Sean Quinn, Ph.D., J.D.*
The following words come from Leroy
Haeger  v. Goodyear Tire and Rubber
CV-05-02046-PHX-ROS (D.Ariz). November 8, 2012).  Indeed, they are the opening paragraph. 

          “Litigation is not a
game. It is the time-honored method of seeking the truth, finding the truth,
and doing justice. When a corporation and its counsel refuse to produce directly relevant information an opposing party is entitled to review, they
have abandoned these basic principles in favor of their own interests.
[Citation: Nix v. Whiteside, 475 U.S.
157, 166 (1986) (lawyer’s “duty is limited to legitimate, lawful conduct
compatible with the very nature of a trial as a search for truth”).] The little
voice in every attorney’s conscience that murmurs turn over all material information was ignored [in this case]. [¶]
Based upon a review of the entire record, the Court concludes that there is
clear and convincing evidence that sanctions are required to be imposed. . . .”

Hardly anyone would deny the grand and great truth found in this
statement and the one it cites. What must be noticed is that they are universal
truths; they apply to all lawyers under all circumstances. In addition, they
are moral principles at the heart of lawyering and at the heart of all
civilized legal systems. Notice the central use of the word “conscience;” that word is conceptually connected to the idea of fundamental morality.

What may not be noticed immediately is that the principles of legal ethics involve a conflict among
various concepts often thought to be found in American legal ethics, not to
mention any system treasuring complete commitment to competition and
victory.  Here is the conflict. On the
one hand, lawyers are requires to peruse the interests of their clients
“zealously” and to be “loyal” to their clients and the interests of their
clients.  On the other hand, there are
the principles found in the passage just quoted. 

(The truth is that the
principles expressed in the quote are also found in the accepted rules of legal
ethics, i.e., that lawyers have duties to justice, to the legal system and
processes as nobly conceived, and to tribunals. 
It’s just that these
formulations are not as clear as the formulation set forth by Roslyn O. Silver,
Chief United States District Judge in the quoted passage.)

It is worth noting that there is no conflict between the principles set forth in Haeger and the principles that derive from lawyer’s being fiduciaries of their clients.  A fiduciary must subordinate his/her interests to those of the client. It does not follow, however, the interests of the client of the fiduciary supersede those–or the requirements–of justice itself. 

Right from the start, a problem arises from the idea that litigation is
not a game. How many lawyers do not conceived of litigation as precisely
that.  Might not a lawyer respond to
Judge Silver by pointing out that in virtually all games, certainly those
played in America—for example—football, have rules, that breaking those rules
can result in penalties, and that there are umpires or referees present and
watching the game up close to enforce its rules? (And, of course, there is the NCAA, though it is not on the field.) 

Myself? I am inclined to the
judge’s view, especially since I think football is a poor analogy, then again,
I picked out that as the concrete example.

In closing, it is worth noticing that Judge Silver’s formulation of the
fundamental principle makes it a principle of civilized morality and not just
legal ethics.  Con-sequently, lawyers have
a duty to deliberate with their clients as to matters of acceptable civilized
morality and not just winning or about what is really in their self-interest.  Will lawyers welcome this

*Michael Sean Quinn, Ph.D., J.D.

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