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This past year the makers of Miller Lite Beer produced a highly successful television commercial which showed terrified tax and divorce lawyers being roped and tied at a rodeo.(1) Shortly after that commercial began to air, Gian Luigi Ferri, a disgruntled former client, walked into the law offices of Pettit & Martin in San Francisco, California, shot and killed eight people, wounded six others, then took his own life.(2) Harvey Saferstein, the president of the California State Bar, called for a moratorium on lawyer bashing following this incident and was ridiculed and harassed with so many threatening phone calls and letters that he posted a guard outside his door.(3) The public perception is that divorce and bankruptcy attorneys earn their living from other people's misery.(4) Public opinion polls show that people distrust politicians, evangelists, condo salesmen and lawyers about equally.(5) There was a 500 percent increase in the cost of legal malpractice liability insurance between 1980 and 1987, and one in seventeen Missouri lawyers is sued each year.(6)
These highlights from various news sources only tend to illustrate that ours is an adversarial system and people tend to confuse their adversary with their adversary's lawyer.(7) Further, in any adversarial process there are winners and losers, meaning one side usually walks away from contact with the legal profession unhappy. While the public distrusts lawyers in general, each client wants an attorney who will advocate its position, not win a popularity contest. The popular sentiment seems to be "kill all the lawyers--except save one for me."(8) This public ambivalence toward the adversarial system is but a reflection of the ambivalence which exists within a legal profession dominated by the adversarial ethic. This ambivalence is evidenced by the procedural and ethical "rules" implemented to control excessive advocacy while encouraging zealous advocacy.
I want to examine the adversarial system from the perspective of the adversarial ethic, and then demonstrate in specific instances the inherent conflict created by these very ethical and procedural rules we have developed as a profession to limit the bounds of advocacy. Throughout the discussion below, I will point out how the Rules of Professional Conduct ("RPC") are often in conflict with each other, with the Bankruptcy Code ("Code"), with the Federal Rules of Civil...