Introduction: Of Crisis and Codes

• Author: Allan C. Hutchinson
• Pages: 1-18

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CHAP TER 1

INTRODUCTION:

OF CR ISIS A ND CODES

The lawyer is alwa ys in a hurry. He has be come keen and shrewd …

but his soul is smal l and righteous.

—Plato

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.

LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITY2

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.