Introduction: Of Crisis and Codes

AuthorAllan C. Hutchinson
The lawyer is alwa ys in a hurry. He has be come keen and shrewd …
but his soul is smal l and righteous.
A number of years ago, I taught a class on legal eth ics. In typical fash-
ion, I began by throwing out a cr ude hypothetical. It went something
along the lines that, as a young lawyer, your client tells you that he has
discovered he is HIV-positive from a botched injection by hi s doctor.
He requests you to negotiate a settlement on his behalf. Negotiations
proceed quickly and the doctor’s lawyers seem willing to settle for a
sizeable amount. Shortly before you f‌inali ze the settlement, the client
informs you that he has had a second medical examination, which has
revealed conclu sively that he is not HIV-positive. He insist s, however,
that he still wants you to continue the negotiations on the basi s that he
is HIV-posit ive and to take the s ettlement on offer. What should you do?
To my considerable surprise, a signif‌icant number of students ins isted
that they should follow their client’s inst ructions: it was for the doctor’s
lawyers to ascertain whether your client is telling t he truth. Moreover,
in doing so, most contended they would not be acting unethically, but
would actually be fulf‌illing the special moral obligations of lawyers
to put their clients ahead of all other s. After some discussion, most
students were reassured that such a course of action would be not only
unethical but tantamount to fraud. Still, a few persisted in protesting
the moral innocence of the law yer, whatever the ethical impropriety of
the client’s instruct ions.
This incident galvani zed me in my belief that t he need to take legal
ethics and professional re sponsibility seriously was never more urgent.
Sadly, the intervening years have done little to a ssuage that concern.
The fault in the situation was less t hat of the students and more that
of the legal community, including lawyers, professors, judges, and ad-
ministrators. However w rong-headed the students were, their resp onse
ref‌lected a common misunderstanding that law yers are simply glib
actors who do the bidding of their directorial clients. Indeed, ma ny
young lawyers see little difference between their moral role and re-
sponsibility as l awyers and those of actors: they simply do the best
performance that they c an within the constraints and requirements
of a particular character or script. Whether cast as Hannibal Lector or
Mother Teresa, many hold that the dramat ic task is to offer a persuasive
and convincing rendition of the roles w ith little or no scruple as to the
moral worth of the characters played or their actions; the quality of the
performance is all about style, not substance. Similarly, the lawyer’s
role is not considered to be so different. While there is some choice
among clients, there is no lesser sense of professional achievement in
representing one party or another. As long as the client’s demands and
expectations are lega l, lawyers need or should have few qualm s about
the general moral worth of the cause or t ransaction; merit and value are
connected to the lawyer’s perform ance in complying with the client’s
wishes to the be st of their ability. This thespian-like depiction of the
lawyers’ role and responsibility is far from reassuring.
Accordingly, this book is a prelimina ry attempt to challenge many
of the misunderstandings that per vade discussions of legal ethics and
to make good on present shortcomings in professional responsibilit y.
It is intended to be both a critic al primer on the current approaches to
professional responsibility and also a c all to ethical arms. The drivi ng
ambition is to redeem the ethica l standards t hat the legal profession
presently seems to honour more in the breach than the observa nce.
Heeding Lord Bolingbroke’s caution that “the profession of law, in its
nature the noblest and most benef‌icial to mankind, is i n its abuse an
abasement of the most sordid and pern icious kind,” I want to advise
young (and old) lawyers against the temptation to professional abase-
ment in the belief that it is done for the most noble and benef‌icial of
professional causes. Legal ethics and professional responsibil ity can be
most benef‌icial to mank ind when lawyers take them seriously as iss ues
of personal as well as profes sional good character.

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