Title

The Ethics of the Adversary System

Abstract

This article considers many commonly advanced criticisms of the adversary system. It provides an analytic framework that includes the likely results of changed ethical rules and that distinguishes and analyzes separately two different possible goals of the system, seeking the truth and promoting justice. The article is also unusual in the range of supporting materials that it synthesizes, which includes contributions from economic theory, psychological studies, philosophy, and traditional legal ethics.

The article concludes that changes in ethical codes meant to increase lawyers' duty to promote the truth will have a perverse result, decreasing the accuracy of litigation. This will occur because compliance with the rule will be difficult to verify, and, under these circumstances, many attorneys will not comply with the changed rules. When some attorneys promote the truth and other do not, those who do not will have the advantage, to the detriment of the truth-finding functions of the courts.

The article also concludes that encouraging lawyers to pursue justice as a goal is also likely to have perverse effects. Because lawyers are less representative of society than clients, the collective censorship by lawyers of clients' claims is likely to produce results inconsistent with democratic values or social mores. Even where clients' claims are inconsistent with then-existing law, there presentation serves important law-changing functions and participatory values. At best, giving lawyers the duty of scrutinizing clients' claims creates burdens on clients.

The article also addresses some possible alternative methods for improving the accuracy of litigation without creating conflicting duties for lawyers.

Disciplines

Courts | Dispute Resolution and Arbitration | Legal Ethics and Professional Responsibility | Legal Profession

Date of this Version

September 2004