Ethics

Bill Simon's (Mis)Use of Sharswood II

In an earlier post, I referred to Bill Simon?s article on Role Differentiation and Lawyers? Ethics.  Bill asserted that his notion that a lawyer should correct an adversary?s mistake of law, is consistent with an adversary system.  His sole support for that fundamental and highly questionable practical premise of his argument is a single, brief quotation from George Sharswood?s Essay on Professional Ethics in 1860.  The quotation is: ?[c]ounsel are duty-bound to refuse to be concerned for a plaintiff in pursuit of a demand, which offends his sense of what is just and right.?

I read that to mean what Brad and Alice correctly state as my position  - that lawyers should exercise moral discretion in selecting clients, not in selling them out.

Beyond that, I suspected that the quotation had been taken out of context, but I didn?t want to say so until I had acquired my own copy of the edition of Sharswood that Bill cited (2d ed., 1860, at p. 39).  I now have it, and you can judge for yourself.  Here is the rest of the quotation:

?The courts are open to the party in person to prosecute his own claim, and plead his own cause; and although he [the lawyer] ought to examine and be well satisfied before he refuses to a suitor the benefit of his professional skill and learning, yet it would be on his part an immoral act to afford that assistance, when his conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him.?

Sharswood does distinguish representation of a defendant.  In that regard, Sharswood does seem, at first, to expressly support Bill?s position, saying (earlier, on the same page): ?[I]f a suit be instituted against a man to recover damages for a tort, the defendant has a right to all the ingenuity and eloquence he can command in his defence, that even if he has committed the wrong, the amount of the damages may not exceed what the plaintiff is justly entitled to recover.?

But, there again, Sharswood is not saying, as Bill does, that the lawyer should correct his adversary?s mistake of law to avoid unjust damages -- just that the lawyer should use his ?ingenuity and eloquence? in giving ?[e]ntire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights, and the exertion of his utmost learning and ability.? Indeed, Sharswood also says expressly:  ?It would be going too far to say that it is ever advisable to expose the weakness of a client?s cause to an adversary....?

In short, the essay of a single lawyer in 1860, who is at best ambiguous about the issue, is hardly justification for Bill?s erroneous conclusion that exposing the weakness of a client?s cause has ever been considered consistent with our constitutionalized adversary system.  His proposal, therefore, is simply another sky-hook notion without even the meager support in practice that he claims.

Full post as published by Legal Ethics Forum on December 08, 2010 (boomark / email).