1 Schwartz, Murray L., The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669 (1978).Google Scholar

2 Id. at 673.Google Scholar

3 Id. at 673-74.Google Scholar

4 Id. at 697.Google Scholar

5 A primary source for the discussion that follows is David Luban, The Adversary System Excuse, to appear in David Luban, ed., The Good Lawyer: Lawyers' Roles and Lawyers' Ethics, Maryland Studies in Public Philosophy (Totowa, N.J.: Rowman & Allanheld, in press). In adumbrating these justifications, as reflected in the literature, my concern is not with their validity or cogency. It is to test whether any militates rejection of the two postulates. In this testing I shall refer only to those justifications that seem to implicate the postulates.Google Scholar

6 It is possible that a biased tribunal might also arrive at the truth; even that in some cases that bias is essential to overcome other defects in the process. Nevertheless, the position that impartiality is overall necessary for the truth is the most plausible position.Google Scholar

7 Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 Yale L.J. 1060 (1976); Monroe H. Freedman, Lawyers' Ethics in an Adversary System (Indianapolis, Ind.: Bobbs-Merrill Co., 1975); David Mellinkoff, The Conscience of a Lawyer (St. Paul, Minn.: West Publishing Co., 1973).Google Scholar

8 See Luban, supra note 5.Google Scholar

9 Id. at 9-12.Google Scholar

10 See Lowery v. Cardwell, 575 F.2d 727 (9th Cir. 1978); Wolfram, Charles W., Client Perjury, 50 S. Cal. L. Rev. 809 (1977).Google Scholar

11 Wolfram, Charles W., Client Perjury: The Kutak Commission and the Association of Trial Lawyers on lawyers, Lying Clients, and the Adversary System, 1980 A.B.F. Res. J. 964, 977–78.Google Scholar

12 ABA's Model Code of Professional Responsibility DR 7-103(B) (Aug. 1980).Google Scholar

13 See, e.g., Smith v. Phillips, 455 US. 209 (1982); United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963).Google Scholar

14 Model Code of Professional Responsibility DR 7-103(A) (Aug. 1980).Google Scholar

15 Cal. Bus. & Prof. Code § 6068(c) (St. Paul, Minn.: West Publishing Co., 1963).Google Scholar

16 It is not difficult to think of circumstances in which the distortion is on the other side, as, e.g., a prosecution in a relatively small county against organized crime or wealthy defendants.Google Scholar

17 It is important to make clear that what is at issue in the text is the set of “intrasystem” rules, i.e., the set of rules designed to implement the adversary system itself. Rules based on values external to the system may be applied within the system in such a way as to interfere with the ascertainment of truth within the system. The exclusionary rule and the spousal privileged-communication doctrine would be illustrations of such rules, which by excluding probative evidence interfere with the ascertainment of truth. In each such case, the defeating of truth is a recognized cost of the protection of other values, as deterrence of illegal police behavior in the first illustration and the protection of the marriage in the latter. Thus, Marvin Frankel's proposed rules of professional responsibility for the advocate begin: “In his representation of a client, unless prevented from doing so by a privilege reasonably believed to apply.” Marvin E. Frankel, The Search for Truth, 123 U. Pa. L. Rev. 1031, 1057 (1975). See text infra at note 19. The issue addressed in the text is whether there are intrasystem values that require subordination of the truth.Google Scholar

18 See generally Cleary, Edward W., Presuming and Pleading: An Essay on Juristic Immaturity, 12 Stan. L. Rev. 5 (1959).Google Scholar

19 Frankel, supra note 17.Google Scholar

20 E.g., Model Code of Professional Responsibility DR 7-106(B)(1) (Aug. 1980).Google Scholar

21 Of course the fact that the ultimate outcome in both civil and criminal proceedings is a judicial decree does not mean that there is no difference between a criminal and a civil proceeding in the ways in which human dignity is to be preserved. The role of the state as civil judgment enforcer is significantly different from its roles of prosecutor, adjudicator, sentencer, and punisher.Google Scholar

22 Schwartz, supra note 1, at 669.Google Scholar

23 See Lassiter v. Department of Social Services, 452 US. 18 (1981).Google Scholar

24 I am not here concerned with problems of res judicata, collateral estoppel, or the like.Google Scholar

25 See supra note 15.Google Scholar

26 Model Code of Professional Responsibility EC 7-8, 7-9 (Aug. 1980).Google Scholar

27 The illustration is the same as one used in Schwartz, supra note 1.Google Scholar

28 Alan Donagan, Justifying Legal Practice in the Adversary System, to appear in Luban, ed., supra note 5.Google Scholar

29 452 US. 18 (1981).Google Scholar

30 424 U.S. 319 (1976).Google Scholar

31 In constitutional terms, Lassiter may be regarded as either progressive or retrogressive. It is progressive in that for the first time the Court has recognized a right to counsel in civil litigation in cases other than those involving loss of liberty. It is retrogressive in that the result in Lassiter itself suggests a grudging application of the right.Google Scholar

32 In re Gault, 387 U.S. 1 (1967), held that a juvenile cannot be adjudicated a juvenile delinquent without due process of law, which includes provision of an attorney.Google Scholar

33 Both Lassiter and Mathews involved actions brought by the government to terminate legal rights, and the cases cited in the various opinions involved the same circumstances.Google Scholar

34 334 U.S. 1 (1948). In that case, the Supreme Court of the United States held that a state court in junction against the enforcement of a racially restrictive covenant on the alienation of real property constituted “state action” for the purposes of the Fourteenth Amendment. The rationale and scope of this concept of state action has been the subject of extensive scholarly puzzlement and has not been the subject of extensive subsequent judicial development.Google Scholar

35 In its Formal Opinion 314, the American Bar Association Committee on Professional Ethics put the case for a different standard in advising a client with respect to tax matters: “A wrong, or indeed sometimes an unjust, tax result in the settlement of a controversy is not a crime.” ABA Comm. on Professional Ethics and Grievances, Formal Op. 314 in 51 A.B.A.J. 671, 672 (1965).Google Scholar

36 See text supra at part III.Google Scholar