02_Ethics - Dispute Resolution and Legal Ethics 02 Ethics...

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Dispute Resolution and Legal Ethics 02 – Ethics (Adversarial) Page 1 of 21 P ART II E THICS IN THE A DVERSARY S YSTEM 1 P ROBLEMS WITH A DVERSARIAL A DVOCACY 1.1 A Critique of Adversarial Justice Several criticisms can be made of the normative framework underpinning the adversarial system. 1 Excessive adversarialism leads to disillusioned clients ± The adversarial ideal values client autonomy highly ± The ‘adversarial imperative’ is to leave ‘no stone unturned’: lawyers are obliged to exploit any advantages the system affords the client ± Clients must often pay lawyers a large portion of the damages they are awarded o See, eg, Dickens, Bleak House o ‘The lawyer-client relationship between Richard [client] and Vholes [lawyer] is like that of a drug addict and his supplier’ ± Clients can sometimes feel disempowered and unable to obtain justice ± This is sometimes caused by a communication problem between lawyer and client ± However, sometimes it is deliberate: some lawyers actively feed off disputes, selling the illusion that the legal system might result in a good outcome for the client, and profiting from the maintenance of that illusion ± The lawyer benefits by selling the client something that is not necessarily in their financial or emotional best interests 2 The adversarial system raises the cost of justice ± Parties engage in a legal arms race to increase their representation; lawyers are used as symbolic weapons, creating subsidiary technical disputes and raising the costs associated with resolving the real issues o Issues are often merely procedural: adversarialism turns conflicts into matters of procedure and not substance, form but not purpose o Adversary justice turns disputes into a battle between gladiator lawyers over minor points of procedure, rather than discussion of the substantive merits of each case o All too often, the party with the better lawyer/more resources wins ± The system becomes more expensive for everyone o An adversary system escalates costs and resources o As a function of said costs, it creates unrealistic expectations o Each side matches and exceeds the resources of the other in a kind of mutually assured destruction ± Makes the whole system inaccessible to many ± It often has the effect of defeating just causes; ‘Rolls Royce’ justice is offered to the rich/knowledgeable, while the poor/ignorant bear the full burden of the law
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Dispute Resolution and Legal Ethics 02 – Ethics (Adversarial) Page 2 of 21 3 Adversarial advocacy can manipulate truth ± As where lawyers counsel the destruction of evidence of another liability- minimisation tactic (see, eg, McCabe ) 4 An adversary system increases the power imbalance between the represented/resourced and unrepresented/poor (see, eg, ‘McLibel’) 5 Advocacy slows down dispute resolution, stretching out conflicts into spans of years, wasting court resources and burdening the parties 1.2 Who Bears Responsibility for Justice? An argument in favour of exonerating lawyers might run thus:
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This note was uploaded on 08/17/2010 for the course BUSLAW 730-410 taught by Professor N/a during the Three '10 term at Melbourne Business School.

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02_Ethics - Dispute Resolution and Legal Ethics 02 Ethics...

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