An Alternative Vision: A Contextual and Pragmatic Approach

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

CHAPTER 3

ANALTERNATIVE

VISION: ACONTEXTUAL

AND PRAGMATIC

APPROACH

The virtue of a man ought to be measured, not by his extraordinary

exertions, but by his e veryday conduct.

— Blaise Pasc al

While there have been some adjustments and tinkerings to the trad-

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

tions and demands of professional responsibility and legal ethics. In

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

sue the two underlying premises of the traditional model which are

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

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 the third section the nature of moral

responsibility generally; this overview involves a critical challenge to

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

tion introduces a pragmatic approach to legal ethics and professional

responsibility that emphasizes the special relation between personal

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 that by

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

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

fessional responsibility. On the contrary, I maintain that a pragmatic

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An Alternat ive Vision: A Contextual an d Pragmatic Approach37

perspective implies a committed ethical stance and demands a genuine

appreciation of what taking responsibility involves.

A. AFRAGMENTED PROFESSION

An underlying premise of the traditional model of lawyering is that

there is a reasonably homogeneous and uniform legal profession. This

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

ive ideal. On closer inspection, the traditional image and professional

codes are underpinned with the view of the white male lawyer as an

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

is driven as much by civic pride as by commercial ambition; 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 off‌ices and activities throughout society is a myth.

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

tion rather than the rule. 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 remains 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 certain that Canada’s legal profession

at the end of the twentieth century comprises many types of lawyers

and many kinds of legal practices. Although the Canadian literature is

not as extensive or as thorough as that of the United Kingdom and the

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

one legal profession is becoming fanciful. There is such a horizontally

and vertically differentiated set of people and organizations engaging

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

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

smaller partnerships, and single practitioners, not to mention govern-

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

action among them, and each operates in line with different cultures

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

only is mythical but has an insidious bearing on legal ethics. From its

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

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