
181. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.13 (1995).
182. The traditional codes fail to address two sets of problems adequately. First, although the codes define corporate counsel's obligations as furthering the interests of the corporation, the codes typically fail to define those interests. Thus, when differing corporate constituencies have different opinions on how a corporation should balance profit maximization with other concerns (e.g., environmental), the codes do not take a stand. Perhaps more troubling is the codes' failure to address realistically the psychological and financial connection corporate lawyers ordinarily have with management. To the extent rules are premised on corporate lawyers' independence and expect corporate lawyers to act against management's interests (e.g., in reporting to the board of directors or responding to a takeover attempt), the codes may ask too much. Cf. Richard W. Painter, The Moral Interdependence of Corporate Lawyers and Their Clients, 67 S. CAL. L. REV. 507, 515 (1994) (arguing that professional norms underemphasize lawyers moral independence and personal accountability for corporate conduct).
183. See James Gray Pope, Two Faces, Two Ethics: Labor Union Lawyers and the Emerging Doctrine of Entity Ethics, 68 OR. L. REV. 1,4, 17-22 (1989) (discussing lawyers' role in potential conflict of interest between union officers, the union, and its members); Adrienne L. Saldana, Conflicting Interests in Union Representation: Should Exclusivity Be Abolished?, 6 GEO. J. LEGAL ETHICS 133, 139-43 (1992) (discussing conflict of interests between union and individual members that union attorneys face in grievance proceedings).
184. See James Gray Pope, Two Faces, Two Ethics: Labor Union Lawyers and the Emerging Doctrine of Entity Ethics, 68 OR. L. REV. 1,4, 17-22 (1989) (discussing lawyers' role in potential conflict of interest between union officers, the union, and its members); Adrienne L. Saldana, Conflicting Interests in Union Representation: Should Exclusivity Be Abolished?, 6 GEO. J. LEGAL ETHICS 133, 139-43 (1992) (discussing conflict of interests between union and individual members that union attorneys face in grievance proceedings).
185. See Cramton, supra note 100, at 828 (discussing problem of conflicting loyalties of class counsel); Thomas A. Smith, A Capital Markets Approach to Mass Tort Bankruptcy, 104 YALE L.J. 367, 373, 391, 395 (1994) (discussing alternative ways to protect interests of future claimants); Brian J. Waid, Ethical Problems of the Class Action Practitioner: Continued Neglect by the Drafters of the Proposed Model Rules of Professional Conduct, 27 LOY. L. REV. 1047, 1061-74 (1981) (discussing problem of conflicting loyalties of class counsel).
186. See Cramton, supra note 100, at 828 (discussing problem of conflicting loyalties of class counsel); Thomas A. Smith, A Capital Markets Approach to Mass Tort Bankruptcy, 104 YALE L.J. 367, 373, 391, 395 (1994) (discussing alternative ways to protect interests of future claimants); Brian J. Waid, Ethical Problems of the Class Action Practitioner: Continued Neglect by the Drafters of the Proposed Model Rules of Professional Conduct, 27 LOY. L. REV. 1047, 1061-74 (1981) (discussing problem of conflicting loyalties of class counsel).
187. See Cramton, supra note 100, at 828 (discussing problem of conflicting loyalties of class counsel); Thomas A. Smith, A Capital Markets Approach to Mass Tort Bankruptcy, 104 YALE L.J. 367, 373, 391, 395 (1994) (discussing alternative ways to protect interests of future claimants); Brian J. Waid, Ethical Problems of the Class Action Practitioner: Continued Neglect by the Drafters of the Proposed Model Rules of Professional Conduct, 27 LOY. L. REV. 1047, 1061-74 (1981) (discussing problem of conflicting loyalties of class counsel).
188. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 8.4, at 428-35 (1986) (discussing problems of joint representation of insurer and insured); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 DUKE L.J. 255, 269 (1995) (discussing the tripartite relationship among counsel, insured, and insurer and arguing that who counsel represents is governed by contract). In most jurisdictions, ethics codes and regulation resolve this potential conflict by suggesting that the insurer engage separate counsel to protect its interests. See, e.g., San Diego Navy Fed. Credit Union v. Cumis, 208 Cal. Rptr. 494, 501 (Cal. Ct. App. 1984) (distinguishing situations in which separate counsel is required); Public Serv. Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810, 815 (N.Y. 1981) (requiring insurer to engage separate counsel for insured); see also CAL. CIV. CODE § 2860 (West 1993) (introducing some limitations on when separate counsel is required). This resolution is costly and, in small cases, unrealistic. Moreover, even when separate counsel is engaged, the insured's lawyer may still sense a conflict if he hopes to receive more business from the insurer in the future. See, e.g., Ben L. Kessinger, Jr., Ethical Problems Confronting Insurance Defense Counsel, 8 KY. BENCH & B. 10 (1983) (discussing insurance lawyers' concern not to disrupt future business from insurer); Robert E. O'Malley, Marine Insurance, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 TUL. L. REV. 511 (1991) (warning that counsel "will slant his efforts, perhaps unconsciously, in the interests of his real client - the one who is paying his fee and from whom he hopes to receive future business - the insurance company"); cf. Walter G. Campbell, Jr., Ethical Questions Concerning Insurer House Counsel Representation of Insureds in Litigation, FLA. B.J., Nov. 1993, at 66, 67 (discussing special problem of lawyer whose sole client is an insurer).
189. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 8.4, at 428-35 (1986) (discussing problems of joint representation of insurer and insured); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 DUKE L.J. 255, 269 (1995) (discussing the tripartite relationship among counsel, insured, and insurer and arguing that who counsel represents is governed by contract). In most jurisdictions, ethics codes and regulation resolve this potential conflict by suggesting that the insurer engage separate counsel to protect its interests. See, e.g., San Diego Navy Fed. Credit Union v. Cumis, 208 Cal. Rptr. 494, 501 (Cal. Ct. App. 1984) (distinguishing situations in which separate counsel is required); Public Serv. Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810, 815 (N.Y. 1981) (requiring insurer to engage separate counsel for insured); see also CAL. CIV. CODE § 2860 (West 1993) (introducing some limitations on when separate counsel is required). This resolution is costly and, in small cases, unrealistic. Moreover, even when separate counsel is engaged, the insured's lawyer may still sense a conflict if he hopes to receive more business from the insurer in the future. See, e.g., Ben L. Kessinger, Jr., Ethical Problems Confronting Insurance Defense Counsel, 8 KY. BENCH & B. 10 (1983) (discussing insurance lawyers' concern not to disrupt future business from insurer); Robert E. O'Malley, Marine Insurance, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 TUL. L. REV. 511 (1991) (warning that counsel "will slant his efforts, perhaps unconsciously, in the interests of his real client - the one who is paying his fee and from whom he hopes to receive future business - the insurance company"); cf. Walter G. Campbell, Jr., Ethical Questions Concerning Insurer House Counsel Representation of Insureds in Litigation, FLA. B.J., Nov. 1993, at 66, 67 (discussing special problem of lawyer whose sole client is an insurer).
190. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 8.4, at 428-35 (1986) (discussing problems of joint representation of insurer and insured); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 DUKE L.J. 255, 269 (1995) (discussing the tripartite relationship among counsel, insured, and insurer and arguing that who counsel represents is governed by contract). In most jurisdictions, ethics codes and regulation resolve this potential conflict by suggesting that the insurer engage separate counsel to protect its interests. See, e.g., San Diego Navy Fed. Credit Union v. Cumis, 208 Cal. Rptr. 494, 501 (Cal. Ct. App. 1984) (distinguishing situations in which separate counsel is required); Public Serv. Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810, 815 (N.Y. 1981) (requiring insurer to engage separate counsel for insured); see also CAL. CIV. CODE § 2860 (West 1993) (introducing some limitations on when separate counsel is required). This resolution is costly and, in small cases, unrealistic. Moreover, even when separate counsel is engaged, the insured's lawyer may still sense a conflict if he hopes to receive more business from the insurer in the future. See, e.g., Ben L. Kessinger, Jr., Ethical Problems Confronting Insurance Defense Counsel, 8 KY. BENCH & B. 10 (1983) (discussing insurance lawyers' concern not to disrupt future business from insurer); Robert E. O'Malley, Marine Insurance, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 TUL. L. REV. 511 (1991) (warning that counsel "will slant his efforts, perhaps unconsciously, in the interests of his real client - the one who is paying his fee and from whom he hopes to receive future business - the insurance company"); cf. Walter G. Campbell, Jr., Ethical Questions Concerning Insurer House Counsel Representation of Insureds in Litigation, FLA. B.J., Nov. 1993, at 66, 67 (discussing special problem of lawyer whose sole client is an insurer).
191. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 8.4, at 428-35 (1986) (discussing problems of joint representation of insurer and insured); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 DUKE L.J. 255, 269 (1995) (discussing the tripartite relationship among counsel, insured, and insurer and arguing that who counsel represents is governed by contract). In most jurisdictions, ethics codes and regulation resolve this potential conflict by suggesting that the insurer engage separate counsel to protect its interests. See, e.g., San Diego Navy Fed. Credit Union v. Cumis, 208 Cal. Rptr. 494, 501 (Cal. Ct. App. 1984) (distinguishing situations in which separate counsel is required); Public Serv. Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810, 815 (N.Y. 1981) (requiring insurer to engage separate counsel for insured); see also CAL. CIV. CODE § 2860 (West 1993) (introducing some limitations on when separate counsel is required). This resolution is costly and, in small cases, unrealistic. Moreover, even when separate counsel is engaged, the insured's lawyer may still sense a conflict if he hopes to receive more business from the insurer in the future. See, e.g., Ben L. Kessinger, Jr., Ethical Problems Confronting Insurance Defense Counsel, 8 KY. BENCH & B. 10 (1983) (discussing insurance lawyers' concern not to disrupt future business from insurer); Robert E. O'Malley, Marine Insurance, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 TUL. L. REV. 511 (1991) (warning that counsel "will slant his efforts, perhaps unconsciously, in the interests of his real client - the one who is paying his fee and from whom he hopes to receive future business - the insurance company"); cf. Walter G. Campbell, Jr., Ethical Questions Concerning Insurer House Counsel Representation of Insureds in Litigation, FLA. B.J., Nov. 1993, at 66, 67 (discussing special problem of lawyer whose sole client is an insurer).
192. See generally CHARLES W. WOLFRAM, MODERN LEGAL ETHICS § 8.4, at 428-35 (1986) (discussing problems of joint representation of insurer and insured); Charles Silver & Kent Syverud, The Professional Responsibilities of Insurance Defense Lawyers, 45 DUKE L.J. 255, 269 (1995) (discussing the tripartite relationship among counsel, insured, and insurer and arguing that who counsel represents is governed by contract). In most jurisdictions, ethics codes and regulation resolve this potential conflict by suggesting that the insurer engage separate counsel to protect its interests. See, e.g., San Diego Navy Fed. Credit Union v. Cumis, 208 Cal. Rptr. 494, 501 (Cal. Ct. App. 1984) (distinguishing situations in which separate counsel is required); Public Serv. Mut. Ins. Co. v. Goldfarb, 425 N.E.2d 810, 815 (N.Y. 1981) (requiring insurer to engage separate counsel for insured); see also CAL. CIV. CODE § 2860 (West 1993) (introducing some limitations on when separate counsel is required). This resolution is costly and, in small cases, unrealistic. Moreover, even when separate counsel is engaged, the insured's lawyer may still sense a conflict if he hopes to receive more business from the insurer in the future. See, e.g., Ben L. Kessinger, Jr., Ethical Problems Confronting Insurance Defense Counsel, 8 KY. BENCH & B. 10 (1983) (discussing insurance lawyers' concern not to disrupt future business from insurer); Robert E. O'Malley, Marine Insurance, Ethics Principles for the Insurer, the Insured, and Defense Counsel: The Eternal Triangle Reformed, 66 TUL. L. REV. 511 (1991) (warning that counsel "will slant his efforts, perhaps unconsciously, in the interests of his real client - the one who is paying his fee and from whom he hopes to receive future business - the insurance company"); cf. Walter G. Campbell, Jr., Ethical Questions Concerning Insurer House Counsel Representation of Insureds in Litigation, FLA. B.J., Nov. 1993, at 66, 67 (discussing special problem of lawyer whose sole client is an insurer).
193. In other words, to the extent the insurance plan pays on a flxed-cost basis or hires the lawyer for a finite period of time, extending the scope of the services disadvantages the lawyer. On the other hand, if the plan allows the lawyer to bill on a regular time-spent basis, the plan will not be happy with the lawyer who fails to minimize the time she spends on each case.
194. For example, under the Model Rules, the corporate lawyer's obligation is to the corporation, the union lawyer's to the union, and the matrimonial and insurance lawyers' to their direct client. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.1, 1.8, 1.13 (1995). The code brushes aside the complexity of the lawyers' potentially divided loyalties.
195. See American Academy of Matrimonial Lawyers, supra note 11, at 2 ("Existing codes often do not provide adequate guidance to the matrimonial lawyer. . . . [T]heir emphasis on zealous representation of individual clients . . . is not always appropriate."); Walther, supra note 99, at 54 (noting that "the conventional view [holds] that . . . the lawyer's obligation to the client would prevent the lawyer from acting in the interests of the child[,]" but that this approach "is not consistent with the practice and profoundly felt feelings of many divorce practitioners").
196. I distinguish actual from perceived harm because it may bear differently on the rationales for and implementation of particular rules. For example, if specialized codes were to allow a lawyer to disclose information to an interested third party, such as an insurer, that might directly affect the information the client is willing to risk giving the lawyer. Early communication of the rules would avoid betrayal of the client and allow the client to order his conduct. On the other hand, communication of these rules may affect the client's perception of the lawyer's loyalty to the client, and thus could affect indirectly the nature of the relationship and the quality of the representation. Realistically, rulemakers might not be able to provide a method for counteracting this perception. Talking the problem out might help but, then again, talk is cheap. The rulemakers nevertheless may promulgate the change in confidentiality simply because they do not believe the change in perception will have significant effects.
197. See Zacharias, supra note 10, at 1357-62, 1366-70 (discussing attorney-client communication and mechanisms for enforcing a requirement of communication).
198. See Report of Working Group on Client Confidentiality, 62 FORDHAM L. REV. 1015 (1994) (discussing the lawyer's responsibility in handling a will that benefits a new spouse to the disadvantage of the children of the client's former marriage); sources cited supra notes 11, 99.
199. See, e.g., Louie N. Adcock, Jr. & Laurie W. Valentine, The Estate Planner's Dilemma: Reconciling Legal, Ethical and Moral Responsibilities, FLA. B.J., Jan. 1986, at 51, 53 (discussing some potentially differing interests of the parent-testator and the child-beneficiary); John E. Donaldson, The Ethical Considerations of Representing the Elderly, 130 TR. & EST. 18, 24 (1991) (discussing potential conflicts between a testator and familial heirs); Steven H. Hobbs & Fay Wilson Hobbs, The Ethical Management of Assets for Elder Clients: A Context, Role, and Law Approach, 62 FORDHAM L. REV. 1411, 1420 (1994) (discussing family tensions inherent in elder clients' desire to "finish[ ] well").
200. See, e.g., Louie N. Adcock, Jr. & Laurie W. Valentine, The Estate Planner's Dilemma: Reconciling Legal, Ethical and Moral Responsibilities, FLA. B.J., Jan. 1986, at 51, 53 (discussing some potentially differing interests of the parent-testator and the child-beneficiary); John E. Donaldson, The Ethical Considerations of Representing the Elderly, 130 TR. & EST. 18, 24 (1991) (discussing potential conflicts between a testator and familial heirs); Steven H. Hobbs & Fay Wilson Hobbs, The Ethical Management of Assets for Elder Clients: A Context, Role, and Law Approach, 62 FORDHAM L. REV. 1411, 1420 (1994) (discussing family tensions inherent in elder clients' desire to "finish[ ] well").
201. See, e.g., Louie N. Adcock, Jr. & Laurie W. Valentine, The Estate Planner's Dilemma: Reconciling Legal, Ethical and Moral Responsibilities, FLA. B.J., Jan. 1986, at 51, 53 (discussing some potentially differing interests of the parent-testator and the child-beneficiary); John E. Donaldson, The Ethical Considerations of Representing the Elderly, 130 TR. & EST. 18, 24 (1991) (discussing potential conflicts between a testator and familial heirs); Steven H. Hobbs & Fay Wilson Hobbs, The Ethical Management of Assets for Elder Clients: A Context, Role, and Law Approach, 62 FORDHAM L. REV. 1411, 1420 (1994) (discussing family tensions inherent in elder clients' desire to "finish[ ] well").
202. See, e.g., Patricia M. Batt, The Family Unit as Client: A Means to Address the Ethical Dilemmas Confronting Elder Law Attorneys, 6 GEO. J. LEGAL ETHICS 319 (1992) (advocating family unit representation); Eleanor M. Crosby & Ira M. Leff, Ethical Considerations in Medicaid Estate Planning: An Analysis of the ABA Model Rules of Professional Conduct, 62 FORDHAM L. REV. 1503, 1516 (1994) (asking whether a lawyer for an elderly client should assist the client's "de facto agent if the agent appears to have the client's best interests in mind"); Bruce A. Green & Nancy Coleman, Foreword: Proceedings of the Conference on Ethical Issues in Representing Clients, 62 FORDHAM L. REV. 961, 965 (1994) (summarizing ethical issues in elder law discussed in course of symposium); Nancy C. Nawrocki, Ethical Challenges in Serving the Elderly Client, 72 MICH. B.J. 24, 24-26 (1993) (discussing how lawyers might react to the input of relatives of elder clients); Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1296-99 (1994) (discussing the possibility that lawyers represent an entire family unit rather than a single elderly client).
203. See, e.g., Patricia M. Batt, The Family Unit as Client: A Means to Address the Ethical Dilemmas Confronting Elder Law Attorneys, 6 GEO. J. LEGAL ETHICS 319 (1992) (advocating family unit representation); Eleanor M. Crosby & Ira M. Leff, Ethical Considerations in Medicaid Estate Planning: An Analysis of the ABA Model Rules of Professional Conduct, 62 FORDHAM L. REV. 1503, 1516 (1994) (asking whether a lawyer for an elderly client should assist the client's "de facto agent if the agent appears to have the client's best interests in mind"); Bruce A. Green & Nancy Coleman, Foreword: Proceedings of the Conference on Ethical Issues in Representing Clients, 62 FORDHAM L. REV. 961, 965 (1994) (summarizing ethical issues in elder law discussed in course of symposium); Nancy C. Nawrocki, Ethical Challenges in Serving the Elderly Client, 72 MICH. B.J. 24, 24-26 (1993) (discussing how lawyers might react to the input of relatives of elder clients); Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1296-99 (1994) (discussing the possibility that lawyers represent an entire family unit rather than a single elderly client).
