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Breaking the Dichotomy Habit: The Adversary System and the Ethics of Professionalism

Published online by Cambridge University Press:  09 June 2015

Gavin MacKenzie
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Extract

Litigation lawyers learn early in their practices that although the adversary system functions tolerably well in many civil cases, its defects are nevertheless extensive and profound. Tactics calculated to delay, distort, obfuscate, obstruct and wear down opponents through frustration and cost are common. Questionable conduct is justified by appeals to the ethics of the adversary system. The consequences are often born by clients—through increased cost, delay and conflict—and even by lawyers themselves—through stress, fatigue and dissatisfaction with the quality of life that the practice of litigation in our adversary system brings with it.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 9 , Issue 1 , January 1996 , pp. 33 - 50
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1996

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References

1. Rosenberg, M., “Resolving Disputes Differently: Adieu to Adversary Justice” (1988) 21 Creighton L. Rev. 801 Google Scholar at 816.

2. See Sessums, Stephen W., “Adversarial Co-operation: A Concept that Works” (1992) 9 J. of the Am. Academy of Matrimonial Lawyers 61.Google Scholar

3. See Menkel-Meadow, Carrie, “Portia in a Different Voice: Speculations on a Women’s Lawyering Process” (1985) 1 Berk. Women’s L.J. 39;Google Scholar Pilkington, Marilyn L., “Equipping Courts to Handle Constitutional Issues: The Adequacy of the Adversary System and its Techniques of Proof” [1991] Law Society of Upper Canada Special Lectures 51 Google Scholar at 51; and Wolfram, Charles, Modern Legal Ethics (St. Paul, MN: West Publishing, 1986) at 568.Google Scholar

4. Quoted by Buckley, William F. Jr., Four Reforms (New York: Putnam’s, 1973) at 104.Google Scholar

5. Roscoe Pound, “The Causes of Dissatisfaction with the Administration of Justice”, 29 A.B.A. Rep. 395 (reprinted in 57 A.B.A.J. 348 (1971)), 404. See also Silberman Abella, Rosalie, “The Civil Litigation Process Under Siege: Roscoe Pound Redux” (1994) 28 Law Soc. of Upper Canada Gaz. 213.Google Scholar

6. Roger Fisher, “He Who Pays The Piper” (July 1991) Advocates’ Soc. J. 9. Lawyers’ professional duty to advise settlement of disputes whenever it is possible to do so on a reasonable basis is expressed in the Canadian Bar Association’s Code of Professional Conduct [hereinafter “C.B.A. Code”] chapter III, commentary 6, and in the Law Society of Upper Canada Rules of Professional Conduct [hereinafter “Ontario Rules”], rule 3, commentary 5.

7. Frankel, Marvin E., “The Search for Truth: An Umpireal View” (a Cardozo lecture) (1975) 123 U. Penn. L. Rev. 1031 CrossRefGoogle Scholar at 1033. See also former Frankel’s, Judge book Partisan Justice (New York: Hill & Wang, 1980);Google Scholar and Wolfram, supra note 3 at 567.

8. Higgins, George V., The Friends of Richard Nixon (Boston: Little, Brown, 1975) 226.Google ScholarSee also Huberman, Marvin Joel, “Advocacy, War, and the Art of Strategy” (1992) 26 Law Soc. of Upper Canada Gaz. 26 Google Scholar at 122; and Freedman, Monroe H., Understanding Lawyers’ Ethics (New York: Matthew Bender & Co., 1990) 18,Google Scholarwhere the author argues that lawyers do not initiate grievances between parties, but rather play an indispensable part in the constructive societal process of channelling such grievances into controlled and non-violent means of dispute resolution.

9. See Coughlan, Stephen G., “The Adversary System: Rhetoric or Reality” (1993) 8 C.J.L.S./R.C.D.S. 139 CrossRefGoogle Scholar at 140; and Gerber, R.J., “Victory vs. Truth: The Adversary System and Its Ethics” (1987) 19 Arizona St. L.J. 3 Google Scholar at 6–11.

10. Luban, David, “Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics” (1981) 40 Maryland L. Rev. 451 Google Scholar at 460–61; see also Coughlan, ibid, at 169.

11. Common types of discovery abuse, and obstacles to remedying the problems, are discussed by Hazard, Geoffrey C. Jr., in “Depositions: Modern-Day Inquisitions” (March, 1988) 14 National L. J. 13;Google Scholar by Wolfram, supra note 3 at 594–95; by Wolfson, Michael E., “Addressing the Adversarial Dilemma of Civil Discovery” (1988) 36 Clev. State L .Rev. 17 Google Scholar at 42 and by Sarazen, Robert E., “An Ethical Approach to Discovery Abuse” (1991) 4 Geo. J. of Legal Ethics 459.Google Scholar

12. People of the Slate of Colorado v. Haase, 781 P.2d 80 (Colo. 1989). In an Ontario case, Re Balaban, report adopted by Convocation, May 24, 1984, the Law Society of Upper Canada reprimanded a lawyer publicly for repeatedly making unwarranted, personal and offensive remarks to opposing counsel in an official examiner’s office.

