Professionalism and the Hidden Assault on the Adversarial Process

Document Type

Article

Publication Title

Ohio State Law Journal

Abstract

"Professionalism," according to the Report of the American Bar Association's Commission on Professionalism, "is an elastic concept the meaning and application of which are hard to pin down." The organized bar has equated the term with "the spirit of public service," "training in Professional Responsibility," and "promoting Justice, Fairness, and Morality," principles which, in the abstract, are difficult to oppose. The report, of course, fails to mention that the elastic concept has been stretched by the organized bar to include measures which strike at the very heart of the adversarial process. The adversarial mode of adjudication mandated by the Constitution in our criminal proceedings has come under fire from other directions, as well. The Rehnquist Court continues to produce opinions that tilt the delicate balance of power between the prosecution and defense in favor of the state, and the tendency of prosecutors and judges to tolerate the perjury of police and other government witnesses exacerbates this imbalance. In addition, the plea bargaining process has long ago replaced adversarial trials in the vast majority of criminal cases. These inroads into the adversarial process, however, differ in a key respect from the current assault on the process mounted in the name of professionalism: only the latter is shielded from view and from open debate, thus curtailing the chances of restoring the integrity of our adversarial proceedings. Part II of this Article outlines the constitutional requirement of adversarial criminal adjudication and exposes the dark underside of the modem concept of professionalism: the attempted social control of women and minorities presently entering the bar in increasing numbers, as well as the subversion of the adversarial process and of the criminal defense lawyer's inherent role in the process. Part Ill identifies the principal causes of these adverse effects: the organized bar's efforts to subordinate counsel's allegiance to her client in favor of a duty to the system in order to help rehabilitate the poor public image of lawyers and thus preserve the self-regulatory nature of the profession; the further erosion of counsel's client-oriented role by imposing a duty to influence the client to pursue moral objectives; the bar's attempt to mold the professional conduct of the women and minorities new to the profession to reflect the collusive gentility of an earlier, more homogeneous era of the bar; the profession's distrust of criminal defense attorneys and the professionalism campaign's resultant attempt to expand the powers of the trial judge, thus eroding the dominant role of opposing counsel in conducting the adversarial search for truth; the failure of proponents of the current concept of professionalism to recognize the nature and value of adversarial adjudication in legal proceedings; and their failure to distinguish between the effects of their proposed reforms on our criminal and civil proceedings. Finally, to promote the integrity of our criminal trials in the face of modem professionalism's concealed assault on the adversarial process, Part IV summarizes the misconceptions and hidden agendas of which the organized bar's concept of professionalism must be cleansed.

First Page

855

Last Page

888

Publication Date

1994

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