Harmonizing Legal Ethics Rules with Advocacy Norms

AuthorDane S. Ciolino
PositionAlvin R. Christovich Distinguished Professor, Loyola University New Orleans College of Law
Pages199-232
ARTICLES
Harmonizing Legal Ethics Rules with Advocacy
Norms
DANE S. CIOLINO*
ABSTRACT
For millennia, advocates have used extra-evidentiary persuasion techniques
to tip the scales in favor of their clients. They appeal to emotion, develop perso-
nal credibility, and tell stories to influence tribunals with irrelevancies. But in so
doing, lawyers violate more recent legal ethics and adjudication rules that
facially prohibit such widely accepted advocacy practices. This Article addresses
the disconnect between these rules and advocacy norms. It argues that the lack
of congruence between the rules as written and as enforced runs afoul of the rule
of law. It concludes that legal ethics and adjudication rules should be revised to
include a flexible reasonableness standard that is compatible with age-old advo-
cacy norms.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200
I. WHAT ADVOCATES DO TO PERSUADE . . . . . . . . . . . . . . . . . . . 202
A. ADVOCATES USE CLASSICAL RHETORIC . . . . . . . . . . . . . 202
B. ADVOCATES USE STORYTELLING, PSYCHOLOGY, AND
OTHER PERSUASION TECHNIQUES . . . . . . . . . . . . . . . . . . 206
II. WHAT CURRENT LEGAL ETHICS RULES AND ADJUDICATION
REGULATIONS PROHIBIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
* Alvin R. Christovich Distinguished Professor, Loyola University New Orleans College of Law. Thanks to
Monica H. Wallace, Clare S. Roubion, William G. Ross, and McNeil J. Kemmerly for reading drafts of this
Article. Thanks also to various participants in the 2022 International Legal Ethics Conference at UCLA for
their helpful comments. Special thanks to R.A. Alexis J. Topel and Senior Reference Librarian Brian
Huddleston for their research assistance and guidance. © 2023, Dane S. Ciolino.
199
A. ADJUDICATION REGULATIONS PROHIBIT TRIBUNALS
FROM USING IRRELEVANT MATTERS IN DECISION-
MAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
B. LEGAL ETHICS RULES PROHIBIT LAWYERS FROM
APPEALING TO EXTRA-EVIDENTIARY MATTERS . . . . . . . 211
C. THESE RULES AND REGULATIONS PROHIBIT WIDELY
ACCEPTED PERSUASION METHODS . . . . . . . . . . . . . . . . . 214
III. HARMONIZING LEGAL ETHICS RULES AND ADJUDICATION
REGULATIONS WITH ADVOCACY NORMS . . . . . . . . . . . . . . . . . 217
A. DO NOTHING? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217
B. ENHANCE ENFORCEMENT OF EXISTING RULES? . . . . . . . 219
C. PERMIT ADVOCATES TO APPEAL TO IRRELEVANT
MATTERS? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221
D. TAILOR LEGAL ETHICS RULES AND ADJUDICATION
REGULATIONS TO FIT ADVOCACY NORMS. . . . . . . . . . . . 222
1. RECONSIDER LEGAL ETHICS RULES . . . . . . . . . . . . . . . . . . 222
2. RECONSIDER ADJUDICATION REGULATIONS . . . . . . . . . . . . . 228
3. APPLYING THE PROPOSED REASONABLENESS STANDARD. . . . . 230
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232
INTRODUCTION
Clarence Darrow famously inserted a straight wire into a cigar and smoked the
cigar during trial; the ash grew and grew but never fell, fixating jurors and causing
them to pay little attention to his opponent’s argument.
1
O.J. Simpson’s defense
team replaced photographs of white people in Simpson’s house with those of
African-Americans prior to a jury view.
2
Lawyers dress down in court and adopt
an aw-shucksdemeanor. They wear lapel pins and remove wedding rings.
3
They weave narrative stories with villains and heroes and their journeys. They
1. See RICHARD ZITRIN & CAROL M. LANGFORD, THE MORAL COMPASS OF THE AMERICAN LAWYER:
TRUTH, JUSTICE, POWER, AND GREED 14748 (1999).
2. See Albert W. Alschuler, How to Win the Trial of the Century: The Ethics of Lord Brougham and the O.J.
Simpson Defense Team, 29 MCGEORGE L. REV. 291, 30910 (1998). Professor Alschuler notes that at least
three different sources corroborate that the picture swapat Simpson’s home occurred, although Simpson’s
principal defense lawyer, Johnnie Cochran, later denied playing a role in it. Id. at 310 n.83.
3. ZITRIN & LANGFORD, supra note 1, at 145 (If Abe Dennison thinks that adopting an aw-shucks demeanor
will help him relate to the jury, who’s to say he can’t?); see also Douglas R. Richmond, The Ethics of Zealous
Advocacy: Civility, Candor and Parlor Tricks, 34 TEX. TECH L. REV. 3, 56 (2002).
200 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 36:199
use rhetorical techniques such as ethos to gain personal credibility and pathos
to stir emotions. Lawyers employ these and other techniques for one obvious
reason: to persuade decision-makers subconsciously with extra-evidentiary
information.
4
This isn’t new. Advocates have studied rhetoricthe art of persuasionsince
the 5th century BCE.
5
Two millennia later, we continue to teach it in our advo-
cacy classes along with newer techniques informed by modern psychology and
social science.
But these persuasion techniques run afoul of the plain language of the rules of
evidence, procedure, and professional conduct. Those rules prohibit lawyers from
persuading decision-makers with personal credibility, appeals to emotion, and
other allusions to information that is not in evidence. They prohibit courts from
admitting such irrelevant information into evidence. And they prohibit juries
from deciding cases based on anything other than the law and the facts. The rule
of law requires nothing less of the adjudicative process. After all, decision-mak-
ers must resolve cases deliberately using law and evidencenot subconsciously
under the spell of the dark art of persuasion. Or so the theory goes.
This Article addresses the disconnect between unambiguous legal ethics rules
and adjudication regulations, which prohibit appeals to extra-evidentiary matters,
and longstanding advocacy norms, which employ such appeals and allusions.
Part I describes what advocates do to persuade decision-makers using principles
of rhetoric, storytelling, psychology, and other persuasion techniques. Part II con-
siders existing legal ethics rules and adjudication regulations and concludes that
they flatly prohibit advocates from doing much of what they currently do and
have long done. Part III addresses what should be done about this disconnect
between what advocates do and what the rules governing their conduct prohibit.
The Article concludes that the lack of congruence between the rules as written
and as enforced runs afoul of the rule of law. This is particularly troubling consid-
ering that these rules exist for one purpose: to further the rule of law. As a result,
the Article argues that lawyer ethics rules and trial-procedure regulations should
be revised to accommodate longstanding advocacy norms. Such a revision would
replace the current categorical rules prohibiting extra-evidentiary persuasion
techniques with a flexible standard prohibiting only those that are objectively
unreasonable.
4. ZITRIN & LANGFORD, supra note 1, at 108 (Trial lawyers are always looking for an edge, an angle, with
the jury. There are almost as many examples as there are lawyers who try cases. Some efforts seem more des-
perate, or even silly, than useful, but all are consistent with another lesson repeated by those who teach trial
techniques: ‘Everything that happens in the courtroom counts; you never know what will have an effect on the
jury.’).
5. Edward Schiappa, Sophistic Rhetoric: Oasis or Mirage?, 10 RHETORIC REV. 5, 5 (1991).
2023] HARMONIZING LEGAL ETHICS RULES WITH ADVOCACY NORMS 201

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