Ethical limits on civil litigation advocacy: a historical perspective.

• Author: Andrews, Carol Rice
• Position: Introduction through III. Litigation Ethics Standards in the United States Through the Nineteenth Century, p. 381-419

CONTENTS INTRODUCTION I. DEFINING A LAWYER'S BASIC DUTIES IN CIVIL LITIGATION A. A Civil Litigator's Duties to the Client B. A Civil Litigator's Duties to the Court II. EARLY LITIGATION ETHICS STANDARDS IN EUROPE A. Ancient Litigation Oaths B. Early English Litigation Conduct Standards 1. The Litigation Oaths of English Ecclesiastical Courts 2. The Litigation Standards of the Early English Lay Courts C. French (and later Swiss) Litigation Oaths III. LITIGATION ETHICS STANDARDS IN THE UNITED STATES THROUGH THE NINETEENTH CENTURY A. American Litigation Standards Before the Nineteenth Century B. Nineteenth-Century Academic Discourse on Litigation Ethics 1. The Client-Oriented View 2. The Lawyer Morality View 3. The Middle View C. The Field Code Statutory Duties of Lawyers D. The Litigation Standards of the 1887 Alabama Code of Ethics IV. MODERN ABA MODEL LITIGATION STANDARDS A. The 1908 ABA National Model Standards B. The ABA Model Code of Professional Responsibility C. The Model Oath and the Just-Cause Duty D. The ABA Model Rules of Professional Conduct CONCLUSION INTRODUCTION

What are the ethical limits of a lawyer's advocacy in civil litigation? Lawyers, courts, and scholars struggle with this question, (1) but the concern is not new. It is centuries old. Most modern studies of historical legal-ethics debate focus on the early twentieth century, when the American Bar Association (ABA) formulated its first set of national model ethical standards. (2) Some scholars have studied the ethical discourse in the nineteenth century, (3) when the likes of Lord Brougham (in 1820), (4) David Hoffman (in 1836), (5) David Dudley Field (in 1850), (6) and George Sharswood (in 1854) (7) expressed their views of proper litigation advocacy. The concern for proper litigation conduct, however, long predated the nineteenth century, perhaps extending back to ancient times. The actual ethical and practical struggles of lawyers in earlier eras are difficult to capture today, but the regulatory standards for their conduct give some insights to the litigation ethos of the period. In this Article, I explore the early history of formalized civil litigation duties and track these standards to the present day.

In a previous article, I explored the general history of legal ethics standards and identified six core ethical principles that have governed lawyer conduct for centuries: litigation fairness, competence, loyalty, confidentiality, reasonable fees, and public service. (8) In the present Article, I look more closely at the core value of litigation fairness in civil cases. Over the centuries, the concept of litigation fairness has included different duties and standards of conduct, including reasonable behavior, truth, just cause, proper motive, and objective merit. When imposed, these duties have been paramount over any conflicting client duties. Indeed, society has consistently limited a lawyer's advocacy in civil litigation, through the duties of reasonable behavior and truth. The variance or evolution has come, in which additional duties--just cause, proper motive, and objective merit also limit a lawyer's advocacy.

I start, in Part I, by giving definition to the historical account. I identify and describe in general terms the various duties that might apply to a civil litigator. These duties fall in two broad groups: litigation duties to the client (competence, confidentiality, loyalty, and zealous advocacy) and duties to the court and opposing party (reasonable behavior, honesty, objective merit, proper motive, and just cause). The duties overlap somewhat, but each represents distinct values. Some of these litigation duties can be in tension with each other.

In Part II, I examine historical litigation standards in Europe, from ancient times to the colonial era. The thin record of legal ethics duties in this broad time frame provides only a glimpse at the standards of the respective eras. Even these cursory records, however, reveal multiple litigation duties to the court and, importantly, the priority of the duties. The early European advocate's duties to the court, which included reasonable behavior, truth, and often just cause, were paramount over duties owed to the client.