204. See, e.g., Patricia M. Batt, The Family Unit as Client: A Means to Address the Ethical Dilemmas Confronting Elder Law Attorneys, 6 GEO. J. LEGAL ETHICS 319 (1992) (advocating family unit representation); Eleanor M. Crosby & Ira M. Leff, Ethical Considerations in Medicaid Estate Planning: An Analysis of the ABA Model Rules of Professional Conduct, 62 FORDHAM L. REV. 1503, 1516 (1994) (asking whether a lawyer for an elderly client should assist the client's "de facto agent if the agent appears to have the client's best interests in mind"); Bruce A. Green & Nancy Coleman, Foreword: Proceedings of the Conference on Ethical Issues in Representing Clients, 62 FORDHAM L. REV. 961, 965 (1994) (summarizing ethical issues in elder law discussed in course of symposium); Nancy C. Nawrocki, Ethical Challenges in Serving the Elderly Client, 72 MICH. B.J. 24, 24-26 (1993) (discussing how lawyers might react to the input of relatives of elder clients); Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1296-99 (1994) (discussing the possibility that lawyers represent an entire family unit rather than a single elderly client).
205. See, e.g., Patricia M. Batt, The Family Unit as Client: A Means to Address the Ethical Dilemmas Confronting Elder Law Attorneys, 6 GEO. J. LEGAL ETHICS 319 (1992) (advocating family unit representation); Eleanor M. Crosby & Ira M. Leff, Ethical Considerations in Medicaid Estate Planning: An Analysis of the ABA Model Rules of Professional Conduct, 62 FORDHAM L. REV. 1503, 1516 (1994) (asking whether a lawyer for an elderly client should assist the client's "de facto agent if the agent appears to have the client's best interests in mind"); Bruce A. Green & Nancy Coleman, Foreword: Proceedings of the Conference on Ethical Issues in Representing Clients, 62 FORDHAM L. REV. 961, 965 (1994) (summarizing ethical issues in elder law discussed in course of symposium); Nancy C. Nawrocki, Ethical Challenges in Serving the Elderly Client, 72 MICH. B.J. 24, 24-26 (1993) (discussing how lawyers might react to the input of relatives of elder clients); Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1296-99 (1994) (discussing the possibility that lawyers represent an entire family unit rather than a single elderly client).
206. See, e.g., Patricia M. Batt, The Family Unit as Client: A Means to Address the Ethical Dilemmas Confronting Elder Law Attorneys, 6 GEO. J. LEGAL ETHICS 319 (1992) (advocating family unit representation); Eleanor M. Crosby & Ira M. Leff, Ethical Considerations in Medicaid Estate Planning: An Analysis of the ABA Model Rules of Professional Conduct, 62 FORDHAM L. REV. 1503, 1516 (1994) (asking whether a lawyer for an elderly client should assist the client's "de facto agent if the agent appears to have the client's best interests in mind"); Bruce A. Green & Nancy Coleman, Foreword: Proceedings of the Conference on Ethical Issues in Representing Clients, 62 FORDHAM L. REV. 961, 965 (1994) (summarizing ethical issues in elder law discussed in course of symposium); Nancy C. Nawrocki, Ethical Challenges in Serving the Elderly Client, 72 MICH. B.J. 24, 24-26 (1993) (discussing how lawyers might react to the input of relatives of elder clients); Russell G. Pearce, Family Values and Legal Ethics: Competing Approaches to Conflicts in Representing Spouses, 62 FORDHAM L. REV. 1253, 1296-99 (1994) (discussing the possibility that lawyers represent an entire family unit rather than a single elderly client).
207. For example, the details of a divorce may poison the relationship between the husband and wife and thereby the relationship a child of the marriage can have with a parent. Similarly, a decision to disinherit a family member has implications for the family's interaction that extend far beyond the wealth of each heir.
208. How a lawyer and her client resolve a matter sometimes is as important in interpersonal relationships as the actual disposition of the assets in question. In a divorce, a contentious proceeding that reaches the same result as an amicable settlement may have more of a negative impact on future relationships among the couple and their children. Disinheriting a family member or dividing assets unequally may be more palatable to the losing heir if he knows that there is good reason for the action (such as another heir's greater need) and is involved in the drafting of the will.
209. The modern codes typically recommend that lawyers communicate with clients regarding significant matters and encompass in the notion of "furthering the client's interests" side effects of alternative decisions the client might make. See, e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.4 cmt. 2 (1995) (requiring communication with clients).
210. See id. Rule 1.14 (discussing representation of clients with a disability); see generally Stanley S. Herr, Representation of Clients with Disabilities: Issues of Ethics and Control, 17 N.Y.U. REV. L. & SOC. CHANGE 609 (1990) (examining the ethical guidelines for the legal representation of clients with mental disabilities).
211. See id. Rule 1.14 (discussing representation of clients with a disability); see generally Stanley S. Herr, Representation of Clients with Disabilities: Issues of Ethics and Control, 17 N.Y.U. REV. L. & SOC. CHANGE 609 (1990) (examining the ethical guidelines for the legal representation of clients with mental disabilities).
212. Indeed, the Model Rules seem to envision only two black and white scenarios. In the first, the client suffers from a disability but can, with some help from the lawyer, have a relatively normal attorney-client relationship and adequately act in his own interests. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14(a). In the second, the client cannot adequately act in his own interest, in which case the lawyer is instructed to seek appointment of a separate guardian or its equivalent. See id. Rule 1.14(b). These scenarios do not seem to embrace situations in which the client can make emotional, but technically rational, decisions that are nevertheless likely to hurt him in the long run - for example, the angered elder parent who disinherits the child after the child suggests moving the parent to a nursing home or the temporarily embittered divorcee who wishes to hurt the former spouse through custody limitations even though visitation would benefit both the divorcee and the child.
213. Indeed, the Model Rules seem to envision only two black and white scenarios. In the first, the client suffers from a disability but can, with some help from the lawyer, have a relatively normal attorney-client relationship and adequately act in his own interests. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.14(a). In the second, the client cannot adequately act in his own interest, in which case the lawyer is instructed to seek appointment of a separate guardian or its equivalent. See id. Rule 1.14(b). These scenarios do not seem to embrace situations in which the client can make emotional, but technically rational, decisions that are nevertheless likely to hurt him in the long run - for example, the angered elder parent who disinherits the child after the child suggests moving the parent to a nursing home or the temporarily embittered divorcee who wishes to hurt the former spouse through custody limitations even though visitation would benefit both the divorcee and the child.
214. See, e.g., id. Rule 1.2 cmt. 1 ("The lawyer should . . . defer to the client regarding . . . concern for third persons who might be adversely affected.").
215. For example, a lawyer's function in helping to establish a partnership or close corporation includes anticipating areas of dispute and obtaining some agreement, in advance, to avoid conflicting interests. If the parties determine that their interests do, or may, conflict, the lawyer typically is expected to disengage herself from the representation. See id. Rule 2.2.
216. See, e.g., Edward J. Sack, Ethics in Real Estate Regulation, PROB. & PROP., Sept.-Oct. 1993, at 51, 53 (noting, in the context of real estate transactions, the professional codes' overemphasis on a hired gun paradigm that may only be valid in criminal trial proceedings).
217. See, e.g., DEAN J. CHAMPION, THE JUVENILE JUSTICE SYSTEM: DELINQUENCY, PROCESSING, AND THE LAW 1-28, 132 (1992) (discussing origins of the juvenile justice system, but noting that juvenile court procedure "is becoming an increasingly adversarial one"); IRA M. SCHWARTZ, (IN)JUSTICE FOR JUVENILES: RETHINKING THE BEST INTERESTS OF THE CHILD 150-52 (1989) (discussing the history of juvenile courts as focusing ostensibly on rehabilitation rather than prosecution).
218. See, e.g., DEAN J. CHAMPION, THE JUVENILE JUSTICE SYSTEM: DELINQUENCY, PROCESSING, AND THE LAW 1-28, 132 (1992) (discussing origins of the juvenile justice system, but noting that juvenile court procedure "is becoming an increasingly adversarial one"); IRA M. SCHWARTZ, (IN)JUSTICE FOR JUVENILES: RETHINKING THE BEST INTERESTS OF THE CHILD 150-52 (1989) (discussing the history of juvenile courts as focusing ostensibly on rehabilitation rather than prosecution).
219. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethi-cal Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1, 9-10 (outlining ethical issues in mediation practice); Emily Kofron, Remaking the Philosophical Map? New Rules for Attorney Mediators, J. KAN. B. ASS'N, Apr. 1989, at 21 (recognizing that a different ethical outlook is needed to guide attorney-mediators because of the nonadversarial nature of their work); Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329, 358-59 (1984) (arguing for heightened focus on mutually beneficial agreements); Glen Sato, The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance - A Proposal for Some Ethical Considerations, 34 UCLA L. REV. 507, 525-26, 528 (1986) (arguing that lawyer-mediators need guidelines that emphasize fairness of results rather than zealous advocacy for clients); Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213, 219-20 (1993) (arguing that the current codes are written to reflect an adversarial state of mind and that different guidelines are needed for lawyer-mediators).
220. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethi-cal Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1, 9-10 (outlining ethical issues in mediation practice); Emily Kofron, Remaking the Philosophical Map? New Rules for Attorney Mediators, J. KAN. B. ASS'N, Apr. 1989, at 21 (recognizing that a different ethical outlook is needed to guide attorney-mediators because of the nonadversarial nature of their work); Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329, 358-59 (1984) (arguing for heightened focus on mutually beneficial agreements); Glen Sato, The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance - A Proposal for Some Ethical Considerations, 34 UCLA L. REV. 507, 525-26, 528 (1986) (arguing that lawyer-mediators need guidelines that emphasize fairness of results rather than zealous advocacy for clients); Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213, 219-20 (1993) (arguing that the current codes are written to reflect an adversarial state of mind and that different guidelines are needed for lawyer-mediators).
221. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethi-cal Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1, 9-10 (outlining ethical issues in mediation practice); Emily Kofron, Remaking the Philosophical Map? New Rules for Attorney Mediators, J. KAN. B. ASS'N, Apr. 1989, at 21 (recognizing that a different ethical outlook is needed to guide attorney-mediators because of the nonadversarial nature of their work); Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329, 358-59 (1984) (arguing for heightened focus on mutually beneficial agreements); Glen Sato, The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance - A Proposal for Some Ethical Considerations, 34 UCLA L. REV. 507, 525-26, 528 (1986) (arguing that lawyer-mediators need guidelines that emphasize fairness of results rather than zealous advocacy for clients); Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213, 219-20 (1993) (arguing that the current codes are written to reflect an adversarial state of mind and that different guidelines are needed for lawyer-mediators).
222. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethi-cal Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1, 9-10 (outlining ethical issues in mediation practice); Emily Kofron, Remaking the Philosophical Map? New Rules for Attorney Mediators, J. KAN. B. ASS'N, Apr. 1989, at 21 (recognizing that a different ethical outlook is needed to guide attorney-mediators because of the nonadversarial nature of their work); Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329, 358-59 (1984) (arguing for heightened focus on mutually beneficial agreements); Glen Sato, The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance - A Proposal for Some Ethical Considerations, 34 UCLA L. REV. 507, 525-26, 528 (1986) (arguing that lawyer-mediators need guidelines that emphasize fairness of results rather than zealous advocacy for clients); Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213, 219-20 (1993) (arguing that the current codes are written to reflect an adversarial state of mind and that different guidelines are needed for lawyer-mediators).
223. See, e.g., Robert A. Baruch Bush, The Dilemmas of Mediation Practice: A Study of Ethi-cal Dilemmas and Policy Implications, 1994 J. DISP. RESOL. 1, 9-10 (outlining ethical issues in mediation practice); Emily Kofron, Remaking the Philosophical Map? New Rules for Attorney Mediators, J. KAN. B. ASS'N, Apr. 1989, at 21 (recognizing that a different ethical outlook is needed to guide attorney-mediators because of the nonadversarial nature of their work); Leonard L. Riskin, Toward New Standards for the Neutral Lawyer in Mediation, 26 ARIZ. L. REV. 329, 358-59 (1984) (arguing for heightened focus on mutually beneficial agreements); Glen Sato, The Mediator-Lawyer: Implications for the Practice of Law and One Argument for Professional Responsibility Guidance - A Proposal for Some Ethical Considerations, 34 UCLA L. REV. 507, 525-26, 528 (1986) (arguing that lawyer-mediators need guidelines that emphasize fairness of results rather than zealous advocacy for clients); Alison Smiley, Professional Codes and Neutral Lawyering: An Emerging Standard Governing Nonrepresentational Attorney Mediation, 7 GEO. J. LEGAL ETHICS 213, 219-20 (1993) (arguing that the current codes are written to reflect an adversarial state of mind and that different guidelines are needed for lawyer-mediators).
224. Bankruptcy practice is an area in which lawyers usually must act from the traditional, adversarial posture but sometimes must acknowledge that the debtor and creditors (or debtor in possession) share interests; for example, where all parties are trying to maximize the return from the estate. See generally John D. Ayer, How to Think About Bankruptcy Ethics, 60 AM. BANKR. L.J. 355, 387 (1986) (discussing the confusing ethical role of bankruptcy attorneys). Therefore, traditional notions of the lawyer's proper role do not always fit. See id. at 357 (arguing that the professional codes do not fit bankruptcy practice well).
225. Bankruptcy practice is an area in which lawyers usually must act from the traditional, adversarial posture but sometimes must acknowledge that the debtor and creditors (or debtor in possession) share interests; for example, where all parties are trying to maximize the return from the estate. See generally John D. Ayer, How to Think About Bankruptcy Ethics, 60 AM. BANKR. L.J. 355, 387 (1986) (discussing the confusing ethical role of bankruptcy attorneys). Therefore, traditional notions of the lawyer's proper role do not always fit. See id. at 357 (arguing that the professional codes do not fit bankruptcy practice well).
226. One would expect that the issues would be complicated and unresolvable by a simple bright-line rule. For example, in the area of social services law, one might expect the government to be cooperative before it has made a decision to deny or oppose the grant of benefits; after all, it is the government's function to make sure benefits and entitlements are distributed to those who need them. Once the government has decided to disqualify the applicant, however, the government is likely to stand by its decision forcefully. Even this demarcation is not ironclad. Some agencies may not take seriously their mission to distribute benefits. Thus, for example, the Immigration and Naturalization Service may tend to seek ways to deny applications for entry routinely, or may deny them routinely for applicants from particular countries. Alternatively, the position of the agency may shift over time, depending on the political party of the administration in power or international events. Thus, any ethical regulation that requires lawyers to take account of the potentially nonadversarial nature of the opponent must include a degree of flexibility.
227. See supra notes 119-121 and accompanying text. Of course, the lawyer may have some control over the "means" of carrying out the representation, but the lawyer must follow the client's view of the objectives and the significance of harm to third parties. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2 cmt. (1995). Indeed, with respect to the familial nontraditional adversary who might wish to help the client, the client could instruct the lawyer to refuse to share information about the client and thus maintain absolute confidentiality. See id. Rule 1.6. The lawyer's only recourse probably would be to resign. See, e.g., id. Rule 1.16 (allowing lawyer to withdraw under some circumstances if "a client insists on pursuing an objective that the lawyer considers repugnant or imprudent").
228. See supra notes 119-121 and accompanying text. Of course, the lawyer may have some control over the "means" of carrying out the representation, but the lawyer must follow the client's view of the objectives and the significance of harm to third parties. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2 cmt. (1995). Indeed, with respect to the familial nontraditional adversary who might wish to help the client, the client could instruct the lawyer to refuse to share information about the client and thus maintain absolute confidentiality. See id. Rule 1.6. The lawyer's only recourse probably would be to resign. See, e.g., id. Rule 1.16 (allowing lawyer to withdraw under some circumstances if "a client insists on pursuing an objective that the lawyer considers repugnant or imprudent").
229. See supra notes 119-121 and accompanying text. Of course, the lawyer may have some control over the "means" of carrying out the representation, but the lawyer must follow the client's view of the objectives and the significance of harm to third parties. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2 cmt. (1995). Indeed, with respect to the familial nontraditional adversary who might wish to help the client, the client could instruct the lawyer to refuse to share information about the client and thus maintain absolute confidentiality. See id. Rule 1.6. The lawyer's only recourse probably would be to resign. See, e.g., id. Rule 1.16 (allowing lawyer to withdraw under some circumstances if "a client insists on pursuing an objective that the lawyer considers repugnant or imprudent").
230. The cultural differences between lawyer and client work both ways and may interfere dramatically both in the establishment of a meaningful attorney-client relationship and in the client's taking full advantage of American legal process. At the simplest level, a foreign client may for language, sophistication, or cultural reasons simply not be able to fathom the American way of proceeding. See Hersh, supra note 97, at 20 (arguing for special attention to confidentiality in immigration setting because of clients' hesitation to provide information). For example, a client may not understand that a regulatory agency's denial of benefits does not end the issue. But cultural views may run far deeper, even to the sense that litigation is not a proper way of addressing particular types of problems. In a recent piece about lawyers who represent foreign residents in class action litigation within the United States, Michael Maloney and Allison Blizzard describe the difficulty of teaching such clients about American legal process and of encouraging them to make legal decisions based on the American view of their own best interests. See Michael J. Maloney & Allison Taylor Blizzard, Ethical Issues in the Context of International Litigation: "Where Angels Fear to Tread", 36 S. TEX. L. REV. 933, 956-60, 963 (1995).
231. The cultural differences between lawyer and client work both ways and may interfere dramatically both in the establishment of a meaningful attorney-client relationship and in the client's taking full advantage of American legal process. At the simplest level, a foreign client may for language, sophistication, or cultural reasons simply not be able to fathom the American way of proceeding. See Hersh, supra note 97, at 20 (arguing for special attention to confidentiality in immigration setting because of clients' hesitation to provide information). For example, a client may not understand that a regulatory agency's denial of benefits does not end the issue. But cultural views may run far deeper, even to the sense that litigation is not a proper way of addressing particular types of problems. In a recent piece about lawyers who represent foreign residents in class action litigation within the United States, Michael Maloney and Allison Blizzard describe the difficulty of teaching such clients about American legal process and of encouraging them to make legal decisions based on the American view of their own best interests. See Michael J. Maloney & Allison Taylor Blizzard, Ethical Issues in the Context of International Litigation: "Where Angels Fear to Tread", 36 S. TEX. L. REV. 933, 956-60, 963 (1995).
