8.0 Legal ethics: Agential versus moralistic

Ethical rules governing legal practice are framework considerations in that they help determine broadly what cases are brought to trial, what arguments are brought to bear, and with what effect they are presented to court or jury. Professional ethics purport to have two purposes—public protection and consumer protection—but ethical rules for the practice of law should protect lawyers' clients exclusively. The law should eschew contra-agential ethics; ethics that purport to serve the general public thwart loyal service to lawyers' client principals. Since legal representation is a prerequisite to parties' exercising various fundamental rights, provisions curtailing attorney responsiveness to client interests compromise litigants' fundamental rights.

Contra-agential ethical rules for lawyers (also termed moralistic or prosocial ethics) harm both clients and lawyers. Contra-agential ethics encumber clients' rights to representation; the right to be heard is the most important component of due process, but most citizens lack the forensic skill to cause a court to have heard what they say. Permission to be heard is a popular right only when it includes representation by counsel, and additional rules applying to attorneys attenuate the right to appear by counsel. Ethical rules punishing attorneys' litigation misconduct by career loss further empower the judges over litigants by controlling their attorneys and dampening attorney aggressiveness. These rules include the harsh penalties for disobedience to court orders, rules that make a lawyer tremble at testing an injunction's validity.

Contra-agential ethics fare no better from the lawyer's standpoint; they defame lawyers as unethical for infractions that don't involve ethical lapses. An attorney's ethical duties follow from the requirements of the attorney role, a role that must be one of strict agency to respect the represented party's right to be heard; strict-agency's requirements dictate the ethical imperatives: loyalty to the agent's principal and truthfulness in matters of the agency. A lawyer's ethical character is reflected in his obedience to these ethical mandates, not to court orders. Contra-agential ethics taint lawyers with allegations of moral turpitude when the offense consists of acts that are ethically neutral, such as violating administrative rules, or even ethically exemplary, such as defying judicial authority at personal risk to protect a client.