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34 Hofstra L. Rev. 641 (2005-2006)
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).