An Alternative Vision: A Contextual and Pragmatic Approach

• Author: Allan C. Hutchinson
• Pages: 36-58

CHAP TER 3

AN ALTERNATIVE

VISION: A CONTEXTUAL

AND PRAGMATIC

APPROACH

The virtue of a man ought to b e measured, not by hi s extraordi nary

exertions, but by his e ver yday conduct.

— Blaise Pasc al

While there have been some adjustments a nd tinkerings to t he trad-

itional model, there has been little effort to rethink the basic obliga-

tions and demands of professional responsibil ity and legal ethics. In

this chapter, I offer such a reformulation. The f‌irst two sections pur-

sue the two underlying premis es of the traditional model which are

most pertinent and most problematic: one is the notion of a rea son-

ably homogeneous and uniform legal profession, and the other is the

idea of a role-differentiated and rule-based morality. After highlighting

these shortcomings, I explore in t he third section the nature of moral

responsibility generally; this over view involves a critic al challenge to

standard conceptions of ethics and their application. The fourth sec-

tion introduces a pragm atic approach to legal ethics and profes sional

responsibility t hat emphasizes t he special relation between per sonal

morality and professional expectations. In the f‌ifth and f‌inal section, I

develop the idea of ethical character and judgment as it applies to the

practice of law. Throughout the chapter, I try to make it clear th at by

pragmatic I most certainly do not mean t hat lawyers should take an ex-

pedient or less-tha n-serious approach to issues of legal ethics and pro-

fessional responsibility. On the contrary, I maintain that a pragmat ic

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An Alternat ive Vision: A Contextual an d Pragmatic Approach 37

perspective implies a committed ethical st ance and demands a genuine

appreciation of what taking re sponsibility i nvolves.

A. A FRAGMENTED PROFESSION

An underlying premise of the traditional model of lawyering is that

there is a reasonably homogeneous and uni form legal profession. This

assumption cannot be justif‌ied as an empirical claim or as a prescript-

ive ideal. On closer insp ection, the traditional image and professional

codes are underpinned w ith the view of the white ma le lawyer as an

independent professional who deals w ith a range of legal tasks and who

is driven as much by civ ic pride as by commercial a mbition; lawyers

are a homogeneous group who engage in broadly similar work. This no-

tion of the fungible lawyer who in habits, with only slight variation and

adaptation, all the off‌ice s and activities throughout society is a myt h.

The reality is that, while such anachronism s exist, they are the excep-

tion rather than the r ule. Indeed, there is no longer one image of the

lawyer; rather, lawyers are a n increasingly heterogeneous and stratif‌ied

bunch whose backgrounds, ambitions, and standards are much less

uniform than was previously the case. However, while the legal profes-

sion is becoming more diversif‌ied, it rema ins a stratif‌ied profession in

which white male lawyers still exercise t he most control over the regu-

lation and self-image of the profession.

Whether there ever has been one type of lawyer or one kind of

legal practice is moot, but it is certa in that Canad a’s legal profession

at the end of the twentieth century compri ses many ty pes of lawyers

and many kinds of legal practices. Although the Can adian literature i s

not as extensive or as thorough as that of the United K ingdom and the

United States,1 there is ample evidence to support the view that talk of

one legal profession is becoming fancif ul. There is such a horizontally

and vertically d ifferent iated set of people and orga nizat ions engag ing

in different sorts of legal pr actice that generalizations are as un founded

as they are mislead ing. The profession is differentiated into megaf‌i rms,

smaller part nerships, and single practitioners, not to mention govern-

ment lawyers and the like; t here is little shared experience, little inter-

action among them, and each operates in line with different culture s

and norms. Indeed, the idea t hat there is a unif‌ied legal profession not

only is mythica l but has an insidious bearing on legal ethic s. From its

1 See R.L. Abel, American Lawyers (New York: Oxford University Pre ss, 1989),

and The English Legal Profession (Oxford: Blackwell, 1988).