Samuel A. Alito, Jr.*
This conference examines the impact of lawyers and the legal system
"on government, freedom, responsibility and virtue." The
conference brochure presents as a benchmark the lawyer/statesman
who played such a prominent role in our countrys early years.
I want to return to that ideal in addressing the particular topic
that is before us in this segment of the conference the role
of the lawyer in the criminal justice system. At the risk of comparing
two things that are really not comparable, I would like to compare
that ideal with our current understanding of the role of the lawyer
in the criminal justice system.
The lawyer/statesman ideal has been aptly described by Dean Anthony
Kronman in his book The Lost Lawyer. Dean Kronman, in his presentation
this morning, explained this ideal much better than I can. To capsulize
his remarks, Dean Kronman believes that the lawyer/statesman, the
outstanding lawyer under that ideal, is a devoted citizen who cares
about the public good and is prepared to sacrifice his own well-being
The help that the lawyer/statesman provides to clients, Dean Kronman
argues, is not merely "instrumental." He is not simply
a servant of his client in that sense. One of his most important
responsibilities "is to offer advice about ends." Although
Dean Kronman does not suggest that it is possible to restore fully
the ideal of the lawyer/statesman, he does ask whether some of the
central values of that ideal can be recaptured.
How does this ideal compare with our current understanding of the
role of the lawyer in the criminal justice system? To examine that,
we must look at our current understanding of the nature of our system.
As numerous Supreme Court opinions and other pronouncements have
reminded us, our criminal justice system is an accusatorial or an
adversarial system and not an inquisitorial system. When an American
judge or lawyer draws this sharp distinction between the adversarial
and the inquisitorial, the clear message almost always is that the
adversarial is good, the inquisitorial is bad, and any effort to
depart from the purely adversarial view is something that must be
Our criminal justice system, however, is not purely adversarial.
Consider, for example, the typical criminal case with a prosecutor
and a defense attorney. At least one of these the prosecutor
is not supposed to behave like a single-minded opponent or
adversary of the defendant. As the Supreme Court has said in a very
famous passage that almost every prosecutor and criminal defense
attorney in the country has memorized, the prosecutor is not supposed
to be the representative of an ordinary party to a controversy.
The objective of the prosecution in a criminal case is "not
that the prosecution shall win the case but that justice shall be
done." This is hardly a description of a single-minded adversary
or opponent. When one of the two adversaries is not supposed to
act like a pure adversary, it is difficult to see how our system
can be aptly described as entirely adversarial.
I next want to turn to the role of the criminal defense attorney.
In doing so, it is not my purpose to pick on criminal defense attorneys
or to suggest that they are venal and prosecutors are virtuous.
Prosecutors know the Berger script. They know how they are supposed
to behave, and therefore, when they write or speak about the role
of the prosecutor, it is always a version of those requirements.
Defense attorneys, on the other hand, can be more colorful and
uninhibited in describing the role that they understand themselves
to be playing. Here is an example, and I don't think it's atypical.
"A Criminal Lawyer and His Field of Dreams" appeared in
the March 1997 issue of The Champion, a magazine published by the
National Association of Criminal Defense Attorneys. The author,
after referring to General Patton and General MacArthur, confesses
that he has often "wanted to walk into the courtroom wearing
a pair of matching ivory-handled revolvers, sunglasses and a leather
jacket. The criminal defense lawyer, like the two great generals,
sees himself as a gladiator and the courtroom as his arena of battle.
Like MacArthur and Patton, he is an ancient knight fighting dragons,
although his dragons are the bureaucracy and the constabulary."
This gladiatorial image is wildly inaccurate. It certainly does
not describe most of the criminal defense attorneys that I encountered
when I was a United States Attorney, nor does it describe my former
prosecutorial colleagues who have since entered private practice
and have become criminal defense attorneys. A major segment of the
white-collar criminal defense bar spends a great deal of time guiding
clients, witnesses and other people on the periphery of investigations,
through investigations with the objective, not of meeting the prosecution
in a battle to the death in the courtroom, but rather of getting
the person through the investigation without having a criminal charge
filed. They often are quite successful in this effort. Lawyers who
engage in this type of practice have many subtle and highly-developed
skills, but those skills cannot be described as gladiatorial.
