The Zeal of the Civil Advocate

This article is concerned with the accountability of the civil advocate for results obtained for a client. It distinguishes the criminal trial by arguing that for effective implementation the adversary system, as it is commonly understood, requires that the professional advocates be equally competent and equally adversary and that because it does not meet these criteria, the criminal trial cannot be looked to as a model either of the adversary system or of the behavior of advocates in the civil trial. Rules of behavior for the civil litigator should be drawn with the primary objective of ascertaining truth. Moreover, the civil litigator cannot claim immunity from moral accountability by reference to the lawyer's role; he or she is personally accountable for an immoral result obtained for a client. Seeking to avoid this accountability all lawyers might reject an immoral but lawful cause, so that persons with such causes would be deprived of professional representation. The conflict between the lawyer's personal morality and the social value of professional assistance is resolved by reference to a formula for assigning counsel similar to those in Mathews v. Eldridge and Lassiter v. Department of Social Services. The author analyzes the moral dilemma of a lawyer who is so assigned and proposes a solution.