232. See, e.g., F. LEE BAILEY & HENRY B. ROTHBLATT, HANDLING JUVENILE DELINQUENCY CASES 31 (1982) ("A juvenile is generally considered capable of making decisions regarding his case. This, however, may not be so if the individual is very young or is seriously disturbed."); Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 FORDHAM L. REV. 1473, 1475-76 (1996) (discussing tension between empowering child by giving adequate weight to the child's wishes and intervening for the child's own good); see generally Bruce A. Green & Bernardine Dohrn, Foreword: Children and the Ethical Practice of Law, 64 FORDHAM L. REV. 1281, 1287-88 (1996) (discussing problems that lawyers face in defining their role when representing juveniles).
233. See, e.g., F. LEE BAILEY & HENRY B. ROTHBLATT, HANDLING JUVENILE DELINQUENCY CASES 31 (1982) ("A juvenile is generally considered capable of making decisions regarding his case. This, however, may not be so if the individual is very young or is seriously disturbed."); Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 FORDHAM L. REV. 1473, 1475-76 (1996) (discussing tension between empowering child by giving adequate weight to the child's wishes and intervening for the child's own good); see generally Bruce A. Green & Bernardine Dohrn, Foreword: Children and the Ethical Practice of Law, 64 FORDHAM L. REV. 1281, 1287-88 (1996) (discussing problems that lawyers face in defining their role when representing juveniles).
234. See, e.g., F. LEE BAILEY & HENRY B. ROTHBLATT, HANDLING JUVENILE DELINQUENCY CASES 31 (1982) ("A juvenile is generally considered capable of making decisions regarding his case. This, however, may not be so if the individual is very young or is seriously disturbed."); Peter Margulies, The Lawyer as Caregiver: Child Client's Competence in Context, 64 FORDHAM L. REV. 1473, 1475-76 (1996) (discussing tension between empowering child by giving adequate weight to the child's wishes and intervening for the child's own good); see generally Bruce A. Green & Bernardine Dohrn, Foreword: Children and the Ethical Practice of Law, 64 FORDHAM L. REV. 1281, 1287-88 (1996) (discussing problems that lawyers face in defining their role when representing juveniles).
235. See, e.g., Crosby & Leff, supra note 115, at 1516 (discussing competence issues with respect to elder clients); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 FORDHAM L. REV. 1073, 1073-76 (1994) (discussing problems of decisionmaking with and for elderly clients of questionable competence); Report of Working Group on Client Capacity, 62 FORDHAM L. REV. 1003, 1006-07 (1994) (discussing problems relating to determining whether a client's capacity is impaired); Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515, 517-18 (discussing difficulties faced by lawyers representing incompetent clients); Natalie Wolf, The Ethical Dilemmas Faced by Attorneys Representing the Mentally Ill in Civil Commitment Proceedings, 6 GEO. J. LEGAL ETHICS 163, 171-72 (1992) (discussing tension between lawyer's possible roles as guardian and advocate in representing the mentally ill in civil commitment proceedings).
236. See, e.g., Crosby & Leff, supra note 115, at 1516 (discussing competence issues with respect to elder clients); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 FORDHAM L. REV. 1073, 1073-76 (1994) (discussing problems of decisionmaking with and for elderly clients of questionable competence); Report of Working Group on Client Capacity, 62 FORDHAM L. REV. 1003, 1006-07 (1994) (discussing problems relating to determining whether a client's capacity is impaired); Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515, 517-18 (discussing difficulties faced by lawyers representing incompetent clients); Natalie Wolf, The Ethical Dilemmas Faced by Attorneys Representing the Mentally Ill in Civil Commitment Proceedings, 6 GEO. J. LEGAL ETHICS 163, 171-72 (1992) (discussing tension between lawyer's possible roles as guardian and advocate in representing the mentally ill in civil commitment proceedings).
237. See, e.g., Crosby & Leff, supra note 115, at 1516 (discussing competence issues with respect to elder clients); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 FORDHAM L. REV. 1073, 1073-76 (1994) (discussing problems of decisionmaking with and for elderly clients of questionable competence); Report of Working Group on Client Capacity, 62 FORDHAM L. REV. 1003, 1006-07 (1994) (discussing problems relating to determining whether a client's capacity is impaired); Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515, 517-18 (discussing difficulties faced by lawyers representing incompetent clients); Natalie Wolf, The Ethical Dilemmas Faced by Attorneys Representing the Mentally Ill in Civil Commitment Proceedings, 6 GEO. J. LEGAL ETHICS 163, 171-72 (1992) (discussing tension between lawyer's possible roles as guardian and advocate in representing the mentally ill in civil commitment proceedings).
238. See, e.g., Crosby & Leff, supra note 115, at 1516 (discussing competence issues with respect to elder clients); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 FORDHAM L. REV. 1073, 1073-76 (1994) (discussing problems of decisionmaking with and for elderly clients of questionable competence); Report of Working Group on Client Capacity, 62 FORDHAM L. REV. 1003, 1006-07 (1994) (discussing problems relating to determining whether a client's capacity is impaired); Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515, 517-18 (discussing difficulties faced by lawyers representing incompetent clients); Natalie Wolf, The Ethical Dilemmas Faced by Attorneys Representing the Mentally Ill in Civil Commitment Proceedings, 6 GEO. J. LEGAL ETHICS 163, 171-72 (1992) (discussing tension between lawyer's possible roles as guardian and advocate in representing the mentally ill in civil commitment proceedings).
239. See, e.g., Crosby & Leff, supra note 115, at 1516 (discussing competence issues with respect to elder clients); Peter Margulies, Access, Connection, and Voice: A Contextual Approach to Representing Senior Citizens of Questionable Capacity, 62 FORDHAM L. REV. 1073, 1073-76 (1994) (discussing problems of decisionmaking with and for elderly clients of questionable competence); Report of Working Group on Client Capacity, 62 FORDHAM L. REV. 1003, 1006-07 (1994) (discussing problems relating to determining whether a client's capacity is impaired); Paul R. Tremblay, On Persuasion and Paternalism: Lawyer Decisionmaking and the Questionably Competent Client, 1987 UTAH L. REV. 515, 517-18 (discussing difficulties faced by lawyers representing incompetent clients); Natalie Wolf, The Ethical Dilemmas Faced by Attorneys Representing the Mentally Ill in Civil Commitment Proceedings, 6 GEO. J. LEGAL ETHICS 163, 171-72 (1992) (discussing tension between lawyer's possible roles as guardian and advocate in representing the mentally ill in civil commitment proceedings).
240. See Report of Working Group on Intergenerational Conflicts, 62 FORDHAM L. REV. 1037 (1994) (discussing problem of obtaining and ascertaining consent where elder client will abide by whatever decision the lawyer suggests).
241. In the traditional setting, lawyers typically can avoid making their own moral judgments by deferring to the clients' choice. Cf., e.g., MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2 cmt. ("In questions of means, the lawyer should assume responsibility for technical and legal tactical issues, but should defer to the client regarding such questions as the expense to be incurred and concern for third persons who might be adversely affected.").
242. Typically, prosecutors are conceptualized as representing the interests of the state, the victim, the defendant, and society as a whole in their quest to "do justice." See Zacharias, supra note 2, at 57 (discussing reality that the prosecutor "has no single client").
243. See, e.g., MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-13 (1979) (government lawyers must "seek justice"); MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.8 cmt. 1 (government lawyer is "minister of justice").
244. See, e.g., MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-13 (1979) (government lawyers must "seek justice"); MODEL RULES OF PROFESSIONAL CONDUCT Rule 3.8 cmt. 1 (government lawyer is "minister of justice").
245. See Zacharias, supra note 3, at 173-74 (discussing clients' varying mental states).
246. See supra note 87; see also Elizabeth G. Thornburg, Sanctifying Secrecy: The Mythology of the Corporate Attorney-Client Privilege, 69 NOTRE DAME L. REV. 157 (1993) (arguing for the elimination of the corporate attorney-client privilege).
247. See supra Part III.A.
248. See Edward A. Adams, Thrift Litigation Fallout: Suits Increasing; Firm Grip on Lawyers Sought, N. Y. L.J., June 18, 1992, at 5 (noting suits pressing a Kaye, Scholer theory brought by other regulatory agencies, particularly the Resolution Trust Corporation and Federal Deposit Insurance Corporation).
249. See, e.g., Futrell, supra note 100, at 835 (arguing that current professional standards are "based on a tradition of advising clients to offer as little information as possible," which runs counter to the operation of "self-reporting schemes of the regulatory state"). From time to time, commentators have argued that systemic interests in upholding the legal system itself justify emphasizing the duty of lawyers as "officers of the court" over their duties to clients even in traditional areas of practice. See, e.g., Eric E. Jorstad, Litigation Ethics: A Niebuhrian View of the Adversarial Legal System, 99 YALE L.J. 1089, 1105-06 (1990) (arguing that lawyers' ethical role should be termed in terms of duties to the legal system and society, rather than courts, clients, or third parties per se); Medina, supra note 37, at 708 (arguing special obligation of appellate advocates to be candid because "the harm caused by a misinformed [appellate] court can extend beyond the parties"). Because this view seems to have been soundly rejected by all modern professional regulators, I do not discuss it here. 141 See 31 C.F.R. § 10.34 (1996) (limiting lawyers before the IRS to taking positions that have a "realistic possibility of being sustained on [their] merits," even if other positions are nonfrivolous within the meaning of the traditional ethics codes).