In Part III, I discuss litigation-ethics standards in the United States before the twentieth century. Early regulation was modest, but it tended to follow the English model of prioritizing reasonable and truthful litigation conduct. New attention to counsel in criminal cases prompted deeper consideration of all litigation duties. By the mid-nineteenth century, scholars, lawyers, and regulators, such as Brougham, Hoffman, Field, and Sharswood, attempted to detail the ethical limits of litigation advocacy, in a variety of civil and criminal litigation settings. These attempts exposed some uncertainty, especially concerning zealous advocacy, on the one hand, and just cause, on the other. In the second half of the nineteenth century, new ethics regulation addressed litigation conduct in unprecedented detail. The new regulation continued to prioritize truth and reasonable behavior, but it did not conclusively settle the proper balance between zealous advocacy and other court duties. The new regulation experimented with different limits, including just cause, proper motive, and objective merit.

In Part IV, I track the development of civil litigation duties in the twentieth century in the ABA model ethics standards. The initial ABA 1908 standards built upon the works of the late nineteenth century and stated a nuanced, arguably conflicting, set of civil-litigation duties. Over the next century the ABA further refined and revised its model litigation standards, culminating in the current Model Rules of Professional Conduct. Reasonable behavior and truth, as always, remain paramount duties. Zealous advocacy rose and ebbed as an ideal in the model standards and has today become a concept of diligence. Likewise, just cause faded as an affirmative duty and morphed into, first, a proper-motive standard and then, today, a standard of objective merit. Yet, because the ABA standards are merely models, the older standards linger in actual regulatory standards, including many state oaths that impose a just-cause duty.

Despite this evolution, or perhaps because of it, modern observers, particularly those in the academy, are not in agreement as to the proper standards for a civil litigator's conduct. (9) This debate is not unique to our generation. The debate did not start in 1908 or the nineteenth century. The concern for proper litigation conduct seemingly began with the profession itself. The debate, though centuries old, is fairly narrow. It is not whether a lawyer has a duty of full-out zealous advocacy on behalf of the client. The formal standards never have imposed such an unlimited duty. The question has not been whether a lawyer owes primary duties of truth and reasonable behavior. Lawyers always have had those duties. The question is instead which other duties, beyond reasonable behavior and truth, also limit a lawyer's civil litigation advocacy.

1. DEFINING A LAWYER'S BASIC DUTIES IN CIVIL LITIGATION

   No one can define or label all of a lawyer's potential litigation duties with precision or with universal acceptance. Indeed, the definition of the lawyer's ethical duties in litigation is at the heart of the debate both today and in preceding centuries. Nevertheless, some description is necessary to distinguish the duties from each other, and labels are useful shorthand references for study of the historical litigation ethics standards.

   My description of the duties here is necessarily general. I do not intend to capture every nuance of the duty or anticipate all applications of the duty. My intent is to describe each duty, in broad strokes, in order to contrast each from other litigation duties. I do not mean to suggest that a civil litigator is bound by all of the listed duties. My aim is to identify the duties that have frequently appeared, over time, in standards for litigation conduct.

   Further, I limit my description of the duties to civil litigation, as opposed to criminal cases. Many of the core ideals are the same in both contexts, but a lawyer's duties may vary depending on whether the litigation is civil or criminal. In my discussion of the historical standards, I occasionally note the different context of criminal cases where that difference helped define the duty on the civil side.

   Finally, in my labelling of duties, I do not mean to suggest that the historical standards use the same terms. It is precisely because the terms vary over time and place that I attempt to provide consistent terminology for my exploration and comparison of the standards of conduct. My aims are to report on the different standards over time and to categorize them. This involves guesswork as to some standards. We cannot know with any certainty what particular terms meant in their respective eras. Even today, we do not have a uniform understanding of proper litigation conduct.

   1. A Civil Litigator's Duties to the Client

      In this study, I consider four client duties in litigation: competence, confidentiality, loyalty, and zealous advocacy. The first three are relatively well understood, perhaps because they apply in all aspects of legal practice, not just civil litigation. Competence as applied to civil litigation requires the advocate to possess the basic skill and knowledge to litigate and to take steps to ensure such skill and knowledge. Confidentiality means both voluntary preservation of the client's private information and proper assertion of privilege during discovery and trial. Loyalty requires that the lawyer not have a conflict between the client's interests and those of the lawyer or other parties represented by the lawyer.

      The most difficult client litigation duty to define is zealous advocacy. Zealous advocacy requires competence, confidentiality, and loyalty...