December 01, 1998
The remarks below are extended excerpts from a presentation made by Judge Alito at the 1997 National Lawyers Convention, entitled "The Crisis in the Legal Profession."
This conference examines the impact of lawyers and the legal system "on government, freedom, responsibility and virtue." The conference brochure presents as a benchmark the lawyer/statesman who played such a prominent role in our country’s early years. I want to return to that ideal in addressing the particular topic that is before us in this segment of the conference — the role of the lawyer in the criminal justice system. At the risk of comparing two things that are really not comparable, I would like to compare that ideal with our current understanding of the role of the lawyer in the criminal justice system.
The lawyer/statesman ideal has been aptly described by Dean Anthony Kronman in his book The Lost Lawyer. Dean Kronman, in his presentation this morning, explained this ideal much better than I can. To capsulize his remarks, Dean Kronman believes that the lawyer/statesman, the outstanding lawyer under that ideal, is a devoted citizen who cares about the public good and is prepared to sacrifice his own well-being for it.
The help that the lawyer/statesman provides to clients, Dean Kronman argues, is not merely "instrumental." He is not simply a servant of his client in that sense. One of his most important responsibilities "is to offer advice about ends." Although Dean Kronman does not suggest that it is possible to restore fully the ideal of the lawyer/statesman, he does ask whether some of the central values of that ideal can be recaptured.
How does this ideal compare with our current understanding of the role of the lawyer in the criminal justice system? To examine that, we must look at our current understanding of the nature of our system. As numerous Supreme Court opinions and other pronouncements have reminded us, our criminal justice system is an accusatorial or an adversarial system and not an inquisitorial system. When an American judge or lawyer draws this sharp distinction between the adversarial and the inquisitorial, the clear message almost always is that the adversarial is good, the inquisitorial is bad, and any effort to depart from the purely adversarial view is something that must be resisted.
Our criminal justice system, however, is not purely adversarial. Consider, for example, the typical criminal case with a prosecutor and a defense attorney. At least one of these — the prosecutor — is not supposed to behave like a single-minded opponent or adversary of the defendant. As the Supreme Court has said in a very famous passage that almost every prosecutor and criminal defense attorney in the country has memorized, the prosecutor is not supposed to be the representative of an ordinary party to a controversy. The objective of the prosecution in a criminal case is "not that the prosecution shall win the case but that justice shall be done." This is hardly a description of a single-minded adversary or opponent. When one of the two adversaries is not supposed to act like a pure adversary, it is difficult to see how our system can be aptly described as entirely adversarial.
I next want to turn to the role of the criminal defense attorney. In doing so, it is not my purpose to pick on criminal defense attorneys or to suggest that they are venal and prosecutors are virtuous. Prosecutors know the Berger script. They know how they are supposed to behave, and therefore, when they write or speak about the role of the prosecutor, it is always a version of those requirements.
Defense attorneys, on the other hand, can be more colorful and uninhibited in describing the role that they understand themselves to be playing. Here is an example, and I don't think it's atypical. "A Criminal Lawyer and His Field of Dreams" appeared in the March 1997 issue of The Champion, a magazine published by the National Association of Criminal Defense Attorneys. The author, after referring to General Patton and General MacArthur, confesses that he has often "wanted to walk into the courtroom wearing a pair of matching ivory-handled revolvers, sunglasses and a leather jacket. The criminal defense lawyer, like the two great generals, sees himself as a gladiator and the courtroom as his arena of battle. Like MacArthur and Patton, he is an ancient knight fighting dragons, although his dragons are the bureaucracy and the constabulary."