250. See, e.g., Futrell, supra note 100, at 835 (arguing that current professional standards are "based on a tradition of advising clients to offer as little information as possible," which runs counter to the operation of "self-reporting schemes of the regulatory state"). From time to time, commentators have argued that systemic interests in upholding the legal system itself justify emphasizing the duty of lawyers as "officers of the court" over their duties to clients even in traditional areas of practice. See, e.g., Eric E. Jorstad, Litigation Ethics: A Niebuhrian View of the Adversarial Legal System, 99 YALE L.J. 1089, 1105-06 (1990) (arguing that lawyers' ethical role should be termed in terms of duties to the legal system and society, rather than courts, clients, or third parties per se); Medina, supra note 37, at 708 (arguing special obligation of appellate advocates to be
251. See, e.g., Futrell, supra note 100, at 835 (arguing that current professional standards are "based on a tradition of advising clients to offer as little information as possible," which runs counter to the operation of "self-reporting schemes of the regulatory state"). From time to time, commentators have argued that systemic interests in upholding the legal system itself justify emphasizing the duty of lawyers as "officers of the court" over their duties to clients even in traditional areas of practice. See, e.g., Eric E. Jorstad, Litigation Ethics: A Niebuhrian View of the Adversarial Legal System, 99 YALE L.J. 1089, 1105-06 (1990) (arguing that lawyers' ethical role should be termed in terms of duties to the legal system and society, rather than courts, clients, or third parties per se); Medina, supra note 37, at 708 (arguing special obligation of appellate advocates to be candid because "the harm caused by a misinformed [appellate] court can extend beyond the parties"). Because this view seems to have been soundly rejected by all modern professional regulators, I do not discuss it here. 141 See 31 C.F.R. § 10.34 (1996) (limiting lawyers before the IRS to taking positions that have a "realistic possibility of being sustained on [their] merits," even if other positions are nonfrivolous within the meaning of the traditional ethics codes).
252. Whether for this reason or some other, the Immigration and Naturalization Service apparently has also adopted special regulations governing the ethics of lawyers. See 8 C.F.R. § 292.3(a)(3) (1992) (providing for sanctions, inter alia, against any lawyer who "willfully misleads, misinforms, or deceives an officer or employee of the Department of Justice concerning any material and relevant fact in connection with a case"); cf. Charles Foster, We Are Different, IMMIGR. J., Mar.-Apr. 1982, at 3, 25 (president of immigration bar, arguing that the immigration lawyer must act more as an officer of the court than the zealous advocate to insure that the system works properly).
253. See, e.g., Spivey v. Pulley, 526 N.Y.S.2d 145, 147 (N.Y. App. Div. 1988) (finding lack of privity between attorney-draftor of will and executor); Viscardi v. Lerner, 510 N.Y.S.2d 183, 185 (N.Y. App. Div. 1986) (same for estate beneficiaries). Of course, this theory might be conceptualized based on the lawyer's traditional role. In other words, the lawyer owes her sole obligation to the client, who in this situation is the testator. This theory, however, is something of a fiction because the client no longer exists and therefore no longer can guide the lawyer's action in the representation.
254. See, e.g., Maureen H. Burke, The Duty of Confidentiality and Disclosing Corporate Misconduct, 36 BUS. LAW. 239, 253 (1981) (suggesting that, because corporations wield tremendous social and economic power, the public looks to corporate lawyers as the "guardians of the corporate conscience"); Harvey Frank, A Higher Duty: A New Look at the Ethics of the Corporate Lawyer, 26 CLEV. ST. L. REV. 337, 345-50 (1977) (arguing for special duty of corporate lawyers to protect the public).
255. See, e.g., Maureen H. Burke, The Duty of Confidentiality and Disclosing Corporate Misconduct, 36 BUS. LAW. 239, 253 (1981) (suggesting that, because corporations wield tremendous social and economic power, the public looks to corporate lawyers as the "guardians of the corporate conscience"); Harvey Frank, A Higher Duty: A New Look at the Ethics of the Corporate Lawyer, 26 CLEV. ST. L. REV. 337, 345-50 (1977) (arguing for special duty of corporate lawyers to protect the public).
256. The developments in the Kaye, Scholer case have, for example, prompted a groundswell of reaction within the legal profession, ranging from scholarly writing to bar association debates to an unprecedented number of symposia and continuing legal education programs on the subject. See Zacharias, supra note 10, at 1374-76 (discussing the reaction to Kaye, Scholer) and sources cited therein.
257. See supra note 31 and accompanying text.
258. See, e.g., Jean A. Mortland, Attorneys as Real Estate Brokers: Ethical Considerations, 25 REAL PROP. PROB. & TR. J. 755, 767, 770 (1991) (arguing that the ethical duties of lawyers and lawyer-brokers conflict); Sack, supra note 123, at 51 (arguing that the Model Rules fail to address real estate practice because it focuses on litigation); cf. Zacharias, supra note 7, at 393 n.224 (empirical study noting real estate lawyer's insistence that confidentiality rules did not apply to him because he did not practice litigation).
259. See, e.g., Jean A. Mortland, Attorneys as Real Estate Brokers: Ethical Considerations, 25 REAL PROP. PROB. & TR. J. 755, 767, 770 (1991) (arguing that the ethical duties of lawyers and lawyer-brokers conflict); Sack, supra note 123, at 51 (arguing that the Model Rules fail to address real estate practice because it focuses on litigation); cf. Zacharias, supra note 7, at 393 n.224 (empirical study noting real estate lawyer's insistence that confidentiality rules did not apply to him because he did not practice litigation).
260. See, e.g., Jean A. Mortland, Attorneys as Real Estate Brokers: Ethical Considerations, 25 REAL PROP. PROB. & TR. J. 755, 767, 770 (1991) (arguing that the ethical duties of lawyers and lawyer-brokers conflict); Sack, supra note 123, at 51 (arguing that the Model Rules fail to address real estate practice because it focuses on litigation); cf. Zacharias, supra note 7, at 393 n.224 (empirical study noting real estate lawyer's insistence that confidentiality rules did not apply to him because he did not practice litigation).
261. See, e.g., FREDRIC DANNEN, HIT MEN: POWER BROKERS AND FAST MONEY INSIDE THE Music BUSINESS 25-26 (1990); Fraley & Harwell, supra note 97, at 87 (discussing the problem of lawyers competing with nonlawyer sports agents); Edwin F. McPherson, Conflicts in the Entertainment Industry? . . . Notl, ENT. & SPORTS L., Winter 1993, at 5, 5-7.
262. See, e.g., FREDRIC DANNEN, HIT MEN: POWER BROKERS AND FAST MONEY INSIDE THE Music BUSINESS 25-26 (1990); Fraley & Harwell, supra note 97, at 87 (discussing the problem of lawyers competing with nonlawyer sports agents); Edwin F. McPherson, Conflicts in the Entertainment Industry? . . . Notl, ENT. & SPORTS L., Winter 1993, at 5, 5-7.
263. See, e.g., FREDRIC DANNEN, HIT MEN: POWER BROKERS AND FAST MONEY INSIDE THE Music BUSINESS 25-26 (1990); Fraley & Harwell, supra note 97, at 87 (discussing the problem of lawyers competing with nonlawyer sports agents); Edwin F. McPherson, Conflicts in the Entertainment Industry? . . . Notl, ENT. & SPORTS L., Winter 1993, at 5, 5-7.
264. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.1 (1995) (regulating solicitation of clients); id. Rule 7.2 (regulating advertising).
265. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 7.1 (1995) (regulating solicitation of clients); id. Rule 7.2 (regulating advertising).
266. See id. Rule 4.1 (forbidding lawyer misrepresentations); id. Rule 7.1 (requiring candor in solicitation of clients).
267. See id. Rule 4.1 (forbidding lawyer misrepresentations); id. Rule 7.1 (requiring candor in solicitation of clients).
268. A prospective client of an agent-lawyer may, for example, place more reliance upon her promises than those of nonlawyer agents because the lawyer is supposed to be more trustworthy. Alternatively, a client of a broker-lawyer may expect the lawyer to follow confidentiality and conflict of interest rules strictly, even though real estate brokers may follow different principles.
269. Thus, the athlete-client may rely on the lawyer to lie in the course of negotiations in the same way as nonlawyer sports agents.
270. By facilitation function, I refer to the process by which codes make it easier for participants in the system to communicate with each other and understand how to interpret each others' communication and conduct. See Zacharias, supra note 56, at 266 (discussing facilitation aspects of professional codes).
271. See sources cited supra note 97.
272. See id. at 257-65.
273. See id. at 233.
274. See, e.g., Steve France, Unhappy Pioneers: S&L Lawyers Discover a "New World" of Liability, 7 GEO. J. LEGAL ETHICS 725, 728-34 (1994) (discussing evolution of liability rules governing corporate lawyers).
275. Ted Schneyer illustrates this point admirably in his article, Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEX. L. REV. 639 (1994). Professor Schneyer analyzes recent developments involving the ethical obligations of lawyers representing clients with respect to banking regulation. See id. Schneyer concludes initially that self-regulation by the bar - in particular, the current universal ethics codes - is ineffective because of procedural and remedial limitations of state disciplinary bodies and because of the vagueness of the rules. See id. at 651, 666, 674-75. To remedy this ineffectiveness, however, Schneyer does not suggest simply adding specificity to the general codes, because Schneyer recognizes that the universal code, in nature, is "anti-regulatory." See id. at 669. Schneyer instead favors other regulation developed jointly by banking agencies and the bar that would focus more particularly on the peculiarities of banking practice. See id. at 671-75; cf. Silver & Syverud, supra note 107, at 296, 304 (describing how insurance lawyers' ethical obligations often can be regulated by contractual agreements between the lawyer and the insured, the lawyer and the insurer, and the insurer and the insured).
