Traditional Accounts: Contents and Criticism

• Author: Allan C. Hutchinson
• Pages: 19-35

19

CHAP TER 2

TR ADITIONAL

ACCOUNTS: CONTENTS

AND CRITICISM

Most lawyers eschew t he worth of legal theori zing; they prefer to think

of themselves as pract ical men and women of the world who are guid-

ed by the traditiona l imperatives of their professional craft. However,

in matters of legal ethics and professional responsibilit y, intellectual

theory holds great sway over legal practice. John Maynard Key nes’s

comments on economist s seem e specially apposite to contemp orary

lawyers: they are “slaves of some defunct economist” and “mad men

in authority, who hear voices in the air, are distilling their frenzy from

some academic scribbler of a few years back.”1 Accordingly, although

most practising law yers give little thought to the informing theory, the

practice of legal ethics and responsibility is based on def‌inite theoretic-

al models of what practisi ng lawyer s should do if they wish to act w ith

legal and professional respon sibility. These models are vital ly import-

ant in providing lawyers with a self-image that can g uide and justify

what they do and what they might become. While they tend to surface

only at times of ethical di ff‌iculty, the regnant models of lawyering work

to inform and inspire t he daily routines and regularized decision mak-

ing of professional practitioners.

In this chapter, I will sketch and criticize the traditional image and

defence of the ethical lawyer. The f‌irst section looks at the idea of law-

yers as hired ha nds and unpacks the various components of this model;

1 J.M. Keynes, The Ge neral Theory of Employment Inte rest and Money (London:

Macmill an, 1936) at 383.

LEGAL ETHICS AND PROFESSIONAL RESPONSIBILITY20

particular attention is given to the importance of the adversa ry system

and its implications for legal ethics and professional responsibility. In

the second section, I critici ze the traditional image because it is based

on a f‌lawed set of assumptions about the practice of law in contempor-

ary Canada. The third section examines the critical efforts to amelior-

ate the def‌iciencies of the tradition al model by suggesting an alternative

model of the lawyer as civic campaigner. Unfortunately, this improved

account of legal ethics and professional re sponsibility creates almost as

many problems as it resolves. Fin ally, the fourth section responds to

those progressive detractors who maintain that the image of an ethical

lawyer or a radical law yer is unavoidably perverse: l awyers are always

part of the problem, never a component in the solution. Throughout the

chapter, I seek to lay the foundations for my own more compelling and

workable account of lawyering.2

A. HIR ED HANDS

The traditional image of the eth ical lawyer ha s remained largely stat ic

and unchanged for many decades. Although it has received consider-

able maintenance work by way of renovation and redecoration, the

basic structure a nd foundations remain much the same. Caricatured as

“hired guns,” the more serious core of the traditional image is that of

lawyers as hired hands. Although it ha s come in for considerable criti-

cism, this image remains the operat ing model through which lawyer s

are trained, under which most law yers function, and which is formally

sanctioned by the provincial law societies i n their codes of conduct. As

would be expected in the common law, this t raditional model of pro-

fessional responsibility has it s roots in the practical routines of daily

lawyering rat her than in any well-founded theoretical appreci ation.

Nevertheless, to gra sp fully the appea l of such a model and the force of

the criticism aga inst it, it is important to understand the def‌inite and

partial a ssumptions, processes, and values about law, society, and ways

of thinking about them that support the traditional model.

2 This chapter owe s a great deal to the insight ful and important work of An-

thony Alf‌ieri . In a series of articles, he h as offered both a powerf ul critique of

tradition al lawyering and a con structive alternat ive for transformative l awyer-

ing. See A.V. Alf‌ieri, “Impoverished P ractices” (1993) 81 Geo. L.J. 2567, and A.V.

Alf‌ieri, “Rec onstructed Poverty Law P ractice: Learning L essons of Client Narra -

tive” (1991) 100 Yale L.J. 2107.