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  • Print publication year: 2014
  • Online publication date: October 2014

9 - Civil litigation

Summary

The different ethical worlds of civil and criminal lawyers

Lawyers do many things other than prosecuting and defending criminal cases. This chapter, and those that follow, considers the lawyer’s ethical duties in these other contexts. Interestingly, when thinking about those ethical issues, lawyers often have in mind the paradigm of the criminal defense lawyer as the model of ethical lawyering. Consider this critique of the rules of professional conduct from an ethical point of view:

It used to be, and around the turn of the century it was, that the rules expressly stated that the lawyer’s obligation to the client in litigation was to represent the client with warm zeal. Now, in the latest incarnation of the rules, the words “warm zeal” are dropped out. Instead, [the current rule of professional conduct] says (in essence) “we really mean warm zeal, but we talk about professionalism and competence and so on because we are afraid that if we say warm zeal, people will think that means you need to be a zealot on behalf of your client, and nobody likes zealots.” So in the name of softening up the rules and softening up the image of the profession, the warm zeals are a threatened species. They are clubbing the warm zeals to death to make coats for rich people.

Can you tell what kind of law this critic practices? The lawyer, Michael Tigar, is a passionate and talented defender of unpopular clients accused of crimes (and of the practice of criminal defense). Clubbing baby zeals is a funny line, but the concern about making coats for rich people shows that Tigar is really thinking about representing powerless individuals facing the dehumanizing machinery of the state, even though he talks more broadly about representing clients in litigation. Warm zeal may be an appropriate gloss on the principle of partisanship in the context of criminal defense, but it is problematic in other contexts of practice, including the representation of disputing parties in civil litigation.

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