Ethical limits on civil litigation advocacy: a historical perspective.

• Author: Andrews, Carol Rice
• Position: IV. Modern ABA Model Litigation Standards through Conclusion, with footnotes, p. 419-439

IV. MODERN ABA MODEL LITIGATION STANDARDS

In the early twentieth century, the American Bar Association took the lead in developing legal ethics standards for the entire nation. These efforts took three primary forms: the 1908 Canons of Ethics and model oath, the 1969 Model Code of Professional Responsibility, and the 1983 Model Rules of Professional Conduct. Most states have adopted one version of these model standards, as regulatory rules of conduct, most typically the Model Rules. (171) The end result today is a detailed set of binding conduct rules that address a full array of lawyer conduct and behavior.

A recurring and prominent issue in each of the ABA formulations was the limits on proper litigation advocacy. The 1908 standards took a compromise position, and in doing so, it stated standards somewhat at odds with each other, at least as to the proper balance between zealous advocacy and just cause. The Model Code moved more significantly toward zealous advocacy, and the Model Code era was the zenith of a zealous advocacy model in formal ethical standards. The Model Rules soon retreated from this position, but the Model Rules did not resurrect just cause. Today, both zealous advocacy and just cause have ebbed (but not totally disappeared) as concepts, at least as far as their embodiment in regulatory rules. The Model Rules take an intermediate position that prioritizes truth, reasonable behavior and objective merit.

1. The 1908 ABA National Model Standards

   The ABA's promulgation of national model standards began in 1905. (172) The ABA used the 1887 Alabama Code as a model for its proposed set of Canons of Ethics, and it used the Field Code as the basis for a model oath. (173) The ABA sent to its entire membership its proposed canons and model oath, along with other ethics works, including the Field Code, the 1816 Swiss oath, a version of the "do no falsehood" oath, Hoffman's Resolutions, and Sharswood's essay. (174)

   The ABA asked its members for comments on the entire package and, in an "earnest[] request," directed their attention to an issue that it termed "accept[ance of] retainers" and which asked members to comment on the limits of representation with a particular focus on Sharswood's views:

   We also earnestly request that ... you give us the benefit of your advice, crystallized into specific canons, concerning the principles which should ever guide the lawyer, true to his country, his client and himself, in accepting the retainers of individuals and of corporations and in representing or advising them, knowing that by virtue of the establishment of the relation of counsel and client it will be his duty, within the scope of the retainer, to guard by every honorable means and to the best of his learning and ability the legal rights of the client. A full discussion of the principles involved will be found running throughout Sharswood's Ethics. (175) The ABA received more than 1,000 letters in response, reflecting a full range of views as to proper litigation advocacy. (176) Comments regarding the proposed model oath are especially illustrative because the oath stated a just-cause duty. Simeon Baldwin, the founder and former president of the ABA, (177) reported that the oath's just-cause clause was "subject to serious criticism" because the clause required the lawyer to be "satisfied that a suit or defence is just, before he can take the first step in court." (178) For example, one member questioned: "Is it plain, even that [the just-cause clause] is correct? May a man not argue what he thinks is not the law to a Court? He may be wrong--and to decide is the Court's job?" (179) This criticism was not universal. (180) Thomas Hubbard, a prominent legal ethicist and a member of the ABA drafting committee, (181) urged the ABA to state a just-cause duty in both the model oath and the Canons of Ethics. (182)

   The end result of the ABA debate was a nuanced position that had internal inconsistency, at least between the final versions of the model oath and Canons of Ethics. In the final model oath, (183) the ABA stated a restrained version of the just-cause duty: "I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law." (184) The Field Code stated the duty affirmatively and subjected all claims and defenses, except criminal defenses, to the just standard. The ABA oath reversed the standard, from "just" to "unjust" (185) and, like Sharswood, applied it only to civil plaintiffs and criminal prosecutors ("suit or proceeding"), not defenses of any kind, civil or criminal. (186) Nevertheless, even with its new phrasing, the model oath "unjust" ban for civil plaintiffs meant something more than lack of objective merit, given that the same clause imposed an objective merit standard ("honestly debatable") to defenses. (187)

