An Alternative Vision: A Contextual and Pragmatic Approach

AuthorAllan C. Hutchinson
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
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.
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).

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