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

9 - Civil litigation


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.

Tigar, Michael E., “Litigators’ Ethics,” Tennessee Law Review 67: 409–24 (2000), p. 411
Gideon v. Wainwright, 372 U.S. 335 (1963)
Aviel, Rebecca, “Why Civil Gideon Won’t Fix Family Law,” Yale Law Journal 122: 2106–24 (2013)
Ziv, Neta, “Lawyers Talking Rights and Clients Breaking Rules: Between Legal Positivism and Distributive Justice in Israeli Poverty Lawyering,” Clinical Law Review 11: 209–39 (2004)
Raz, Joseph, “Rights-Based Moralities,” in Waldron, Jeremy, ed., Theories of Rights (Oxford: Oxford University Press 1984), p. 183
Walzer, Michael, Spheres of Justice (New York: Basic Books 1983), p. 33
Waldron, Jeremy, “Two Sides of the Coin,” in Liberal Rights (Cambridge: Cambridge University Press 1993), pp. 5–10
Hohfeld, Wesley Newcomb, “Fundamental Legal Conceptions as Applied in Judicial Reasoning,” Yale Law Journal 26: 710–70 (1917)
Olson, Edgar O., “Is Rent Control Good Social Policy?,” Chicago-Kent Law Review 67: 921–45 (1991)
Schneck, Paul, “Not So Scary After All: In Defense of Patent Trolls,” Forbes (Feb. 1, 2013)
Maxwell, Ian, “In Defense of Patent Trolls,” IP Strategy (May 29, 2013), available at
Dare, Tim, The Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role (Farnham, Surrey: Ashgate 2009), p. 61
Nagel, Thomas, “The Fragmentation of Value,” in Mortal Questions (Cambridge: Cambridge University Press 1979), p. 128
Ross, W. D., The Right and the Good (Oxford: Oxford University Press 1930), p. 21
Rawls, John, Political Liberalism (New York: Columbia University Press 1993), pp. 55–58
Shapiro, Scott J., Legality (Cambridge, Mass: Harvard University Press 2011), pp. 155–56
Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686 (Minn. 1980)
Fisher, William W., et al., eds., American Legal Realism (Oxford: Oxford University Press 1993)
Leiter, Brian, “Legal Realism,” in Patterson, Dennis, ed., A Companion to Philosophy of Law and Legal Theory (Oxford: Blackwell 1996), p. 261
Hart, H. L. A., The Concept of Law (Oxford: Oxford University Press, 2d. edn., 1994), p. 126
Fuller, Lon L., “Positivism and Fidelity to Law: A Reply to Professor Hart,” Harvard Law Review 71: 630–72, p. 663
Hart, H. L. A., “Positivism and the Separation of Law and Morals,” Harvard Law Review 71: 593–629, p. 607
Wilkins, David B., “Legal Realism for Lawyers,” Harvard Law Review 104: 468–524 (1990)
Luban, David, Lawyers and Justice (Princeton: Princeton University Press 1988), p. 75
Luban, David, “The Lysistratian Prerogative: A Response to Stephen Pepper,” American Bar Foundation Research Journal 1986: 637–49, pp. 646–47
Wendel, W. Bradley, Lawyers and Fidelity to Law (Princeton: Princeton University Press 2010), pp. 73–76
Aristotle, Nicomachean Ethics, 1.7, 1097a (Ross, W. D. and Urmson, J. O. trans. 1984)
MacIntyre, Alasdair, After Virtue (Notre Dame, Ind.: University of Notre Dame Press, 2d edn., 1984), pp. 14–51
Fish, Stanley, Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, Mass.: Harvard University Press 1982)
Fiss, Owen M., Objectivity and Interpretation, Stanford Law Review 34: 739–63 (1982)