276. Ted Schneyer illustrates this point admirably in his article, Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEX. L. REV. 639 (1994). Professor Schneyer analyzes recent developments involving the ethical obligations of lawyers representing clients with respect to banking regulation. See id. Schneyer concludes initially that self-regulation by the bar - in particular, the current universal ethics codes - is ineffective because of procedural and remedial limitations of state disciplinary bodies and because of the vagueness of the rules. See id. at 651, 666, 674-75. To remedy this ineffectiveness, however, Schneyer does not suggest simply adding specificity to the general codes, because Schneyer recognizes that the universal code, in nature, is "anti-regulatory." See id. at 669. Schneyer instead favors other regulation developed jointly by banking agencies and the bar that would focus more particularly on the peculiarities of banking practice. See id. at 671-75; cf. Silver & Syverud, supra note 107, at 296, 304 (describing how insurance lawyers' ethical obligations often can be regulated by contractual agreements between the lawyer and the insured, the lawyer and the insurer, and the insurer and the insured).
277. Ted Schneyer illustrates this point admirably in his article, Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEX. L. REV. 639 (1994). Professor Schneyer analyzes recent developments involving the ethical obligations of lawyers representing clients with respect to banking regulation. See id. Schneyer concludes initially that self-regulation by the bar - in particular, the current universal ethics codes - is ineffective because of procedural and remedial limitations of state disciplinary bodies and because of the vagueness of the rules. See id. at 651, 666, 674-75. To remedy this ineffectiveness, however, Schneyer does not suggest simply adding specificity to the general codes, because Schneyer recognizes that the universal code, in nature, is "anti-regulatory." See id. at 669. Schneyer instead favors other regulation developed jointly by banking agencies and the bar that would focus more particularly on the peculiarities of banking practice. See id. at 671-75; cf. Silver & Syverud, supra note 107, at 296, 304 (describing how insurance lawyers' ethical obligations often can be regulated by contractual agreements between the lawyer and the insured, the lawyer and the insurer, and the insurer and the insured).
278. Ted Schneyer illustrates this point admirably in his article, Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEX. L. REV. 639 (1994). Professor Schneyer analyzes recent developments involving the ethical obligations of lawyers representing clients with respect to banking regulation. See id. Schneyer concludes initially that self-regulation by the bar - in particular, the current universal ethics codes - is ineffective because of procedural and remedial limitations of state disciplinary bodies and because of the vagueness of the rules. See id. at 651, 666, 674-75. To remedy this ineffectiveness, however, Schneyer does not suggest simply adding specificity to the general codes, because Schneyer recognizes that the universal code, in nature, is "anti-regulatory." See id. at 669. Schneyer instead favors other regulation developed jointly by banking agencies and the bar that would focus more particularly on the peculiarities of banking practice. See id. at 671-75; cf. Silver & Syverud, supra note 107, at 296, 304 (describing how insurance lawyers' ethical obligations often can be regulated by contractual agreements between the lawyer and the insured, the lawyer and the insurer, and the insurer and the insured).
279. Ted Schneyer illustrates this point admirably in his article, Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEX. L. REV. 639 (1994). Professor Schneyer analyzes recent developments involving the ethical obligations of lawyers representing clients with respect to banking regulation. See id. Schneyer concludes initially that self-regulation by the bar - in particular, the current universal ethics codes - is ineffective because of procedural and remedial limitations of state disciplinary bodies and because of the vagueness of the rules. See id. at 651, 666, 674-75. To remedy this ineffectiveness, however, Schneyer does not suggest simply adding specificity to the general codes, because Schneyer recognizes that the universal code, in nature, is "anti-regulatory." See id. at 669. Schneyer instead favors other regulation developed jointly by banking agencies and the bar that would focus more particularly on the peculiarities of banking practice. See id. at 671-75; cf. Silver & Syverud, supra note 107, at 296, 304 (describing how insurance lawyers' ethical obligations often can be regulated by contractual agreements between the lawyer and the insured, the lawyer and the insurer, and the insurer and the insured).
280. Ted Schneyer illustrates this point admirably in his article, Ted Schneyer, From Self-Regulation to Bar Corporatism: What the S&L Crisis Means for the Regulation of Lawyers, 35 S. TEX. L. REV. 639 (1994). Professor Schneyer analyzes recent developments involving the ethical obligations of lawyers representing clients with respect to banking regulation. See id. Schneyer concludes initially that self-regulation by the bar - in particular, the current universal ethics codes - is ineffective because of procedural and remedial limitations of state disciplinary bodies and because of the vagueness of the rules. See id. at 651, 666, 674-75. To remedy this ineffectiveness, however, Schneyer does not suggest simply adding specificity to the general codes, because Schneyer recognizes that the universal code, in nature, is "anti-regulatory." See id. at 669. Schneyer instead favors other regulation developed jointly by banking agencies and the bar that would focus more particularly on the peculiarities of banking practice. See id. at 671-75; cf. Silver & Syverud, supra note 107, at 296, 304 (describing how insurance lawyers' ethical obligations often can be regulated by contractual agreements between the lawyer and the insured, the lawyer and the insurer, and the insurer and the insured).
281. Cf. Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885, 946-47 (1996) (arguing for greater reliance on a common law regulation of lawyers' ethics).
282. See Joel C. Dobris, Ethical Problems for Lawyers upon Trust Terminations: Conflicts of Interest, 38 U. MIAMI L. REV. 1, 5 (1983) (predicting the development of special-purpose codes promulgated by specialty bars to supplement the general professional codes); John H. Martin, Professional Responsibility and Probate Practices, 1975 WIS. L. REV. 911, 913-16 (discussing American Bar Association section adoption of a "Statement of Principles Regarding Probate Practices and Expenses" designed to supplement the Model Code and suggesting further supplements to the statement of principles); Schneyer, supra note 159, at 667 (discussing use of protocols).
283. See Joel C. Dobris, Ethical Problems for Lawyers upon Trust Terminations: Conflicts of Interest, 38 U. MIAMI L. REV. 1, 5 (1983) (predicting the development of special-purpose codes promulgated by specialty bars to supplement the general professional codes); John H. Martin, Professional Responsibility and Probate Practices, 1975 WIS. L. REV. 911, 913-16 (discussing American Bar Association section adoption of a "Statement of Principles Regarding Probate Practices and Expenses" designed to supplement the Model Code and suggesting further supplements to the statement of principles); Schneyer, supra note 159, at 667 (discussing use of protocols).
284. See Joel C. Dobris, Ethical Problems for Lawyers upon Trust Terminations: Conflicts of Interest, 38 U. MIAMI L. REV. 1, 5 (1983) (predicting the development of special-purpose codes promulgated by specialty bars to supplement the general professional codes); John H. Martin, Professional Responsibility and Probate Practices, 1975 WIS. L. REV. 911, 913-16 (discussing American Bar Association section adoption of a "Statement of Principles Regarding Probate Practices and Expenses" designed to supplement the Model Code and suggesting further supplements to the statement of principles); Schneyer, supra note 159, at 667 (discussing use of protocols).
285. In other words, substantive law standards typically respond to alleged wrongful acts by specific lawyers, rather than attempting to guide lawyer behavior before it occurs. Thus, while standards may develop over time through the judicial process, lawyers' only recourse in the interim is to extrapolate from fact-specific decisions in an effort to determine what conduct is appropriate in other contexts. This hardly is sufficient guidance for attorneys.
286. Courts historically have exhibited confusion over the appropriate relationship between substantive standards and ethics codes. They have tended to distance themselves from ethics regulators, holding that the rules that courts set are distinct from ethical standards. See, e.g., Imbler v. Pachtman, 424 U.S. 409, 428-29 (1976) (noting that professional disciplinary acts will constrain prosecutorial misconduct even if judicial standards do not). Thus, for example, judicial decisions disqualifying lawyers tend to be termed minimum legal standards rather than lodestars for ethical conduct. Similarly, in implementing standards governing contacts with regulated persons, courts have distinguished their rulings from the mandates of governing ethics codes. See, e.g., United States v. Hammad, 846 F.2d 854, 859 (2d Cir.) (holding that the ethics codes are "designed to safeguard the integrity of the profession" and therefore provide higher standards than those imposed by the court as a matter of constitutional and substantive law), modified, 858 F.2d 834 (2d Cir. 1988). These practices may stem from the difficulty of "enforcing" generalized ethics standards in a judicial setting or more fundamentally from a recognition that the courts and the bar do not share a single vision of what constitutes professional behavior. See Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389, 1486 (1992) (discussing the different visions of the profession held by courts and state bar associations).
287. For ethics standards to make sense, code drafters need to identify both the regulatory purposes underlying the code as a whole and the purposes underlying specific rules or reforms. See Zacharias, supra note 56, at 285. Only in that way can the drafters prioritize conflicting interests and harmonize the whole body of rules to avoid sending lawyers and clients conflicting signals. See id.
288. For example, a reasonableness standard.
289. Thus, for example, a code that provides generally for loyalty to clients, extreme loyalty by criminal defense attorneys, a responsibility to the integrity of the tax system on the part of tax lawyers, and concern for children and potential reconciliation in matrimonial matters may send conflicting signals.