   As to the final Canons of Ethics, the ABA's position on litigation advocacy was similar, but not identical, to that of the 1887 Alabama Code. First, the Canons of Ethics stated litigation duties to the client. The Canons of Ethics, like the 1887 Alabama Code, only indirectly spoke to competence by specifying good practices, particularly punctuality. (188) Canon 6 stated a duty of loyalty and addressed confidentiality. (189) The Canons of Ethics also stated the duty of zeal. Canon 15 quoted the portion of the 1887 Alabama Code, including Sharswood's "warm zeal" exhortation. (190) Yet, like the 1887 Alabama Code and many other voices of the era, the new Canons of Ethics immediately condemned the view that the lawyer must "do whatever may enable him to succeed in winning the client's cause." (191)

   The Canons of Ethics stated duties to the court that limited client duties. Canon 22 was a close replica of the truth duties of Rule 5 of the 1887 Alabama Code, condemning several deceits and "unworthy" practices. (192) Several canons imposed obligations of reasonable behavior. (193)

   Both Canon 15 and Canon 30 stated an objective merit standard, at least as to law. Canon 15 referred to remedies and defenses "authorized by the law of the land." (194) Canon 30 referred to the "legal merits" of the client's claim, and it concluded by stating that the lawyer's appearance acted as an assertion that the "client's case is one proper for judicial determination." (195) This assertion provision was similar to the affirmation in the federal equity rule, but the equity rule stated a more obvious objective merit standard, "good ground for the suit." (196)

   The Canons of Ethics did not impose an affirmative just-cause duty. In civil cases, Canon 31, entitled "Responsibility for Litigation," gave the lawyer discretion whether to accept a civil client, plaintiff or defendant. (197) Canon 31 cautioned that the responsibility "for bringing questionable suits" and "questionable defenses" was the "lawyer's responsibility" and that the lawyer could not escape his responsibility by saying that he was "only following his client's instructions." (198) This seemingly permitted a lawyer to consider the justness of a client's civil cause and decline cases that the lawyer considered unjust, but it did not require him to do so.

   The only affirmative duty in the Canons of Ethics to decline a civil case was phrased in terms of the client's motive, similar to Rule 14 of the 1887 Alabama Code, but applicable to both civil plaintiffs and defendants. Interestingly, Canon 30 was entitled "Justifiable and Unjustifiable Litigations" and seemingly was an alternative standard for "just" and "unjust." (199) Canon 30 began by using a motive standard: a "lawyer must decline to conduct a civil cause or to make a defense when convinced that it is intended merely to harass or to injure the opposite party or to work oppression or wrong." (200) Canon 30 continued, "[b]ut otherwise it is his right and, having accepted retainer, it becomes his duty to insist upon the judgment of the Court as to the legal merits of his client's claim." (201) This imposed a spectrum of duties. First, the lawyer could decline a civil case for any reason, including the justness of the cause, and the lawyer must decline if the cause--claim or defense--was either improperly motivated or lacked objective merit. Then, as to existing civil clients, the lawyer had to affirmatively press claims and defenses that had both objective merit and proper motive.

   These portions of the Canons of Ethics were at odds with the model oath on proper civil litigation advocacy in subtle but multiple respects. The just-cause duty of the model oath required a lawyer to neither "counsel In]or maintain" a civil plaintiff's cause that appeared to the lawyer to be "unjust." (202) The ABA models thus stated different standards for accepting clients as an initial matter: one a matter of discretion and the other a mandate. While the 1908 Canons of Ethics gave the lawyer discretion to decline a plaintiff's clause as an initial matter for whatever reason, the model oath required that the lawyer decline an unjust matter for a plaintiff. A more critical difference came in representation of an accepted client. If the lawyer later came to believe that the plaintiff's cause was unjust, the model oath required withdrawal, but the Canons of Ethics required the opposite. Canon 30 mandated that the lawyer persist in maintaining the claim based on its legal merit, so long as it was not improperly motivated. The lawyer could not withdraw based on his own assessment of the justness of the cause.

   The distinction cannot be reconciled by defining the unjust standard in the model oath to mean lack of legal merit. This arguably was the interpretation suggested by Field in his commentary, (203) but the model oath clause did not permit this reading. The just-cause clause of the model oath itself distinguished between an unjust standard, which the model oath applied to plaintiff's claim, and an objective...