Lawyer Ethics In Popular Culture

Michael Asimow, University of California, Los Angeles, School of Law, and Richard Weisberg, Yeshiva University, Cardozo School of Law, have published "When the Lawyer Knows the Client is Guilty: Client Confessions in Legal Ethics, Popular Culture, and Literature," forthcoming in the Southern University Interdisciplinary Law Journal. Here is the abstract.

This article concerns a classic puzzle in legal ethics: what should a criminal defense lawyer do when the lawyer is certain that the client is factually guilty (usually because the client confessed to the lawyer), but the client insists on an all-out defense? Legal ethicists have struggled with this problem since the Courvoisier case in 1840, but it remains unresolved. This article draws a distinction between strong and weak adversarialism and explains how these two normative positions guide a lawyer's tactical decisionmaking. The article suggests that lawyers should have discretion to choose between the strong and weak positions, depending on context and their personal conscience. Both popular culture and great literature provide interesting perspectives on the strong vs. weak adversarialism dilemma. According to numerous films, television shows and novels, the right answer to the lawyer's dilemma is no adversarialism at all. The good lawyer should betray evil clients to insure that the truth is discovered. Pop culture's no-adversarialism model is a universe few lawyers would care to inhabit but which reflects popular views on the relationship of lawyering to truth. Literature casts doubt on whether a lawyer can know with certainty whether a client is telling the truth. It presents numerous models of successful strong adversarialists and unsuccessful weak adversarialists. Few literary lawyers manage to be both skilled advocates and decent human beings.

Download the article from SSRN here.

Michael Asimow on the Image of the Adversarial System in Popular Culture

Michael Asimow, UCLA School of Law, has published "Popular Culture and the Adversarial System" in volume 2007 of the Loyola of Los Angeles Law Review. Here is the abstract.

This article addresses a puzzle: lawyers are the most distrusted and despised of all American professions, whereas the public has a much higher opinion of judges. Yet Americans believe strongly in the adversary system in which all the important procedural decisions during civil or criminal trials are made by lawyers. Even though people crave a justice system that discovers what really happened, they accept one that delivers only trial truth and procedural justice, not factual truth or substantive justice. This article explores various reasons why people might favor the adversary system despite their distrust of lawyers and their craving for truth, such as a belief in personal autonomy, a distrust of government officials, and a lack of knowledge about alternatives. However, the article suggests another possible reason: the influence of popular cultural portrayals of the trial process. Dating back to the days of history's greatest teacher of trial tactics - Perry Mason - media consumers have been taught that the adversary system delivers the truth. We can count on a great lawyer's cross-examination to reveal the identity of the real killer. Even though we hate and distrust lawyers, we want a good one by our side when we're in trouble or an aggressive one prosecuting the crooks. Countless films and television shows since Perry Mason's day have conveyed the same basic message, although in more sophisticated form. According to “cultivation theory,” people often extract information and form opinions based on fictitious stories told by pop culture media. Perhaps we derive our bone-deep belief in the adversary system from Perry Mason and the other great lawyers we've watched over the years.

Download the entire paper from SSRN here.

Cross posted to the Seamless Web.