This gladiatorial image is wildly inaccurate. It certainly does not describe most of the criminal defense attorneys that I encountered when I was a United States Attorney, nor does it describe my former prosecutorial colleagues who have since entered private practice and have become criminal defense attorneys. A major segment of the white-collar criminal defense bar spends a great deal of time guiding clients, witnesses and other people on the periphery of investigations, through investigations with the objective, not of meeting the prosecution in a battle to the death in the courtroom, but rather of getting the person through the investigation without having a criminal charge filed. They often are quite successful in this effort. Lawyers who engage in this type of practice have many subtle and highly-developed skills, but those skills cannot be described as gladiatorial.
Even when criminal charges are filed, most criminal cases are resolved, not by a trial in the courtroom arena, but by a negotiated plea agreement. This often features an agreement by the defendant to cooperate with authorities. This too is hardly a gladiatorial resolution. Instead of the image of the two gladiators who fight to the death in the courtroom, a more apt image of what actually occurs is two gladiators who march into the arena with their armor and their weapons and then promptly throw down their armor, throw down their weapons, and go off to a little table in the shade and negotiate a deal. The image of the criminal defense attorney and the prosecutor as gladiators is quite inaccurate when you consider the whole range of activities in which they engage.
The description of our criminal justice system as purely adversarial, although misleading, does reflect an ingrained way of thinking. It affects the way we expect lawyers to behave, and in some instances, the way that they do behave. In the courtroom, this manifests itself in a number of ways. For one thing, the gladiatorial conception of the role implies to many lawyers an obligation to do everything on behalf of their client within the bounds of the law. That can easily, and wrongly, be translated into an obligation of the lawyer to tip-toe up to the boundaries of the law and perhaps even to take the proverbial bad-man's approach of doing whatever they can get away with. In court proceedings, this manifests itself in numerous ethical problems, such as instances when either a prosecutor or defense attorney calls a witness whom the lawyer has some reason to believe will or has committed perjury.
In the short time remaining this afternoon, I do not want to talk much about these events that occur in courtrooms, not because I think they are unimportant, but because they have already been much discussed. The best way, at least the most direct way, of preventing such wrongdoings is by formulating and firmly enforcing sound rules governing the behavior of lawyers in court proceedings.
I want, instead, to discuss what happens when this gladiatorial image is extended outside the courtroom and outside the context of court proceedings themselves. I will focus on two areas, which I will loosely call legislation and speech on matters of public concern.
Turning to legislation, let us assume that in a criminal case, it is acceptable for a defense lawyer to devote a single-minded interest to the defense of the client. Is it also acceptable for that lawyer to take the same approach for the entire category of clients he has had in the past and may represent in the future when the lawyer steps outside the context of the court proceeding and takes a position on the rules that should govern the behavior of the police or prosecutors or defense attorneys or any other aspect of the criminal justice system?
There is a tendency for this to occur, for the gladiatorial concept to be taken outside of the court proceedings. Let me give you two examples. The first occurred to me in reading an article by a prominent criminal defense attorney. After setting out the traditional gladiatorial role of the defense attorneys, he encouraged defense lawyers to do everything possible for their clients within the boundaries of the law. Then, within the space of a couple of paragraphs, he moved to discussing the legislative agenda and blasted the proposed victim’s rights amendment. It is not my purpose to take a position on that amendment. I have not examined that amendment closely and have not studied possible arguments for or against it. It is my purpose, however, to comment on what disturbed me about the article and that was the rapid transition from doing anything that one can for the client in the context of the criminal case to taking a position against the amendment in the context of legislation.
A stronger example occurs in the formulation of ethics rules. These rules are adopted by bar associations where practitioners have much more power than they generally have in legislative bodies. Consider, for example, the model rule that governs the disclosure of confidential information obtained from a client in the course of representation. This is Rule 1.6, and it says that a lawyer may — not must — reveal such information to the extent necessary to prevent a client from committing a criminal act that the lawyer believes will "likely result in imminent death or serious bodily injury." The lawyer is not required to make disclosure. Any old kind of death is not sufficient, it has to be imminent death. It is not sufficient that this might possibly occur, it must be likely to occur.
