Are Evidence-Related Ethics Provisions Law?
23 Pages Posted: 29 Aug 2007 Last revised: 13 Aug 2008
Date Written: August 2008
Abstract
This essay considers the issue of whether evidence-related provisions in the legal ethics codes should be considered law. The essay identifies the pertinent provisions, compares them to their counterparts in evidence law, and considers when and whether judicial and bar standards diverge. To the extent they do, the essay analyzes the possible reasons why and the significance of those reasons for treating the codes= evidence provisions as binding legal constraints. Although on the surface the divide between the professional rules and evidence law seems wide, the essay suggests that the reasons have more to do with the context in which judges and bar associations establish standards than with a difference in normative outlook. The decision of whether to allow particular code provisions to influence legal standards necessarily varies, thus making it impossible to categorically characterize the codes as legal or non-legal in nature.
Keywords: evidence, professional responsibility, summations, final arguments, judicial discretion
JEL Classification: K00, K10
Suggested Citation: Suggested Citation