13. Taylor, Stuart Jr., “Sleazy in Seattle” (April, 1994) American Lawyer 5 at 79.Google Scholar

14. Rule 30.03(4) of the Ontario Rules of Civil Procedure, R.R.O. 1990, reg. 194, is an example of a provision requiring lawyers to certify that they have explained the obligation of full disclosure to their clients. Rules of civil procedure also, of course, provide remedies and sanctions for the improper conduct of examinations: see, for example, rule 34.14 of the Ontario Rules of Civil Procedure.

15. In Myers v. Elman, [1940] A.C. 282, the House of Lords upheld an order of atrial judge whereby a solicitor who drew an affidavit on production that to the solicitor’s knowledge omitted mention of a number of highly relevant documents, was ordered to pay one-third of the successful adverse party’s costs. See also Grossman v. Toronto General Hospital (1983), 41 O.R. (2d) 457 (H.C.); Rondel v. Worsley, [1969] A.C. 191 at 227–28 (H.L.) per Lord Reid; and Cherniak, Earl A., “The Ethics of Advocacy” (1985) 19 Law Soc. of Upper Canada Gaz. 153–54.Google ScholarIn a 1991 case, the Law Society of Upper Canada reprimanded a lawyer privately for failing repeatedly to disclose a psychiatric report that he had a duty to disclose to his opponent and to the Court.

16. Wolfson, supra note 11 at 19–20 and 48–51.

17. Spaulding v. Zimmerman, 116 N.W. 2d 704 (1962). See also Luban, David, Lawyers and Justice: An Ethical Study (Princeton, NJ: Princeton University Press, 1988) 149–50;Google Scholarand Luban, David, “The Adversary System Excuse” in Luban, David, ed., The Good Lawyer: Lawyers’ Roles and Lawyers’ Ethics (Totawa, NJ: Rowan & Allenhead, 1983) 115 Google Scholar [hereinafter “Luban, ed.”].

18. In the Lake Pleasant Bodies case, the accused person, Robert Garrow, was convicted by a jury in July 1974. The lawyer who was indicted, Francis Beige, was acquitted the following year. The case is discussed, among other places, in Chamberlain, Jeffrey Frank, “Confidentiality and the Case of Robert Garrow’s Lawyers” (1976) 25 Buffalo L. Rev. 212;Google Scholar Freedman, Monroe H., Lawyers’ Ethics In An Adversary System (New York: Bobbs-Merrill, 1975) at 1–2;Google ScholarWolfram, supra note 3 at 664–65 and Luban, ed., supra note 17 at 53–54.

19. These two examples are adapted from Luban, supra note 10 at 456–59.

20. See Luban, supra note 17 at 1–2 and 8; and Donegan, Alan, “Justifying Legal Practice in the Adversary System” in Luban, , ed., supra note 17 at 123–46.Google Scholar

21. See Kutak, Robert J., “The Adversary System and the Practice of Law” in Luban, , ed., supra note 17 at 174–76;Google Scholar and Cherniak, supra note 15 at 147.

22. Rule 10, commentary 13; commentary 15 to chapter IX of the “C.B.A. Code” is identical.

23. Ontario Rules, rule 10; the C.B.A. Code’s rule gives equal prominence to the two duties; Chapter IX, rule.

24. Ontario Rule 10, commentary 2; see also C.B.A. Code, chapter IX, commentary 1.

25. Steffen, Thomas L., “Truth as Second Fiddle: Re-evaluating the Place of Truth in the Adversarial Trial Ensemble” (1988) Utah L. Rev. 799 Google Scholar at 818.

26. Uviller, H. Richard, “The Advocate, The Truth, and Judicial Hackles: A Reaction To Judge Frankel’s Idea” (1975) 123 U. Penn. L. Rev. 1067.CrossRefGoogle ScholarSee also Luban, supra note 17 at 69.

27. Arnold, Thurman, The Symbols of Government (New Haven: Yale University Press, 1935) at 145.Google ScholarSee also Smith, Beverley G., Professional Conduct for Canadian Lawyers (Toronto, ON.: Butterworths, 1989) at 121;Google Scholar and Freedman, supra note 8 at 13–14.

