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Friday, February 1, 2008

Evidence And Ethics 5: Professor Zacharias' Are Evidence-Related Ethics Provisions "Law?"

University of San Diego School of Law Professor Fred Zacharias' contribution to the Ethics and Evidence Symposium is his article, Are Evidence-Related Ethics Provisions "Law"?  The launching point for the article is the fact that the Restatement (Third) of the Law Governing Lawyers (2000) refers to state legal ethics codes as part of the construct of lawyer regulation but fails to define to what extent these ethics codes are "law."  Zacharias answers this question by looking at three categories of legal ethics rules:

     -(1) those which are entirely consistent with evidentiary law;

     -(2) those which conflict with evidentiary law but which courts for the most part ignore; and

     -(3) those which state evidentiary principles that courts do not apply directly, but with which courts seem to agree.

Legal ethics rules falling in categories one and three are a form of "law" to the extent that courts apply them, whether directly or indirectly, explicitly or implicitly.  The questionable category is thus the second category, and as Zacharias notes, "If commentators are correct that key divergences between the professional codes' evidence-related provisions (e.g., confidentiality) and parallel evidence law (e.g., privilege) are directly attributable to a difference in vision -- in part a different vision of the purpose of law -- that undermines the Restatement's premise that the professional codes are law."  Zacharias, however, concludes that the divergences are frequently based upon the judiciary and code-drafting bodies operating in different speheres.  Because ethics provisions are adopted in the abstract, covering a general range of cases, while evidence law focuses on specific cases, the pronouncements of the judiciary and code-drafting bodies "may not be designed as rules for the other institution."

Zacharias thus contends that the Restatement is correct in referring to the professional codes as a form of law, although it is a peculiar form "that courts only sometimes deem effective."  Accordingly, he proffers 3 possible responses to the status quo:

     (1) we could decide to recognize the professional codes as full law;

     (2) we could acknowledge explicitly the limits of professional regulations as law, but this risks the ethical codes losing their effect on lawyers; or

     (3) we could give up the pretense that the codes and other law operate on equivalent planes.

I know that I struggle in trying to mix in ethical rules into my evidence class, and I think that Zacharias' article is a terrific explanation which can be used in teaching the subject to students.  I asked Professor Zacharias whether he had anything he would like to add about his article, and he responded: 

"The only thing I might add is that this article focuses on one aspect of a much problem addressed in a forthcoming article to be submitted to law reviews in the Spring. In that article, entitled "Rationalizing Judicial Regulation of Lawyers," Bruce Green and I reconcile the different forms of judicial regulation of lawyers and attempt to come to grips with how those different forms of regulation might take better account of one another.

-CM

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