Legal Ethics in an Adversary System: The Persistent Questions
![handle is hein.journals/hoflr34 and id is 651 raw text is: LEGAL ETHICS IN AN ADVERSARY SYSTEM:
THE PERSISTENT QUESTIONS
Deborah L. Rhode*
It is a particular pleasure to be among so many friends and
distinguished colleagues, and to have an occasion to honor one of the
founding fathers of our field. As many of you doubtless noted, my title is
a variation on two of Professor Freedman's earliest and widely
influential works.' This event is a fitting occasion for reflection on what
has changed and what has remained the same during the last four
decades since the first of these works appeared. A brief keynote address
cannot, of course, chronicle the evolution of the entire field of legal
ethics. But it does provide an opportunity to trace several themes that
have been central to contemporary debates and to Professor Freedman's
own contributions: autonomy, access, and accountability. First, what is
the role of client autonomy in the adversary system, and how does it
compare with other values? Second, what are the challenges of
practicing in a system that enshrines equal access to justice in principle,
but violates it routinely in practice? And finally, how do we ensure an
appropriate measure of public accountability for professional conduct?
Let me begin with a personal reminiscence, which may cheer some
who toil in this specialty and occasionally wonder whether it ever makes
a difference. When I was in law school at Yale in the late 1970s,
Professor Freedman came to debate Geoffrey Hazard on the subject of
much of his early work: the tension between lawyers' responsibilities to
* Ernest W. McFarland Professor of Law, Director of the Center on Ethics, Stanford
University. B.A., J.D. Yale University. Where this lecture draws on recent publications, including
Deborah L. Rhode, ACCESS TO JUSTICE (2004), and PRO BONO IN PRINCIPLE AND IN PRACTICE
(2005), the footnotes will refer to those works without replicating their extensive references. The
author is grateful to David Luban and Alan Dershowitz for comments on an earlier version of this
lecture.
1. See generally MONROE H. FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM
(1975) [hereinafter FREEDMAN, ADVERSARY SYSTEM]; Monroe H. Freedman, Professional
Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV.
1469 (1966).](ViewImageLocal?handle=hein.journals/hoflr34&div=30&collection=&method=preview&ext=.png&size=3)
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Legal Ethics in an Adversary System: The Persistent Questions
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