28. See Kutak, Robert J., “The Adversary System and the Practice of Law” in Luban, , ed., supra note 17 at 174;Google Scholarand Eshete, Andreas J., “Does a Lawyer’s Character Matter?” in Luban, , ed., supra note 17 at 270–74.Google Scholar

29. See Freedman, Monroe H., “Professional Responsibility of the Civil Practitioner: Teaching Legal Ethics in the Contracts Course” (1969) 21 J. of Legal Ed. 569 Google Scholar at 569–70; and Freedman, supra note 18 at 2–3.

30. Codice Di Procedura Penale enacted by Presidential Decree—Law No. 447 of September 22, 1988, No. 250 Gazz. Uff. (October 24, 1988) (effective October 24, 1989).

31. Pizzi, William T. and Marafioti, Luca, “The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation” (1992) 17 Yale J. of Int’l Law 1 Google Scholar at 6.

32. Fassler, Lawrence J., “The Italian Penal Procedural Code: An Adversarial System of Criminal Procedure in Continental Europe” 29 Columbia J. of Transnational Law 245 Google Scholar at 272–73; see also Zander, Michael, “From Inquisitorial to Adversarial—the Italian Experiment” (1991) 141 New Law J. 678:Google Scholarand DelDuca, Louis F., “An Historic Convergence of Civil and Common Law Systems—Italy’s New Adversarial Criminal Procedure System” (1991) 10 Dickinson J. of Int’l Law 73.Google Scholar

33. Pound,supra note 5 at 349; see also Luban, supra note 17 at 58–63; and Greenspan, Edward L., “The Future Role of Defence Counsel” 51 Sask. L. Rev. 199 Google Scholar at 208.

34. See Wolfram, supra note 3 at 564.

35. The duty of confidentiality is expressed in theC.B.A. Code, chapter IV and in Ontario Rule 4; see also Chamberlain, supra note 18.

36. See text accompanying note 10, supra. See also Wessel, Milton, The Rule of Reason (Reading, Massachusetts: Addison-Wesley, 1976) at 9;Google Scholar Held, Virginia, “The Division of Moral Labour and the Role of the Lawyer” in Luban, , ed., supra note 17, 60 Google Scholar at 66–71; and Wolfram, supra note 3 at 566–67.

37. Schwartz, Murray L., discusses the postulates of equal adversariness and equal competence in “The Zeal of the Civil Advocate” in Luban, , supra note 17, 150 Google Scholar at 153–54.

38. See David, Luban, “The Adversary System Excuse” in Luban, , ed., supra note 17 at 99;Google ScholarWolfram, supra note 3 at 568 and 619; Pannick, David, Advocates (Oxford: Oxford University Press, 1992) at 168;Google Scholar and Belliotti, Raymond A., “Our Adversary System: In Search of a Foundation” (1988) 1 Can. J. of Law and Juris. 19 CrossRefGoogle Scholar at 23—24.

39. Rhode, Deborah L., “An Adversarial Exchange on Adversarial Ethics: Text, Subtext, and Context” (1991) 41 J. of Legal Ed. 29 Google Scholar at 36; see also Rhode, Deborah L., “Ethical Perspectives on Legal Practice” (1985) 37 Stan. L. Rev. 589;CrossRefGoogle Scholarand Stempel, Jeffrey W., Review of Stephen Landsman, Readings on Adversarial Justice: The American Approach to Adjudication (1989) 55 Brooklyn L. Rev. 165 Google Scholar at 181.

40. See Wolfram, supra note 3 at 566; Smith, supra note 27 at 121–22; and Freedman, supra note 8 at 13–42.

41. Frankel, supra note 7 at 1039. See also former Frankel’s, Judge book Partisan Justice (New York: Hill & Wang, 1980).Google ScholarFormer Judge Frankel’s views are discussed by Freedman, Monroe H., “Judge Frankel’s Search for Truth” (1975) 123 U. Penn. L. Rev. 1060;Google Scholar Gerber, Judge R.J., “Victory vs. Truth: The Adversary System and Its Ethics” (1987) 19 Arizona St. L.J. 3;Google Scholarand Harold, See, “An Essay in Legal Ethics and the Search for Truth” (1989–90) 3 Geo. J. of Legal Ethics 323.Google Scholar

42. Sterling Rubber Ltd. v. Canadian Imperial Bank of Commerce (17 June 1991), 9233/86 (Ont.Gen. Div.).

43. Bono, Edward de, I Am Right - You Are Wrong (London: Viking 1990) particularly at 5,Google Scholar 194–96 and 207; see also Menkel-Meadow, supra note 3.

44. Stempel, supra note 39 at 186.

45. Sharma, Robin S., “The Adequacy of the Adversarial System in Charter Litigation” (1993) 3 Nat. J. of Con. Law 99 Google Scholar at 116.

