How should a lawyer “be”?

In their paper, “Legal Ethics and Moral Character”, Alice Woolley and W. Bradley Wendel propose a very interesting way of thinking about theoretical legal ethics. While most of the literature on legal ethics proposes particular ways that a lawyer should act, Woolley and Wendel suggest that instead, legal ethicists should think about the kind of person who is likely to act in the manner prescribed.

This raises the question of what makes up an ideal lawyer: “How a lawyer should ‘be’”. It involves an examination of the kind of moral character, and the kind of worldview, an ideal member of the profession should have.

Considering that the some members of the Law Society of Upper Canada have been suggesting that efforts at promoting civility among members of the bar might make litigators “too soft”, it’s a question of more than just academic interest.

If we picture a lawyer involved in a difficult negotiation, one can conceive of a lawyer who considers that his duty is to seek a “fair”result, as he perceives it. Then, irrespective of the client’s instructions, that lawyer is more likely to make decisions about the conduct of that negotiation that are geared less toward obtaining everything to which the client can legally obtain, and more toward seeing the matter to a result in line with that lawyer’s concept of what is “fair”.

On the other hand, one can also imagine a lawyer who sees himself more as his client’s champion, duty-bound to seek and obtain every concession available from the other party, so long as it is within the law.

It goes to the heart of how our profession conceives of itself.

The difficulty in all of this, is in how these ideas are to be put into practice. Who decides the appropriate psychological makeup for a prospective member of the bar? How do we go about ascertaining that psychological makeup in a candidate?

To some extent, membership in the profession is necessarily self-selecting. The profession was born, and at least in the Commonwealth countries and the United States, lives in an adversarial system. That system requires lawyers to advocate for, and protect, the rights of their clients. It assumes that competent counsel on one side will ensure that his client is not taken advantage of by the other.

Under our system, it is simply wrong to substitute our own concept of what would be “fair”, in the place of what is in the client’s best interests.

That said, there is no reason for a lawyer show disrespect to other lawyers, the courts, or other parties. In fact, that kind of conduct makes a lawyer less effective; not more. Presumably, clients hire lawyers because they can’t talk to each other directly. If the lawyers can’t talk to each other either, the clients are destined to spend more than necessary on legal fees, and they are less likely to find middle ground, because their dispute is more likely to be settled by a judge, rather than by themselves.

But members of the bar can’t be preselected for their particular personality traits. In any event, holding out hope that this might be possible some day discounts our own control over how we act. We are ultimately responsible for how we act, and we are not confined by our own predispositions.

The job necessarily entails balancing the interests of the client with our duties to the court, other lawyers and the profession itself.

Ultimately, we decide, by our everyday dealings with other lawyers, clients, parties and the courts, how we want our profession to be.