Global Issues in Legal Ethics Second Edition by James E. Moliterno Vincent Bradford Professor of Law Washington and Lee School of Law Paul D. Paton Professor of Law McGeorge School of Law University of the Pacific GLOBAL ISSUES SERIES™ Gwest ACADEMIC PUBLISHING Mav #41998107oroenernrennrptene meena eneeetnnnererenrrenerermnectenmemmenenaee Chapter 1 — ROLE OF LAWYER A. ROLE OF LAWYER Fundamental to any study of lawyer ethies is an appreciation, of the lawyer's role with respect to clients, the profession itself, the state and the public interest generally. The words of the lawyer codes themselves have a general nature. Their interpretation and understanding comes from roading them in the context of the lawyer's role. Lawyers obviously play different roles depending on their place in the legal profession and the nature of their law practice or activity. Judges and prosecutors have fundamentally different roles from those of private lawyers. But even within the ranks of those we would usually call “lawyer,” different practico settings shade the lawyer's role in different ways. Criminal defense lawyers have special responsibilities and duties; in-house corporate lawyers the same; lawyers for government agencies serve somewhat different interests than do private lawyers. Always consider the particular place of a lawyer in society when considering that lawyer's proper courso in a given circumstance. ‘The role of lawyer, of course, will vary from one legal system to another. But some generalities can be drawn. Lawyers bring the law to non-lawyers by advising clients and by drafting documents that make clients’ transactions work to serve the clients’ interests within legal constraints. Lawyers make the system of justice work. Their role is more active in the litigation process in common law countries, to be sure, but in civil as well as common law countries, the lawyer plays a crucial role in operating the system of justice, shepherding cases through the system. Lawyers play an important role in law making as well. Many lawyers serve in legislatures and Parliaments and often lawyers are called upon to advise parliaments on the details of new laws. Fair-minded people hold different views of what a lawyer does. Some may say that a lawyer is simply a business person, not unlike the barber, the doctor or the shop owner, providing a service 12 ROLE OF LAWYER Ch. to paying customers. Others will see a more public-abiding role for the lawyer, providing a service to paying clients but also maintaining an eye on the public interest, justice, and fairness of society. This difference in view will account for differing opinions about what a lawyer should do in a morally difficult position. In democratic societies, lawyers surely fill an important role that no other professional fills: the lawyer is the guardian of the rule of law, the ideal that all people stand equally before the law and neither expect nor receive special treatment from it. Tn emerging democracies, this role is especially important for lawyers, who have the potential to become the great levelers between the powerful and the less so. To be sure, the market for lawyer services, even in the most well-established democracies, is tilted sharply toward the corporate world and toward those with means. But guarantees of the right to counsel in criminal matters, government funded legal aid for the poor (limited as it is), and pro bono activities of private lawyers, all combine to create some promise that the most important matters affecting the poor and the powerless will also be served by lawyers and the legal profession. B. THE ROLE OF THE LAWYER IN THE CIVIL AND COMMON LAW SYSTEMS, A common law system relies on court decisions as a source of law while a civil law system relies solely on statutes created by the legislature or administrative bodies. In a civil law system, therefore, the judge applies the law but does not create it. In common law system, however, judges and lawyers must employ @ more casuistic approach to legal thinking. Judges creato a common law system gradually by deciding one ease at a time building body of law based on the collective wisdom of other judicial decisions. This different approach may lead legal professionals in a common law system to concern themselves more with the practical administration of the law while legal professionals in a civil law system may find themselves more coneemed with theory and preserving the statutory framework as a coherent whole, ‘The differences between the civil and common law systems also manifest themselves through dispute resolution procedure. Disputes in a common law systom are resolved through an adversarial system. The two opposing parties investigate, collect and present the evidence and arguments before a passive fact- finder. Judges typically only intervene to guarantee that the adversaries have equal opportunities to present their evidence and arguments to the fact-finder. On the other hand, in most civil law"sero eens eeroeaannEneNesn eee t ' ‘THE ROLE OF THE LAWYER IN THE CIVIL AND COMMON LAW SYSTEMS. systems, judges exercise much more control over the scope and direction of the litigation. The dispute resolution process becomes more inguisitorial than adversarial. The lawyers in civil law systems proffer lines of inquiry and make legal arguments rather than collecting evidence and presenting it as common law parties do. Also, civil law trials do not follow the point-counterpoint format ‘that common law trials do. Rather, the trials are more fluid, often becoming a series of hearings instead of one ultimate trial. Even mature civil law systems vary in their measure of adversarial versus inquisitorial modes of operation. But. several emerging democracies with civil law legal systems have opted for a highly adversarial, even Americanized model of dispute resolution. 