The Ethics of Criminal Defense

A large literature has emerged in recent years challenging the standard conception of adversary advocacy that justifies the lawyer in doing anything arguably legal to advance the client’s ends. This literature has proposed variations on an ethic that would increase the lawyer’s responsibilities to third parties, the public, and substantive ideals of legal merit and justice.

With striking consistency, this literature exempts criminal defense from its critique and concedes that the standard adversary ethic may be viable there. This paper criticizes that concession. I argue that the reasons most commonly given to distinguish the criminal from the civil do not warrant a more adversarial ethic in criminal defense. However, I also suggest that another, less often asserted argument might provide a more plausible ethical basis for aggressive criminal defense. A truly plausible case, however, would require substantial modifications of both the argument and the practices associated with that defense.