Academic journal article Texas Journal on Civil Liberties & Civil Rights

Check Your Identity-Baggage at the Firm Door: The Ethical Difficulty of Zealous Advocacy in Bias-Ridden Courtrooms

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Check Your Identity-Baggage at the Firm Door: The Ethical Difficulty of Zealous Advocacy in Bias-Ridden Courtrooms

Article excerpt

I. INTRODUCTION1

It is almost a maxim among lawyers that, as Henry Brougham, Lord Chancellor, famously put it, "an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client."2 It is common to view the various ethical and legal rules governing lawyers as an effort to resolve in the client's favor the agency problems a clientlawyer relationship creates.3 A client's reliance on his attorney's professional judgment is so great that ultimate trust must characterize their fiduciary relationship.4 Even lawyers convinced that their responsibilities include a devotion to the public good can claim that the "public good" is served best by prioritizing the private needs of their clients.

Yet there are scenarios where the attorney's fiduciary duty is pitted against a different lodestar of the legal profession-equal protection.5 What is the ethical response of lawyers asked to step down from cases because their identity may not play well with a jury?6 After all, the demographic composition of prospective jury members can influence litigation outcomes,7 as might the demographic identity of the attorney on the case.8 A firm might therefore seek to do whatever necessary to minimize the harm that racism, sexism, homophobia, xenophobia, antiSemitism, and other bigotry can cause to its clients. In short, a firm must facilitate clients' objectives, not impede them. Why should this not encompass making case-staffing decisions with attention to an attorney's identity?9

This Note examines how the Model Rules of Professional Conduct and the Model Code of Professional Responsibility do and should regulate litigation strategy that factors in an attorney's identity.10 It concludes that the current framework does not provide a meaningful enough deterrent to the professional damage that results from such conduct. The Note explores whether the obligation for zealous advocacy entails an obligation to utilize an attorney's demographic attributes as litigation strategy. It concludes by proposing model rules that might successfully balance the tension between zealous advocacy and professional integrity.

II. A MATTER OF PECUNIARY SELF-INTEREST?

Rather than presuming that there is something unethical about a firm removing an attorney from a case in light of his or her attributes, perhaps instead the attorney has a duty to terminate representation. To refuse to be removed from a case may be seen as putting the attorney's own economic welfare and career ambitions above a client's needs. When cast in such a light, this scenario screams breach of fiduciary duty by the attorney. Thus viewed, the dilemma is the "classic conflict of interest" that every attorney faces, such as when offered a settlement; the conflict is between a lawyer's "interest in maximizing his fee" and "his clients' interest in maximizing the amount paid to them."11 It may seem that attorneys that refuse to have their identities employed as a litigation tactic are more concerned with how removal from the case might hurt them than with how their identity might hurt their client's case.

Were pecuniary self-interest the sole underlying reason that an attorney refused to step down from a case, the ABA Model Rules of Professional Conduct and Model Code of Professional Responsibility would seem to provide clear guidelines for the attorney's conduct. Neither the Code nor the Rules allow lawyers to put their own financial interests above their clients' needs. To do so would be in direct violation of Model Rule I.7.12 Similarly, the Model Code does not allow lawyers to obtain a proprietary interest or to become financially interested in the outcome of the litigation, so as to avoid the "possibility of an adverse effect upon the exercise of free judgment."1 Most strongly, Ethical Consideration 5-1 of the Model Code prevents the attorney from staying on the client's case, if his motivations are purely self-interested: "Neither [a lawyer's] personal interests, the interests of other clients, nor the desires of third persons should be permitted to dilute [a lawyer's] loyalty to his client. …

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