1. United States Alexis De Tocqueville once stated that “When one visits Americans and when one studies their laws, one sees that the authority they have given to lawyers and the influence that they have allowed them to have in the government form the most powerful barrier today against the lapses of democracy. This effect seems . .. to have a general cause that is useful to inquire about, for it can be reproduced elsewhere.” The abundant authority and deference, apparent to DeTocqueville, that American society affords lawyers has given them the opportunity to play a crucial role in the formation of American government. Of course, with great power comes great responsibility. Lawyers responded to this responsibility by molding America’s government and laws from their infancy. In fact, “(tJhe Principal author of the Declaration of Independence, Thomas Jefferson, was a lawyer. The principal force behind a unified colonial response to British occupation of Boston, and hence the Revolutionary War, John Adams, was a lawyer.” Countless other lawyers such as Alexander Hamilton, John Marshall, and William Paterson proved critical to the nation’s development® Thus, it should come as no surprise that “[tJhe footprints of the legal profession aro evident in the basic documents of the Revolution and the basic documents establishing the United States.”* Lawyers today continue this tradition of public service with their strong presence in the executive branches of our government and the state and federal 1 Lexis De TocauEvitLe, DeMOcRACY IN AMERICA 261 (Harvey C Mansfield & Delba Winthrop, eds. & trans, 2000). » Can. F. GOODMAN, THE RULE OF LAW IN JAPAN 193 (2003). * Kenneth M. Rosen, Lossons on Lawyers, Democracy, and Professional4 ROLE OF LAWYER, ha legislatures that shape our law. Lawyers not employed in the field of public service guide individuals and business entities through the United States’ complex legal system. ‘The controlling part that Jaw and the legal profession plays in American society has spawned a great deal of publie interest in the role of the lawyer.’ “The three-fold loyalty of the lawyer to his client, to the court or administrative agency before which he practices, and to society at large, presents important problems of intrinsic interest to everyone.”® The intense scrutiny that lawyers face as a result of these significant duties has led to the criticism and distrust of lawyers throughout history.” The legal profession has gone to great lengths to regulate itself, in part, to make sure the things that cause this distrust do not happen. The ABA has aptly described the role of the lawyer in the United Siates as follows: A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.® As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously aseerts the client's position under the rules of the adversary system. As negotiator, a lawyer seoks a result advantageous to the client but consistent. with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.® In addition to these representational functions, a lawyer may serve as a third-party neutral, a nonzepresentational role helping the parties to resolve a dispute or other matter. Some of these Rules apply directly to lawyers who are or have served as third-party neutrals. See, eg, Rules 1.12 and 2.4. In addition, there are Rules that apply to lawyers who are not active in the practice of law or to practicing lawyers even when they are acting in a nonprofessional capacity. For example, a © Rosen, at 167 or 11 ® MoDeL Russ oP PRoPL CONDUCT PREAMBLE (2004). * MopEL RULES OF PRoP'L ConDuCT PREAMBLE (2004). understand justio adequate leg profession in: regulate itself Lawyers play fulfillment of their relatior Professional C that relations? ‘These stand representation for resolution system | society. Absent eit system would not fi 2 Japan At the time of Japan." According! Japan's original Cc "GoopMak, THEthe ‘THE ROLE OF THE LAWYER IN THE CIVIL AND COMMON LAW SYSTEMS lawyer who commits fraud in the conduct of a business is subject to discipline for engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. See Rule 8.4.10 As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. In addition, a lawyer should further the public's understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. A lawyer should be mindful of doficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance. Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest.1? Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship”? ‘These standards reflect not only the necessity of zealous representation for clients in the United States’ adversarial dispute resolution system but also the necessity of a lawyer's integrity for society. Absent either of these elements, the United States’ legal system would not function nearly as efficiently as it currently does. 2, Japan At the time of the Restoration, no legal profession existed in Japan." Accordingly, lawyers neither led the revolution nor drafted Japan's original Constitution or Codes as occurred in the United ‘MODEL RULES OF PROF CONDUCT PREAMBLE (2008). MopEL RULES OF PROF: CONDUCT PREAMBLE (2004), 2Mank RUFRS OF PRO CONDUCT PRRAMBLE (2004).