Ethics

In his recent article on Role Differentiation and Lawyers? Ethics, Bill Simon asserts that his notion that a lawyer should correct an adversary?s mistake of law is consistent with an adversary system.  His sole proof of that fundamental and highly questionable  premise of his argument is a single, brief quotation from George Sharswood?s Essay on Professional Ethics.

First, Sharswood?s essay meandered about the subject so much that he can be (and has been) cited for just about any proposition on lawyers? ethics.  But even in the quotation that Bill uses, I don?t read it as he does.  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.

Regardless of whether my reading is correct, Sharswood also said: ?When a client employs an attorney, he has a right to presume, if the lawyer be silent on the point, that ... he has no interest which may ... endanger his fidelity.?  And: ?Under all circumstances, the utmost candor should be used towards the client.?  To the best of my knowledge, Bill has never advocated showing as much candor to his clients as he would to his adversary.  That is, I agree with Sharswood that a lawyer who is going to help the client?s adversary whenever the lawyer thinks it just to do so, should so advise the client before the client retains him - if the client then ever would retain him.  But that?s the kind of  practical problem that sky-hook philosophers prefer to ignore.

Sharswood also said, directly contrary to Bill:  ?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....?

And he also said, worthy of Lord Brougham, that a ?truly conscientious practitioner?  has a ?moral responsibility? to give ?[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.?  And:  ?He is not morally responsible for the act of the party in maintaining an unjust cause.?

Where does that leave Bill's premise about a Golden Age when his view of the adversary system prevailed?