Even when criminal charges are filed, most criminal cases are resolved,
not by a trial in the courtroom arena, but by a negotiated plea
agreement. This often features an agreement by the defendant to
cooperate with authorities. This too is hardly a gladiatorial resolution.
Instead of the image of the two gladiators who fight to the death
in the courtroom, a more apt image of what actually occurs is two
gladiators who march into the arena with their armor and their weapons
and then promptly throw down their armor, throw down their weapons,
and go off to a little table in the shade and negotiate a deal.
The image of the criminal defense attorney and the prosecutor as
gladiators is quite inaccurate when you consider the whole range
of activities in which they engage.
The description of our criminal justice system as purely adversarial,
although misleading, does reflect an ingrained way of thinking.
It affects the way we expect lawyers to behave, and in some instances,
the way that they do behave. In the courtroom, this manifests itself
in a number of ways. For one thing, the gladiatorial conception
of the role implies to many lawyers an obligation to do everything
on behalf of their client within the bounds of the law. That can
easily, and wrongly, be translated into an obligation of the lawyer
to tip-toe up to the boundaries of the law and perhaps even to take
the proverbial bad-man's approach of doing whatever they can get
away with. In court proceedings, this manifests itself in numerous
ethical problems, such as instances when either a prosecutor or
defense attorney calls a witness whom the lawyer has some reason
to believe will or has committed perjury.
In the short time remaining this afternoon, I do not want to talk
much about these events that occur in courtrooms, not because I
think they are unimportant, but because they have already been much
discussed. The best way, at least the most direct way, of preventing
such wrongdoings is by formulating and firmly enforcing sound rules
governing the behavior of lawyers in court proceedings.
I want, instead, to discuss what happens when this gladiatorial
image is extended outside the courtroom and outside the context
of court proceedings themselves. I will focus on two areas, which
I will loosely call legislation and speech on matters of public
Turning to legislation, let us assume that in a criminal case,
it is acceptable for a defense lawyer to devote a single-minded
interest to the defense of the client. Is it also acceptable for
that lawyer to take the same approach for the entire category of
clients he has had in the past and may represent in the future when
the lawyer steps outside the context of the court proceeding and
takes a position on the rules that should govern the behavior of
the police or prosecutors or defense attorneys or any other aspect
of the criminal justice system?
There is a tendency for this to occur, for the gladiatorial concept
to be taken outside of the court proceedings. Let me give you two
examples. The first occurred to me in reading an article by a prominent
criminal defense attorney. After setting out the traditional gladiatorial
role of the defense attorneys, he encouraged defense lawyers to
do everything possible for their clients within the boundaries of
the law. Then, within the space of a couple of paragraphs, he moved
to discussing the legislative agenda and blasted the proposed victims
rights amendment. It is not my purpose to take a position on that
amendment. I have not examined that amendment closely and have not
studied possible arguments for or against it. It is my purpose,
however, to comment on what disturbed me about the article and that
was the rapid transition from doing anything that one can for the
client in the context of the criminal case to taking a position
against the amendment in the context of legislation.
A stronger example occurs in the formulation of ethics rules. These
rules are adopted by bar associations where practitioners have much
more power than they generally have in legislative bodies. Consider,
for example, the model rule that governs the disclosure of confidential
information obtained from a client in the course of representation.
This is Rule 1.6, and it says that a lawyer may not must
reveal such information to the extent necessary to prevent
a client from committing a criminal act that the lawyer believes
will "likely result in imminent death or serious bodily injury."
The lawyer is not required to make disclosure. Any old kind of death
is not sufficient, it has to be imminent death. It is not sufficient
that this might possibly occur, it must be likely to occur.
