Stephen McG Bundy and Einer Richard Elhauge,
Do Lawyers Improve the Adversary System--A General Theory of Litigation Advice and Its Regulation, 79
Cal. L. Rev.
Available at: http://scholarship.law.berkeley.edu/facpubs/1541
This Article presents a rational actor account of how litigation advice influences the information that reaches the tribunal in an adversary system. The authors conclude that although advice has some disturbing or ambiguous informational effects, on balance providing advice to one or both parties will generally improve the capacity of tribunals to determine who should be sanctioned and who should not. They also identify conditions under which advice is likely to be socially undesirable. The authors apply their account to analyze a range of policy issues, including whether to award fees to private attorneys general, whether to guarantee representation to criminal defendants under the sixth amendment, and whether the due process clause should require access to counsel for claimants in government benefits cases. They also analyze various doctrines of attorney-client confidentiality and rules restricting access to advice about responding to investigations or other questioning.