On the Ethical Obligations of Lawyers: Are We Snakes? Are We Supposed to Be?
Posted by David Yosifon on March 17, 2007
Legal theorists can exploit and deepen the insights of situationism by deploying the situationist vantage in the analysis of specific legal institutions. A promising approach is to expose latent dispositionism in present thinking about a given institution and to consider the effects of restraining any dispositionist prejudice.
Consider the case of lawyers. Our profession often finds itself the recipient of some rather negative dispositionalizing; we are commonly thought to be snakes or sharks – creatures feared for their cunning and viciousness. More generally, we are viewed as conniving, lying, cheating you-know-what’s who are obsessed with money.
Given those stereotypes, lawyer jokes are welcome on any occasion, before any crowd. My personal favorite:
An attorney was sitting in his office late one night, when Satan appeared before him. The Devil told the lawyer, “I have a proposition for you. You can win every case you try, for the rest of your life. Your clients will adore you, your colleagues will stand in awe of you, and you will make embarrassing sums of money. All I want in exchange is your soul, your wife’s soul, your children’s souls, and the souls of all your friends and law partners.” The lawyer thought about this for a moment, then asked, “So, what’s the catch?”
Of course, we in the profession take pride in knowing that we are also on the receiving end of a more positive belief about lawyers: lawyers are noble and honorable; we are bold and principled, knowledgeable and capable. People who tell us lawyer jokes at parties usually end up asking for our cards, patting us on the shoulder, and counting us among their friends.
In truth we are neither saints nor demons, as a class. Rather, we are, like everyone else, situational characters. The world sees lawyers acting in a particular manner and draws inferences from that conduct about the dispositions of lawyers. This is just one example of the broad human tendency to draw inferences about disposition from behavior, and to presume that the dispositions are driving the behavior, with little perception or conceptualization of the broad situational influences shaping the behavior.
Social science can help to isolate those influences when they are hidden from our common-sense thinking and intuition. But some of those influences are hiding in plain site – we are aware of them, we just don’t think about them. Such is the situation with lawyers – sure we are sharp and vexatious of our enemies, fastidious and sharp for our friends: the law requires us to be! We are made by the law to play a part in a broader system, elements of which are by design highly contentious. We are fiduciaries doing business in an adversarial framework. Most everyday conversations and behavior, both in work and in family, take place against a backdrop of co-operative communicative norms. Much legal discourse, in sharp-contrast, is adversarial by design – law is the forum we turn to when co-operation is no longer working. In non-legal settings lawyers, being the situational characters that they are, act pretty much the way other folks do in those settings. The power of situation likely explains the apparent paradox in most people thinking ill of lawyers generally, but not the lawyers they know in their personal lives.
Yet what kind of situational characters are lawyers meant to be? Is it really the snake? A review of the legal and ethical obligations confronting lawyers makes it clear that, as a positive matter, the lawyer is obligated not only to her client, but also, in specific and general ways, to co-operative imperatives within our judicial system. A lawyer is not permitted, for example, to allow a client to lie on the stand, in depositions, or in interrogatories. Lawyers must turn over “discovery” to their clients’ adversaries, information which may prove harmful to the clients. In fact, co-operative injunctions pervade the legal process, and set the contours of adversarial aspects of the system at every turn. We are not just snakes and sharks, but ants and bees too, hustling on behalf of the hill and hive that is our justice system.
Yet are we living up to it? It may be that recurring complaints of improper lawyerly conduct – disregard of the rules of ethics in favor of overzealous advocacy – can be explained by the same dispositionist diagnosis. For the lawyer, the presence and interests of the client are highly salient, whereas the other imperatives of the system are very difficult to see. The lawyer’s relationship with the human person that is the client, or the client’s representatives in the entity context, undoubtedly engenders powerful affective responses favoring in-groups and despising out-groups.
The abstract co-operative requirements of the law, while they may be central to the right operation of the legal system, are unlikely to activate such schemas. Indeed, as lawyers we may tend to lose sense of the fact that we are, by trade, situational characters made to play a part in the machinery of law – we dispositionalize ourselves and come to believe that we are in it with and for the client. Such affective responses are not engendered by the broader demands of the system – after all, many aspects of the legal system, especially the co-operative injunctions, are designed specifically to restrain common sense thinking and affective impulses – indeed, restraint of the very impulse to self-help, put most broadly, but also within specific mechanics of the law, such as in the rules of evidence.
This is not to say that most lawyers do not “understand” the duties they owe to the co-operative elements of the legal system. It is merely to dwell on the situational influences which may make difficult the realization of that understanding in the lived experience of law practice. Indeed, it may suggest a reason to be concerned about how easy we can expect it to be for lawyers to adhere to the ethical demands of our system as it is presently designed. I will develop this analysis further in future postings.
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