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91 Mich. L. Rev. 1703 (1992-1993)
The Ethics of Criminal Defense

handle is hein.journals/mlr91 and id is 1727 raw text is: ESSAYS THE ETHICS OF CRIMINAL DEFENSE William H. Simon* A large literature has emerged in recent years challenging the stan- dard conception of adversary advocacy that justifies the lawyer in do- ing anything arguably legal to advance the client's ends. This literature has proposed variations on an ethic that would increase the lawyer's responsibilities to third parties, the public, and substantive ideals of legal merit and justice. With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there.' This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not warrant a more adversarial ethic in criminal defense. However, I also suggest that another, less often asserted argument might provide a more plausible ethical basis for aggressive criminal defense. A truly plausible case, however, would require substantial modifications of both the argument and the practices associated with that defense. INTRODUCTION At the outset, we should focus the inquiry. I take it for granted that lawyers can appropriately plead not guilty on behalf of clients they in fact believe to be guilty and defend these clients in a variety of ways. One reason, of course, is that, where the client denies guilt, it is more desirable to have disputed questions of guilt determined by the court at trial than by the lawyer unilaterally and in private. Thus, the lawyer can contribute more by assisting the trier of fact in making the determination than by making it herself. In addition, the law explic- * Professor of Law, Stanford University. A.B. 1969, Princeton; J.D. 1974, Harvard. - Ed. I am grateful for advice and help from many, including Joe Bankman, Dan Barton, Robert Post, Deborah Rhode, Steve Schiffrin, Bob Weisberg, Bob Gordon, Guyora Binder, and participants in seminars at the American, Cornell, Northeastern, and Stanford law schools. I am distinctively indebted to Barbara Babcock and Tom Nolan, two great defense lawyers who - in the best spirit of the adversary system - improved the article by arguing vigorously against its conclusions. 1. See, eg., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 58-66 (1988); Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 STAN. L. REV. 589, 605 (1985); Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTs. 1, 12 (1975). 1703