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Article

Abstract

The growing public disquiet about lawyer ethics is not mainly because people think lawyers neglect their professional standards. Rather, the main problem is the belief among lawyers that the duty of loyalty to clients requires a lawyer to mislead. Specifically, the ethical duty of confidentiality and the ethical duty of zealous advocacy are interpreted together to mean that lawyers must conceal some facts (‘confidentiality‘) while forcefully asserting others. This mis-coupling of these two key ethical duties has an inevitable tendency to produce a kind of partial-truth advocacy in which the lawyer knowingly distracts attention from the truth and fosters misconceptions in the minds of jurors and others. In the end, lawyers frequently succeed in creating false impressions or discrediting the truth and, as a result, people feel they cannot trust lawyers to be straight. Distrust of lawyers is not, however, just an image problem of an insular profession. Our basic civic order relies on the legal system and public respect for it. If the public cannot trust the lawyers who are entrusted with the legal system, there is a problem that casts a shadow on the integrity of the very concept of rule of law. This essay addresses these issues and proposes one possible solution. Its objective is to provide a basis for thinking about how, concretely, we can move from the present stage of lawyer ethics to a more advanced stage in which the legal profession will become a truly forthright and credible social institution.

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