Harmonizing Legal Ethics Rules with Advocacy Norms

• Author: Dane S. Ciolino
• Position: Alvin R. Christovich Distinguished Professor, Loyola University New Orleans College of Law
• Pages: 199-232

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-shucks” demeanor. 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 147–48 (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, 309–10 (1998). Professor Alschuler notes that at least

three different sources corroborate that the “picture swap” at 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 rhetoric—the art of persuasion—since

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 evidence—not 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