the Zealous

Alex Batesmith and Jake Stevens, in a compelling piece of scholarship, In the Absence of the Rule of Law: Everyday Lawyering, Dignity and Resistance in Myanmar’s ‘Disciplined Democracy’, Social & Legal Studies (2018), remind us how fortunate we are to be practicing law in a society that upholds the rule of law (citations omitted; emphasis added):

In the US, lawyers are ethically prohibited from contacting a party the lawyer knows is represented by counsel regarding a matter that is the subject of that representation. There’s a spirited and enlightening Redline query discussion underway about the practical application of this rule in the transactional context (one in which member jayparkhill commented: “This is super-interesting. It's always good to pull up the rules every once in a while rather that relying on what we think they say.”)

The rule is not without its detractors. Professor Leubsdorf insightfully questions why the consent of the represented party is insufficient to waive operation of the rule. The rule anoints the lawyer as the absolute arbiter of whether the client may contact the other side's lawyer, setting up an inherent conflict of interest:

In Lawyers as Upholders of Human Dignity, Georgetown Law Professor and legal ethics guru David Luban explains how advancing and maintaining human dignity is a fundamental cornerstone of our profession. Indeed, it is  “what makes the practice of law worthwhile.” 

Defining dignity as a “property of relationships between humans”, Prof. Luban articulates how the right to legal representation in criminal cases neatly encapsulates the notion of the law as a defender of human dignity. Prof. Luban starts with the premise that if human dignity is to mean anything at all, it must mean that every human has the right to have her story heard, particularly if the consequences at stake are moral condemnation, and loss of life or liberty, in the form of criminal sanction. “A procedural system that simply gagged a litigant and refused to even consider her version of the case would be, in effect, treating her story as if it did not exist, and treating her point of view as if it were literally beneath contempt.”