Advocating Justice
W
hat if there were a Rule of Court that required lawyers to act in the simple subjective belief that their positions were “just?” Now that’s a line John Lennon didn’t even dare to include in “Imagine.” But should it be relegated to the fond, if impractical, wish of young lawyers still possessed of the luxury of theory and idealism? None of the above. The requirement is real and binding. Ariz. Sup. Ct. R. 41(d) provides that it is one of the “duties and obligations” of members of our Bar “[t]o counsel or maintain no other action, proceeding or defense than those which appear to him legal and just, excepting the defense of a person charged with a public offense.” This seldom-cited rule is one of a series of reminders that the privilege of lawyerdom carries with it a solemn duty to face the sometimes bewildering tension between zealous advocacy-for-hire and the system of justice we swore to serve. Today, we do not lack for rules aimed at ensuring lawyers’ basic good faith. Ariz. R. Civ. P. 11, A.R.S. § 12341.01(C) and 12-349 and ER 3.1 all generally require lawyers to refrain from maintaining frivolous positions. Ariz. R. Civ. P. 26.1 prods lawyers to facilitate the decision of cases on their merits. Such rules do a good job of setting forth minimum objective standards of honesty and legality, but they are of little help in resolving the sometimes stark dilemma between the unadulterated client interests that lawyers are paid to advance and the lawyer’s duty to ensure that justice is done. The day-to-day practice of law is also subjective—it calls on the heart as well as the head. It requires initiative, inspiration and advocacy. Without a strong subjective principle at the core of advocacy itself, the rules will only protect against outright abuses. The preamble to the Rules of Professional Responsibility correctly observes that “[v]irtually all difficult ethical problems arise from conflict between a lawyer’s responsibility to clients, to the legal system and to the lawyer’s own interest in remaining an upright person while earning a satisfactory living.” Recognizing the frequency with which such conflicts arise, shouldn’t the Rules articulate a hierarchy for these values? If we were to choose such a hierarchy, how many lawyers would publicly argue that the responsibility to the justice system should not come first?
34 Arizona Attorney u November 1999
by Peter B. Swann
In a thoughtful critique of the unbridled “advocacy” that has become too common in practice, Justice Frederick Martone, during his tenure as a judge of the Superior Court, proposed a revision of Arizona’s Rules of Professional Conduct to help resolve the tension. Justice Martone noted that “[Attorneys’] role as an officer of the court has become a metaphor with little substance.” Frederick J. Martone, Adversary Adjudication on Trial, 21 Ariz. State L. J. 227, 233 (1989). Martone argued: The Rules of Professional Conduct need to be amended to clarify that a lawyer’s duties to the system are equal to or greater than his or her duties to the client. It is not adequate to say that a lawyer must zealously advance a client’s interest within the bounds of the law. Id. Instead, a lawyer’s first duty must be to cooperate in the dispute resolution process, and to function at the highest professional level with adversaries at the bar and the court. Against the backdrop of that duty, a lawyer has a duty to advance the client’s interests by presenting his or her view of the disputed issues of fact and law. Lawyers should not be adversaries beyond that. Unfortunately, no such amendment has yet appeared in the Rules. Rule 41(d) is noteworthy not because it articulates a quaint concern with justice that lawyers can ponder when they have time, but because it imposes an affirmative duty tied to each lawyer’s subjective moral compass. Rule 41(d) does not allow lawyers the personal freedom to advance positions merely because they are objectively “arguable.” It requires each of us to ask whether the positions we advance appear to us, as individuals, to be “legal and just.” If the private answer to that question in any given situation is not “yes,” then it’s time to reassess the advocacy. The subjective standard of Rule 41(d) does little to add teeth to the disciplinary system. Though the analagous Rule has formed the basis for discipline in other jurisdictions, it appears nowhere in any published decision of the Arizona appellate courts.1 But the Rule does offer a formula for lawyering that is both effective and ethical. Under Rule 41(d) lawyers can be effective, even devastating, advocates without doing violence to the principles that make ours an honorable profession. How many lawyers would openly argue that membership in the bar implies a privilege to advocate with endless zeal for a posi-
tion they know to be unjust, merely because a client could pay the fee? How many judges believe that effective advocates act with indifference to the justice of their clients’ cause? “Justice” is not susceptible to technically precise definition, but attention to its core principles is essential to a self-regulating profession. If lawyers regularly measured their advocacy against the standards of Rule 41(d), the overall effectiveness of that advocacy would improve and there would be fewer occasions requiring review of lawyers’ conduct under the objective disciplinary standards. By admonishing lawyers to work within the bounds of positions they personally consider just, Rule 41(d) may strike the best balance between the competing values identified in the preamble. After all, it is far easier to advocate effectively for a client’s position when the lawyer is personally convinced that the position—or at least that portion for which he or she advocates—is actually just. The law-
yer who feels “forced” to advocate a position that he or she cannot personally support as “just” not only falls short of the standards imposed by Rule 41(d), but is far less likely to be an effective advocate for the client’s position. As a practical matter, most lawyers know that where advocacy is not grounded in a genuine personal conviction in the justness of the client’s cause, the advocacy—not only the justice system—suffers. A component of today’s legal culture teaches that the more difficult and unpleasant the lawyer can make the litigation process, the more the client’s interests are furthered— hence, lawyers too often leave “justice” to the judges. Subscribers to that school help make civil litigation resemble trench warfare—battles take years, there is little forward progress, much expense, great aggravation and no clear resolution. On average, neither the public nor most members of the profession condone that approach to lawyering. Few, if any, judges are
impressed by it. It is not effective advocacy, it actually hinders the interests of most clients and it degrades the profession. Advocating for amendment of the Rules of Professional Conduct, Justice Martone pointed out that the reforms he urged are “within the rule making power of the bench and bar.” 21 Ariz. State L. J. at 235. While the rule making power of the court has not yet been invoked to effect such a rule change, the ongoing development of a legal culture that elevates lawyer’s attention to justice is within the power of each member of the bar. As young lawyers begin their careers, it cannot be overstressed that under Rule 41(d), it is the responsibility of each of us. Peter B. Swann has practiced media law and commercial litigation at Steptoe & Johnson, LLP for the past seven years. ENDNOTE: 1. See, e.g. Sorensen v. The State Bar of California, 804 P.2d 44 (Cal. 1991).
November 1999 u Arizona Attorney
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