Article. Abstract:
This
article considers and critiques the history of civil litigation conduct
standards from ancient times to the present. For hundreds of years in
both England and France, truth and reasonable behavior were constant
duties owed to the judicial system itself, and they remain paramount
today. The primary evolution has come with regard to whether any of
three additional court duties - just cause, motive or objective merit -
also take precedence over client duties. Early European litigation
standards varyingly imposed versions of each, and in nineteenth century
America, lawyers and scholars debated alternative models for proper
litigation advocacy, ranging from a full client-oriented view of zealous
advocacy to a lawyer morality view of just cause. This led to varying
regulatory positions, starting with the Field Code in 1850 and
culminating with the ABA’s model ethics compilations of the current day.
In this process, zealous advocacy rose and ebbed as an ideal, but it
never overrode core duties to the court. The broad duty of just cause
largely transformed into a more narrow objective merit standard, but
objective merit, like truth and reasonable behavior, remains superior
over conflicting client duties.
This history is important
because it informs and narrows the ongoing modern debate as to proper
litigation advocacy. Although civil litigation attorneys often cite to
an ideal of zealous advocacy, zeal is not a black letter duty today and
it never has been a paramount duty in formal regulatory standards.
Duties to the court always have been superior. The question instead has
been which court duties trump client duties. Even this question is
narrow. The question over time has not been whether truth and reasonable
behavior override client advocacy but what additional court duty also
limits a lawyer’s advocacy - just cause, proper motive or objective
merit.