Traditional Accounts: Contents and Criticism

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

19

CHAPTER 2

TR ADITIONAL

ACCOUNTS: CONTENTS

AND CRITICISM

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

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

ed by the traditional imperatives of their professional craft. However,

in matters of legal ethics and professional responsibility, intellectual

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

comments on economists seem especially apposite to contemporary

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

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 practising lawyers should do if they wish to act with

legal and professional responsibility. These models are vitally import-

ant in providing lawyers with a self-image that can guide 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 the 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;

1J.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 adversary system

and its implications for legal ethics and professional responsibility. In

the second section, I criticize 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. Finally, the fourth section responds to

those progressive detractors who maintain that the image of an ethical

lawyer or a radical lawyer is unavoidably perverse: lawyers 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. HIRED HANDS

The traditional image of the ethical lawyer has remained largely static

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 has come in for considerable criti-

cism, this image remains the operating model through which lawyers

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 traditional model of pro-

fessional responsibility has its roots in the practical routines of daily

lawyering rather than in any well-founded theoretical appreciation.

Nevertheless, to grasp fully the appeal of such a model and the force of

the criticism against 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.

2This 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.