290. See Zacharias, supra note 56, at 261-63 (discussing effect of specificity in codes on moral introspection and behavior).
291. Consider, for example, ethics in matrimonial practice. It may be confusing, or worse, for the general codes to instruct matrimonial lawyers in client-centered advocacy while a specialized supplement requires matrimonial lawyers to consider the best interests of the child. See, e.g., American Academy of Matrimonial Lawyers, supra note 11, at 28 ("In representing a parent, a lawyer should consider the welfare of children.").
292. For example, the American Bar Association's separate, advisory standards for criminal defense attorneys and prosecutors purport simply to explain or flesh out the basic model codes. AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE xiv (3d ed. 1993); id. Standard 3-1.1 (Prosecution Function Standard); id. Standard 4-1.1 cmt. (Defense Function Standard). In reality, however, the standards were drafted by different people than were the codes and, in significant respects, go far beyond what the codes require. See, e.g., id. Standard 3-3.5(b) (Prosecution Function Standard) (forbidding the prosecutor to make statements in the grand jury room that would be inadmissible at trial); id. Standard 4-4.1(a) (Defense Function Standard) (imposing specific duties to investigate upon defense counsel).
293. For example, the American Bar Association's separate, advisory standards for criminal defense attorneys and prosecutors purport simply to explain or flesh out the basic model codes. AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE xiv (3d ed. 1993); id. Standard 3-1.1 (Prosecution Function Standard); id. Standard 4-1.1 cmt. (Defense Function Standard). In reality, however, the standards were drafted by different people than were the codes and, in significant respects, go far beyond what the codes require. See, e.g., id. Standard 3-3.5(b) (Prosecution Function Standard) (forbidding the prosecutor to make statements in the grand jury room that would be inadmissible at trial); id. Standard 4-4.1(a) (Defense Function Standard) (imposing specific duties to investigate upon defense counsel).
294. For example, the American Bar Association's separate, advisory standards for criminal defense attorneys and prosecutors purport simply to explain or flesh out the basic model codes. AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE xiv (3d ed. 1993); id. Standard 3-1.1 (Prosecution Function Standard); id. Standard 4-1.1 cmt. (Defense Function Standard). In reality, however, the standards were drafted by different people than were the codes and, in significant respects, go far beyond what the codes require. See, e.g., id. Standard 3-3.5(b) (Prosecution Function Standard) (forbidding the prosecutor to make statements in the grand jury room that would be inadmissible at trial); id. Standard 4-4.1(a) (Defense Function Standard) (imposing specific duties to investigate upon defense counsel).
295. For example, the American Bar Association's separate, advisory standards for criminal defense attorneys and prosecutors purport simply to explain or flesh out the basic model codes. AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE xiv (3d ed. 1993); id. Standard 3-1.1 (Prosecution Function Standard); id. Standard 4-1.1 cmt. (Defense Function Standard). In reality, however, the standards were drafted by different people than were the codes and, in significant respects, go far beyond what the codes require. See, e.g., id. Standard 3-3.5(b) (Prosecution Function Standard) (forbidding the prosecutor to make statements in the grand jury room that would be inadmissible at trial); id. Standard 4-4.1(a) (Defense Function Standard) (imposing specific duties to investigate upon defense counsel).
296. For example, the American Bar Association's separate, advisory standards for criminal defense attorneys and prosecutors purport simply to explain or flesh out the basic model codes. AMERICAN BAR ASSOCIATION STANDARDS FOR CRIMINAL JUSTICE xiv (3d ed. 1993); id. Standard 3-1.1 (Prosecution Function Standard); id. Standard 4-1.1 cmt. (Defense Function Standard). In reality, however, the standards were drafted by different people than were the codes and, in significant respects, go far beyond what the codes require. See, e.g., id. Standard 3-3.5(b) (Prosecution Function Standard) (forbidding the prosecutor to make statements in the grand jury room that would be inadmissible at trial); id. Standard 4-4.1(a) (Defense Function Standard) (imposing specific duties to investigate upon defense counsel).
297. For example, Treasury Department regulations that impose a "dual responsibility" on tax lawyers - to clients and the tax system - seem to ignore the call of basic ethics codes for lawyers to "know only their client." See supra notes 9-10 and accompanying text.
298. This may help explain why specialized model code supplements, like the American Bar Association's standards relating to the criminal prosecution and defense functions, tend not to gain widespread acceptance. See Zacharias, supra note 2, at 51 n.23, 75 n.131 (discussing the nonadoption of the criminal justice standards).
299. See Schneyer, supra note 159, at 675 (predicting the development of new regimes of professional ethics in areas involving "specialized agenc[ies] . . . with the power to enlist lawyers and law firms as regulatory gatekeepers"); see also Mark H. Aultman, Cracking Codes, 7 GEO. J. LEGAL ETHICS 735, 735 (1994) (arguing that, in practice, professional ethics is already specialized because specialty bars integrate different approaches resulting, inter alia, from special regulatory requirements).
300. See Schneyer, supra note 159, at 675 (predicting the development of new regimes of professional ethics in areas involving "specialized agenc[ies] . . . with the power to enlist lawyers and law firms as regulatory gatekeepers"); see also Mark H. Aultman, Cracking Codes, 7 GEO. J. LEGAL ETHICS 735, 735 (1994) (arguing that, in practice, professional ethics is already specialized because specialty bars integrate different approaches resulting, inter alia, from special regulatory requirements).
301. See Aultman, supra note 172, at 738 (discussing enforcement issues). This question also encompasses the issue whether potential code drafters operate under incentives that would encourage them to get things right or wrong.
302. See generally David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799, 803-04 (1992) (discussing the values and failings inherent in different methods of enforcing standards of professional conduct).
303. See, e.g., Schneyer, supra note 159, at 643-64 (discussing limitations of professional discipline and ethics codes in the context of the regulation of banking lawyers); Zacharias, supra note 56, at 252 (noting that a rule "will have no coercive influence when its targets consider the provision . . . unlikely to be enforced").
304. See, e.g., Schneyer, supra note 159, at 643-64 (discussing limitations of professional discipline and ethics codes in the context of the regulation of banking lawyers); Zacharias, supra note 56, at 252 (noting that a rule "will have no coercive influence when its targets consider the provision . . . unlikely to be enforced").
305. See Schneyer, supra note 159 (arguing that increased involvement of banking agencies in professional regulation has stemmed in part from failure and inability of ethics regulators to promulgate and enforce their own proscriptions).
306. In conversations with the author, Ted Schneyer has suggested that even labeling a set of norms as a "code" may have jurisdictional implications, because it suggests self-regulation and a measure of being an unenforceable ideal. I do not use the term "code" in that sense here, but Professor Schneyer's point is well taken. Failure to distinguish between a code that could be adopted and enforced by any formal institution and a traditional bar-driven code of professional responsibility could lead to misconstruction of my proposals.
307. See, e.g., Rory Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM L. REV. 355 (1996) (discussing the advisability of Department of Justice regulation of federal prosecutorial ethics); Wilkins, supra note 174, at 844-47 (discussing the pros and cons of regulation by different kinds of regulators); Zacharias, supra note 12, at 387-96 (discussing competence of Congress in promulgating ethics regulation); Fred C. Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors - (Or, Who Should Regulate the Regulators)?, 65 FORDHAM L. REV. 429 (1996) (discussing the pros and cons of various potential regulators of federal prosecutorial ethics).
308. See, e.g., Rory Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM L. REV. 355 (1996) (discussing the advisability of Department of Justice regulation of federal prosecutorial ethics); Wilkins, supra note 174, at 844-47 (discussing the pros and cons of regulation by different kinds of regulators); Zacharias, supra note 12, at 387-96 (discussing competence of Congress in promulgating ethics regulation); Fred C. Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors - (Or, Who Should Regulate the Regulators)?, 65 FORDHAM L. REV. 429 (1996) (discussing the pros and cons of various potential regulators of federal prosecutorial ethics).
309. See, e.g., Rory Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM L. REV. 355 (1996) (discussing the advisability of Department of Justice regulation of federal prosecutorial ethics); Wilkins, supra note 174, at 844-47 (discussing the pros and cons of regulation by different kinds of regulators); Zacharias, supra note 12, at 387-96 (discussing competence of Congress in promulgating ethics regulation); Fred C. Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors - (Or, Who Should Regulate the Regulators)?, 65 FORDHAM L. REV. 429 (1996) (discussing the pros and cons of various potential regulators of federal prosecutorial ethics).
310. See, e.g., Rory Little, Who Should Regulate the Ethics of Federal Prosecutors, 65 FORDHAM L. REV. 355 (1996) (discussing the advisability of Department of Justice regulation of federal prosecutorial ethics); Wilkins, supra note 174, at 844-47 (discussing the pros and cons of regulation by different kinds of regulators); Zacharias, supra note 12, at 387-96 (discussing competence of Congress in promulgating ethics regulation); Fred C. Zacharias, Who Can Best Regulate the Ethics of Federal Prosecutors - (Or, Who Should Regulate the Regulators)?, 65 FORDHAM L. REV. 429 (1996) (discussing the pros and cons of various potential regulators of federal prosecutorial ethics).
311. Contrary to popular belief, professional codes traditionally have served a variety of functions, only one of which is establishing a foundation for lawyer discipline. See Zacharias, supra note 56, at 231-32 (identifying five broad purposes of ethics regulation). Before adopting any code, it is critical for the drafters to identify what they wish to accomplish, so that code provisions can be tailored to the priorities the drafters set. See id. at 285.