Limitations on Zealous Representation in an Adversarial System

Abstract

For a number of years scholars of the legal profession have debated whether the role of lawyers in an adversarial system is morally defensible. The debate has provided important insights into the foundations of the adversarial system, the role of lawyers in that system, and the application of moral principles to professional behavior. But the debate has ignored a more obvious question: What limitations on zealous representation can be derived from the conception of the adversarial system itself, rather than from principles of morality? This article has two goals, one descriptive, the other normative. The descriptive goal is to offer a framework for understanding the various rules that limit lawyer zealousness. I argue that almost all of the rules limiting zealous representation can be seen as designed to maintain three principles that define the adversarial system: (1) the bona fide dispute principle, (2) the impartial decision maker principle, and (3) the principle of qualified truth-maximizing rules. The normative goal is to offer a critical perspective on a number of rules of professional conduct to demonstrate ways in which they could be improved.