When the model rules were formulated, a hotly debated subject was
whether mandatory disclosure should be required, and the proponents
of mandatory disclosure lost. Thus, if I were a criminal defense
attorney and a client told me that he was planning to kill someone
or to bomb an office building or airliner, I would not be under
an ethical obligation to disclose that information, although I would
be permitted to do so. This seems to me to be an extension of the
gladiatorial role far beyond reasonable bounds.
This gladiatorial model has been similarly and unreasonably extended
into speech on matters of public concern. The way this has happened
was illustrated very nicely by Professor Richard Uviller in his
book Virtual Justice. Professor Uviller created the imaginary case
of a lawyer, Sylvia Meade, and a politician, Senator Hardy, who
was under indictment for corruption. Meade had some success defending
clients, but she wanted to move on to a higher level of representation
with more visibility. Hardy had a rather unsavory past concerning
his relations with women, and he wanted to hire Meade because he
thought she would have public credibility. He wanted to hire Meade
to defend him not just in the courtroom, but also in the media.
Meade asked Hardy rather perfunctorily about the truth of the charges
against him. Hardy stated that the truth was that he needed a vigorous
defense outside the courtroom as well as in it. "I am entitled
to no less, right, and you have agreed to give it to me." Meade
then stepped out in front of the cameras in front of the courthouse,
and vouched for Hardy's innocence. Although she knew very little
about the case, she denounced the prosecution as politically motivated.
To spin this story out even further, if the case gets significant
media attention, there could be other appearances. Meade might be
invited to appear on talk shows, particularly if she can connect
this prosecution to a broader social theme. If she wins the case,
she might even get her own talk show. Throughout, she continues
to take strong public positions for her client.
This hypothetical case is not unrealistic. Consider the comments
by a very well-respected lawyer who wrote an article entitled "Why
Lawyers Lie". The author begins by setting out the traditional
gladiatorial role of the criminal practitioner. The lawyer, he writes,
is not quite given James Bond's license to kill, but it is proper
and, at times, even necessary for a criminal practitioner to lie
to the public and to the media on behalf of a client. The public
statements of prosecutors and defense counsel, he says, must be
viewed with the greatest skepticism.
The author cites two well-known cases as examples. He writes:
Robert Shapiro, who asserted in one of his unending series of interviews
that [O.J.] Simpson was innocent, was not the Shapiro one might
have met before he was retained by Simpson. He is now Simpson's
Shapiro, Simpson's representative, sometimes Simpson's flak. Whatever
he says is said for Simpson's benefit, not because it is true.
So with Alan M. Derschowitz when he was representing Mike Tyson.
The frequent public assertions by Dershowitz of Tyson's innocence
after he began to represent him were not those of the Bill of Rights-protecting
Harvard Law School professor Alan Derschowitz. The Tyson-defending
Derschowitz was, in the end, little more than a better-spoken Tyson,
Tyson in Harvard garb.
These are the author's words, and I do not suggest that this is
my view of Mr. Shapiros or Professor Dershowitzs remarks.
If, however, that is in fact what a criminal defense attorney or
prosecutor does in public speech, I think it is something that the
profession should strongly oppose. If the profession accepts the
proposition that it is permissible to lie in public on behalf of
a client for media purposes, then the criminal bar will forfeit
any vestige of public respect. This damage, I fear, will not be
confined just to criminal practitioners. As some have noted, including
Professor Mary Ann Glendon in her book A Nation Under Lawyers, the
attitude of criminal practitioners, prosecutors and defense attorneys,
has had an important influence on the attitude of aggressive civil
litigators. The latter, in turn, influence the stance of the entire
In conclusion, I think that the profession should talk about the
nature of our criminal justice system and the role of lawyers in
more accurate, more measured and more nuance terms.
The gladiatorial concept, should be confined to the precincts of
the courthouse and court proceedings where they are subject to control
*Samuel A. Alito, Jr. is a Judge on the United States Court of
Appeals for the Third Circuit. From 1987 to 1991 Judge Alito served
as United States Attorney for the District of New Jersey.
The above remarks are extended excerpts from a presentation made
by Judge Alito at the 1997 National Lawyers Convention, entitled
"The Crisis in the Legal Profession."