When the model rules were formulated, a hotly debated subject was whether mandatory disclosure should be required, and the proponents of mandatory disclosure lost. Thus, if I were a criminal defense attorney and a client told me that he was planning to kill someone or to bomb an office building or airliner, I would not be under an ethical obligation to disclose that information, although I would be permitted to do so. This seems to me to be an extension of the gladiatorial role far beyond reasonable bounds.
This gladiatorial model has been similarly and unreasonably extended into speech on matters of public concern. The way this has happened was illustrated very nicely by Professor Richard Uviller in his book Virtual Justice. Professor Uviller created the imaginary case of a lawyer, Sylvia Meade, and a politician, Senator Hardy, who was under indictment for corruption. Meade had some success defending clients, but she wanted to move on to a higher level of representation with more visibility. Hardy had a rather unsavory past concerning his relations with women, and he wanted to hire Meade because he thought she would have public credibility. He wanted to hire Meade to defend him not just in the courtroom, but also in the media.
Meade asked Hardy rather perfunctorily about the truth of the charges against him. Hardy stated that the truth was that he needed a vigorous defense outside the courtroom as well as in it. "I am entitled to no less, right, and you have agreed to give it to me." Meade then stepped out in front of the cameras in front of the courthouse, and vouched for Hardy's innocence. Although she knew very little about the case, she denounced the prosecution as politically motivated.
To spin this story out even further, if the case gets significant media attention, there could be other appearances. Meade might be invited to appear on talk shows, particularly if she can connect this prosecution to a broader social theme. If she wins the case, she might even get her own talk show. Throughout, she continues to take strong public positions for her client.
This hypothetical case is not unrealistic. Consider the comments by a very well-respected lawyer who wrote an article entitled "Why Lawyers Lie". The author begins by setting out the traditional gladiatorial role of the criminal practitioner. The lawyer, he writes, is not quite given James Bond's license to kill, but it is proper and, at times, even necessary for a criminal practitioner to lie to the public and to the media on behalf of a client. The public statements of prosecutors and defense counsel, he says, must be viewed with the greatest skepticism.
The author cites two well-known cases as examples. He writes:
Robert Shapiro, who asserted in one of his unending series of interviews that [O.J.] Simpson was innocent, was not the Shapiro one might have met before he was retained by Simpson. He is now Simpson's Shapiro, Simpson's representative, sometimes Simpson's flak. Whatever he says is said for Simpson's benefit, not because it is true.
So with Alan M. Derschowitz when he was representing Mike Tyson. The frequent public assertions by Dershowitz of Tyson's innocence after he began to represent him were not those of the Bill of Rights-protecting Harvard Law School professor Alan Derschowitz. The Tyson-defending Derschowitz was, in the end, little more than a better-spoken Tyson, Tyson in Harvard garb.
These are the author's words, and I do not suggest that this is my view of Mr. Shapiro’s or Professor Dershowitz’s remarks. If, however, that is in fact what a criminal defense attorney or prosecutor does in public speech, I think it is something that the profession should strongly oppose. If the profession accepts the proposition that it is permissible to lie in public on behalf of a client for media purposes, then the criminal bar will forfeit any vestige of public respect. This damage, I fear, will not be confined just to criminal practitioners. As some have noted, including Professor Mary Ann Glendon in her book A Nation Under Lawyers, the attitude of criminal practitioners, prosecutors and defense attorneys, has had an important influence on the attitude of aggressive civil litigators. The latter, in turn, influence the stance of the entire bar.
In conclusion, I think that the profession should talk about the nature of our criminal justice system and the role of lawyers in more accurate, more measured and more nuance terms.
The gladiatorial concept, should be confined to the precincts of the courthouse and court proceedings where they are subject to control by rules.
*Samuel A. Alito, Jr. is a Judge on the United States Court of Appeals for the Third Circuit. From 1987 to 1991 Judge Alito served as United States Attorney for the District of New Jersey.