Duty to the client: The need for perspective and balance.

This article deals with the concept of the duty to the client and the need to maintain a viable balance with other duties. Unfortunately, this article can in no way adequately address this issue and all of its ramifications. It is hoped, however, that this article will serve as a catalyst for reflection and further exploration of this issue by lawyers and others. Before exploring this issue, however, an introduction is necessary to frame the concerns.

The Relevance of Job Dissatisfaction

Over the last few years, greater attention has been paid, to a growing dilemma within the legal profession: intense dissatisfaction with one's work. The ABA has explored this issue, academic writers are exploring it, lawyers are living it.

The symptoms accompanying the dissatisfaction will be addressed later in this article. For now, however, it is helpful to consider the nature of the dissatisfaction. Justice O'Connor, in an article in the Washington University Law Quarterly, quoted from an article in Newsweek where Sam Benson, an attorney, talked about why he quit the practice of law. He said the following:

"I was tired of the deceit I was tired of the chicanery. But mast of all, I was tired of the misery my job caused other people. ...Many attorneys believe that zealously representing their clients means pushing all rules of ethics and decency to the limit." [1]

Justice O'Connor also quoted from a National Law Journal study that reflected that "over 50 percent of the attorneys surveyed used the word 'obnoxious' to describe their colleagues." [2]

What are the sources of lawyers' frustration? What are the experiences' that lawyers are having in their profession that are causing such intense dissatisfaction? Perhaps it is what Alexis de Tocqueville saw years ago in the American culture and that is being manifested in the legal profession.

The Role of Individualism

When Tocqueville came to America, what he described as the strength of American culture was the same quality that he cautioned might ultimately produce its downfall. Having come from a culture that had been acclimated to living under the control of a monarchy, he was acutely aware of how individualistic the Americans were. He saw this as a quality that made them self-reliant and provided untold capacities to succeed.

On the other hand, Tocqueville also realized that this quality of individualism and self-reliance contained the latent capacity for disengagement from the values in the culture around the person possessing it to a point where that person, even at the costs of the communities around him or her, would maximize that person's individual self-interest. This self-maximization principle was recognized by Robert Bellah and a number of other scholars who authored a study of American Culture in the 1980s. That study articulated the concept of "utilitarian individualism" to describe the linkage of the quality of individualism with self-maximization. The effect of individualism on the culture was described as follows:

Individualism is a calm and considered feeling which disposes each citizen to isolate himself from the mass of his fellows and withdraw into the circle of family and friends; with this little society formed to his taste, he gladly leaves the greater society to look after itself. [3]

It seems that the concept of utilitarian individualism has now worked its way into the legal profession because, as many authors are lamenting, the legal profession has become a business; it has lost many of its attributes of a profession; its practitioners are goal oriented n terms of money and cultural success. In short, there has been a metamorphosis of the legal profession from the type of law practiced by Atticus Finch [4] to the type of law we see practiced around us today.

One of the manifestations of this self-interest has been articulately described as follows: "When pure self-interest is a lawyer's compass, whatever argument will achieve a certain result -- and fee -- is made, and sometimes wins." [5] Drawing again on Tocqueville, this self-maximizing perspective of the legal profession has been described as follows:

For [Toqueville], the professions were never intended to be a path to wealth. As lawyers sought to rise above the upper middle class (where their profession had placed them) by using their privileged position to charge ever more for their services, they progressively lost the capacity to view their profession as something other than the pursuit of economic interests. Cartel power was used for financial ends. The capacity to resist unjust client demands was necessarily weakened. Lawyers began to become hired guns. [6]

The self-maximizing orientation manifested by the desire to win and make

money, even at a cost to others, it is submitted, results in the isolation from relationships to others, to the culture, and to the law as a values-based institution. [7] For lawyers this also means a disengagement from the other duties that have always made up the range of duties that are part of a lawyer's profession: duties to the courts, to society, to the culture, and to the truth. Without the shared connection to the courts, our society, our culture, and truth, lawyers wander disconnected. [8]

Most certainly, we have our Codes of Professional Responsibility as potential militating influences, but they do not address the heart of the problem. Our Code's of Professional Responsibility are not proactive. They give us no guidance whatsoever about how to fight the tendency of utilitarian individualism. They give us no concept of how to strike an appropriate balance between that driving force and the other elements of our profession to which we owe duties such as the courts, our culture, our society.

The Codes of Professional Responsibility are reactive in the sense that they provide a floor below which one should not go. That floor, however, is usually defined in terms of what are conflicts and how to stay out of trouble. As they are now drafted, with possible exceptions, they virtually lack moral infusion and give us no guidance about how to be good lawyers and how to do our profession well. They are designed to help keep a lawyer out of trouble. As lawyers, deep down inside we know that we want more out of our profession than simply meeting minimal standards articulated in our Codes and when we do not find it, we experience the frustration of the lawyer referenced in Justice O'Connor's article.

An interesting phenomenon is that some lawyers who leave the legal profession go into the ministry. Perhaps those lawyers are leaving an environment that places their own personal values in conflict to an environment where there personal values are nurtured.

How does this, concept of self-maximization, i.e., utilitarian individualism, unless somehow restrained or channeled, manifest itself in the legal profession? That will be the topic of the remainder of this discussion.

Trying Cases in the Media

In order to begin to consider the ramifications of utilitarian individualism in the legal profession, it helps to give some context to the discussion by examining how lawyers are, with greater frequency; "trying" their cases in forums outside of the courtrooms. We are seeing an ever-increasing reliance on public explanations of cases by litigators. This ever-increasing need to "go public" with one's case presents serious potential problems. It is, however, simply one symptom of utilitarian individualism, which manifests itself in the desire to win at all costs even at the risk of potentially negative consequences.

Criminal lawyers will often be heard, when being interviewed by the media, to protest loudly that their clients are "innocent." They rarely state the issue properly and tell the world that their clients are "not guilty." We all know, of course, that there is a dramatic difference between innocence and a lack of guilt as the system provides for guilt and the underlying burdens of production and persuasion in a criminal trial.

The criminal lawyers, however, who protest loudly that their clients are innocent are sending messages to the public that will later be scrutinized. How many times, after such unequivocal assertions have been made...