46. Luban, David, “The Adversary System Excuse” in Luban, , ed., supra note 17 at 115;Google Scholarsee also Graf Huber, Joseph & Baumrin, Bernard H., “The Moral Obligations of Lawyers” (1988) 1 Can. J. of Law and Juris. 105 CrossRefGoogle Scholar at 111–13.

47. Stempel, supra note 39 at 186.

48. See Coughlan, supra note 9 at 140.

49. The Ontario Court of Appeal held in Perini Ltd. v. Toronto Parking Authority (1975) 6 O.R. (2d) 363 (Ont. C.A.) that parties have no right to withhold production on such a basis.

50. See e.g. Ontario Rules of Civil Procedure, R.R.O. 1990, reg. 194, rules 30 and 31; see also Wasserstrom, Richard, “Roles and Morality” in Luban, , ed., supra note 17, 25 Google Scholar at 36.

51. R.v. Stinchcombe (1991), 8 C.R. (4th) 277 at 282; see also Coughlan, supra note 9 at 161. Similarly, in the United States, the Federal Rules of Civil Procedure have eliminated the surprise and mystery which, according to one judge were once “as much a part of the procedure as the underlying disputes to be resolved”: Lambros, Thomas D., “The Federal Rules of Civil Procedure: A New Adversarial Model for a New Era” (1984) 50 U. of Pitt. L. Rev. 789.Google Scholar

52. The Divorce Act, S.C. 1986, c.4, s.9.; see also Coughlan, supra note 9 at 159.

53. C.B.A. Code, chapter III, commentary 6, and chapter IX, commentary 8; Ontario rule 3, commentary 5 and rule 10, commentary 6; British Columbia rules, chapter 1, rule 3(3).

54. C.B.A. Code, chapter III, commentary 6; Ontario rule 3, commentary 5.

55. C.B.A. Code, chapter IX, commentary 2(a); Ontario rule 10, commentary 2(a).

56. C.B.A. Code, chapter XVI, commentary 3; Ontario rule 14, commentary 3; see also C.B.A. Code, chapter IX, commentary 7; and Ontario rule 10, commentary 5.

57. C.B.A. Code, chapter XVI, commentary 4; Ontario rule 14, commentary 4.

58. C.B.A. Code, chapter IX, commentary 2(h); Ontario rule 10, commentary 2(h); see also Coughlan, supra note 9, at 164–65.

59. Ontario Rule 10, commentary I. The C.B.A. Code contains no equivalent provision, but the fact that the rule creating the lawyer’s duty employs the word “tribunal” makes it clear that the duty extends to proceedings before administrative boards.

60. See Dwyer, Joan, “Overcoming the Adversarial Bias in Tribunal Procedures” (1991) 20 Fed. L. Rev. 252;Google Scholar Robardet, Patrick, “Should We Abandon the Adversarial Model in Favour of the Inquisitorial Model in Commissions of Inquiry?” [1990] Dal. L.J. 1ll; Google Scholar McRuer, J.C., Report of the Royal Commission of Inquiry into Civil Rights (Toronto, ON: Queen’s Printer, 1968) at 131–32;Google Scholarand Glicksman, Elliott, “Judicialization of the Administrative Process: Adversarial Risks for Fairness” (1991) 42 So. Carolina L. Rev. 345.Google Scholar

61. Pilkington, supra note 3 at 51; see also Sharma, supra note 45; and Chayes, A., “The Role of the Judge in Public Law Litigation” (1976) 89 Harv. L. Rev. 1281.CrossRefGoogle Scholar

62. See Coughlan, supra note 9 at 160–61; and Sessums, supra note 2 at 73–74.

63. Otto, Randy K., “Bias and Expert Testimony of Mental Health Professionals and Adversarial Proceedings: A Preliminary Investigation” (1989) 7 Behavioural Sciences and the Law 267.CrossRefGoogle ScholarSee also Slovenko, Ralph, “The Role of the Expert (With Focus on Psychiatry) In the Adversarial System” (1988) J. of Psychiatry and the Law 333;Google Scholar and Dwyer, supra note 60 at 837.

64. Vakauta v. Kelly (1989), 87 A. L. R. 633, Hunt J.

65. See Langbein, J.H., “The German Advantage in Civil Procedure” (1985) 52 U. Chi. L. Rev. 823 CrossRefGoogle Scholar at 837.

66. Gerber, supra note 9 at 12.

67. See Coughlan, supra note 9 at 143, 170.

68. Ibid. at 143, 170.

69. Wolfson, supra note 11 at 19–20, 45, 48.

70. Ibid, at 65.