NEXT CLASS

READ BTL pp. 297-304

Bring assignment to class and hand in Assignment

Role of Lawyers/Whose Interests are served?

DeTocqueville: Lawyers serve interests of democracy Represent missing aristocratic class Profession transformed from elite club

Demographics of bar Critical link in maintaining social order

Turn political issues into legal questions

Lawyers-historically

Lawyers not allowed in colonial America Reflected hostility toward English and law

seen as assertion of illegitimate power Demand for trained bar arose with

urbanization and commercialization 25 signers of Declaration –lawyers Liberalization of bar with democratization

Ethics of Advocacy

Ethical questions arise in context of adversary system

This system presumes that biases of self interest will be best be offset by setting dispute process in neutral forum before impartial arbiters

Conflict resolution is constrained by body of rules-law.

Outcomes are measured in terms of winning and losing

Lawyers and Adversary Process Lawyer/Client Privilege Lawyers treat Law as

game, object of which is to win-not at aiding court in discovering the facts

Fight Theory rather than Truth Theory of Justice (Jerome Frank)-legitimacy in creating false impression

Courts serve the role of peacekeeper and dispute settlement

Is fight theory equally appropriate in family, civil, environmental, OSHA type cases?

Legal Advocacy

Lawyer devotes life to acting vicariously-for other people

Total Loyalty of lawyer to client Lawyer/client privilege How far does this loyalty go? Should lawyer lie for client? Representing a guilty client Lawyer treat practice of law as a game Lake Pleasant case

Ethical Dilemmas

Can Lawyers…. Put on a false case? (Subin Article) I.e. using alibi witness that is fabricating

story? I.e. use and suppress lie detector tests? I.e use mistaken identity defense which,

even though false is plausible? Hide or destroy evidence?

“I have nothing to do with Justice” Criminal defense lawyers’ job is to get

whatever they can for client-getting the best deal

Moral dilemma of “plea-bargaining.” Who benefits from Plea-bargaining? Criminal lawyer works for the guilty and for a

judicial system based on paradoxical principle that guilty must be freed to protect the innocent

Litigation as a “game”-is it a Man’s game? Lawyers are actors who utilize techniques of

intimidation and strategic friendliness Lawyers are warriors/gladiators-images of

extreme masculinity Aggressive cross-examination-goal is to

“destroy” witnesses. What facts to bring up on cross-examination

are influenced by gender Is there really a “women’s voice” in

advocacy?