74 Geo. Wash. L. Rev. 1 (2005-2006)
Reconceptualizing Advocacy Ethics

handle is hein.journals/gwlr74 and id is 13 raw text is: Reconceptualizing Advocacy Ethics
Fred C. Zacharias* & Bruce A. Green**
Table of Contents
I.  Rush  v.  Cavenaugh  ...............................................  6
II. Justice Gibson's Secondary Themes and Their Enduring
Significance  ......................................................  8
A.  Rush's Secondary  Themes  ....................................  10
1. Lawyers' Obligations to Pursue Appropriate Goals .........  10
2.  Lawyers' Personal Rights  .................................  11
3.  Systemic  Imperatives ......................................  12
B. The Tension Between the Early Interpretation of Rush and the
Modern Conception of Lawyers' Responsibilities ...............  12
C. The Significance of Gibson's Themes ..........................  15
1.  Pursuing  Appropriate  Goals ...............................  17
2.  Lawyers' Personal Rights  .................................  18
3.  Systemic  Imperatives ......................................  20
III.  Professional Conscience  ..........................................  21
A. Distinguishing Forms of Conscience . ........................  22
B. Early Interpretations of Rush and Its Influence .................  24
C. Support for the Distinction Between Professional and Personal
Conscience .......................................... ..    .30
1. Gibson's Patent Skepticism Regarding Purely Personal
Conscience  ...............................................  30
2. The Regulatory Context in Which Rush Was Decided .......    32
IV. The Significance of Rush in Understanding the Development of
Professional Regulation  ..........................................  36
A. Understanding the Codification Process ........................  36
B. Understanding Interstitial Judicial Regulation ..................  39
C. Understanding the Modern Codes' Approaches to Lawyers'
Obligations  of Fairness  .......................................  41
V. The Significance of Rush in Understanding the Substance of Modern
A dvocacy  Standards ..............................................  44
A. Post-Rush Developments: How Modern Professional Regulation
Squares with Justice Gibson's Approach .......................  45
B. Implications for the Discretionary Provisions of the Modem
E thics  C odes  .................................................  51
C. Explaining Theoretical Puzzles, or Anomalies, in Professional
Responsibility Commentary and Regulation ....................  57
1.  Susan  Koniak's Nomos ....................................  57
* Herzog Endowed Research Professor of Law, University of San Diego School of Law.
B.A. 1974, Johns Hopkins University; J.D. 1977, Yale Law School; LL.M. 1981, Georgetown
University Law Center. The authors thank Professors Nancy Moore, Deborah Rhode, Ted
Schneyer, and Bill Simon for their helpful comments on an earlier draft of this Article. The
authors also express their appreciation for the excellent research assistance of Gabrielle Bunker,
Dana Bushong, and Philip Nelson and the generous research support provided by their schools,
the Fordham University School of Law and the University of San Diego School of Law.
** Louis Stein Professor of Law and Director, Louis Stein Center for Law and Ethics,
Fordham University School of Law. B.A. 1978, Princeton University; J.D. 1981, Columbia Law
School.
November 2005 Vol. 74 No. 1

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