Foreword to Symposium on "should the Family Be Represented as an Entity?": Reexamining the Family Values of Legal Ethics

• Publication year: 1998
• Citation: Vol. 22 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 1SUMMER 1998

SYMPOSIUM: "SHOULD THE FAMILY BE REPRESENTED AS AN ENTITY?"

Foreword to Symposium on "Should the Family Be Represented as an Entity?": Reexamining the Family Values of Legal Ethics

Russell G. Pearce(fn*)

This symposium on whether the family should be represented as an entity marks another milestone in the development of legal ethics as a field central to understanding the operation of law in our society, and not merely as a set of dry, largely irrelevant rules.(fn1) It does so by acknowledging that ethical rules of lawyers who represent families have very real consequences for those families. Building on earlier efforts to address this topic,(fn2) this symposium's authors confront what some commentators have described as the individualist impulse of the ethics codes(fn3) and whether this impulse is beneficial or harmful to families. In response to hypotheticals provided by the Seattle University Law Review,(fn4) the articles take very different approaches to analyzing whether the ethics codes are indeed elastic enough to encompass an organic conception of the family or whether new ethics rules are needed or appropriate.

I. Family Values and Legal Ethics

The perceived tension between legal ethics and family representation has resulted in attacks on the legal ethics codes for being antifamily and prompted proposals to change the ethics codes to allow lawyers better to represent families as an entity.(fn5)

In 1987, Professor Thomas Shaffer condemned the approach of the ethics codes to family representation.(fn6) He asserted that in family representation "the lawyer's employer is a family"(fn7) and that a family is an "organic community."(fn8) To the detriment of the family, the legal ethics codes embody a "sad, corrupting, and untruthful" ethic of "radical individualism,"(fn9) which forces lawyers to focus on the differences between individual family members and to neglect the commonalities which are the foundation of the family.(fn10) Shaffer suggested that lawyers representing families adopt a "paternalistic approach" based on "the virtues of good parents and the failures of bad parents."(fn11)

My 1994 article on Family Values and Legal Ethics(fn12) accepted Shaffer's framework, but proposed a somewhat different understanding of the problem and its solution. Recognizing the trend in law and in society to treat the family more as a collection of individuals than a community,(fn13) I noted that at present, legal ethics (similar to other areas of law) treats families as both a collection of individuals and a community.(fn14) On one hand, the conflicts rules do permit family members to consent to their joint representation by a single attorney.(fn15) On the other hand, even where they consent, the rules bar such representation if the lawyer objectively determines that the representation of any of them will be adversely affected by joint representation.(fn16)

This provision limits family representation in three ways. First, it forbids lawyers from representing families in some circumstances where they want such representation. Second, it describes families as collections of separable individuals by expressly asking lawyers only to identify differences between family members and not to promote commonalities.(fn17) Third, it gives lawyers the incentive to view family members as a collection of individuals. The lawyer who errs in failing to identify potential differences between family members faces sanctions or disqualification, which are not a threat to the lawyer who insists on representing only a separate individual.(fn18)

To respect both the group and individual aspects of families, I proposed Optional Family Representation.(fn19) Optional Family Representation builds on the suggestions of Patricia Batt(fn20) and Stephen Ellmann(fn21) that families are appropriate for representation as groups similar to the entity representation provided under Rule 1.13.(fn22) It permits lawyers to represent families who choose family representation despite the existence of nonwaivable conflicts and encourages lawyers to respect the harmonies of these families as well as their differences. To implement these changes, I suggested modifying existing rules to accommodate small groups, rather than to create a rule specifically for families.(fn23) Families could choose representation as a collection of individuals under the existing rules or could choose family representation under the following conditions: (1) they establish that a bona fide group identity exists and create procedures for communicating information and making decisions;(fn24) (2) the lawyer must inform members of the advantages and disadvantages of group representation at the initiation of representation and at all times when new advantages and disadvantages arise;(fn25) (3) they agree that confidentiality will not exist within the group;(fn26) and (4) for purposes of withdrawal from representation, "the lawyer's representation should be deemed to apply to group members in their individual capacity as well as their group affiliation."(fn27)

Teresa Collett and Geoffrey C. Hazard, Jr. have defended the established doctrine against these proposals for family representation. They argue that families are not legal entities, that family representation affords lawyers too much discretion, and that the established doctrine is necessary to protect individual family members.(fn28) I have responded to these critiques in a previous article.(fn29)

II. The Continuing Debate: Should the Family Be Represented as an Entity?

The editors of the Seattle University Law Review decided to expand the debate by creating this symposium on whether families should be represented as entities. To sharpen the focus of the submissions, the editors, with assistance from Teresa Collett and myself, developed two hypotheticals.(fn30) They asked the authors to address both the general topic and the hypotheticals. The resulting submissions take the debate on family representation to a new stage of refinement and complexity.

A. The Hypotheticals

The hypotheticals present situations where the lawyer would either have to deny representation or take a risk under established legal ethics doctrine. In both, married couples consult an attorney for estate planning and related advice under circumstances where significant potential differences abound. In both, one member of the couple seeks to delegate all decisions to the other. In the first hypothetical, a wealthy and well-educated wife seeks to delegate all decisions to her businessman husband because of her religious belief that wives should be submissive to husbands.(fn31) In the second, a construction supervisor who plans to become a house husband seeks to delegate all decisions to his physician wife.(fn32)

B. Reexamining the Family Values of Legal Ethics

The five articles in this symposium enhance the existing debate and extend it into new areas. At the risk of oversimplifying these unique and fascinating articles, I will try to describe briefly how they fit within the context of scholarly consideration of family representation and, in particular, how they compare with my proposal for Optional Family Representation. Three of the articles offer important contributions within the current framework. They accept and-in two instances-help explain the individualist basis of the legal ethics rules. The two remaining articles mark a departure-one larger than the other-from the existing scholarly debate in that they employ the existing ethics rules to family representation in a largely communitarian fashion.(fn33)

1. Modeling Established Doctrine

In The Power of Narrative: Listening to the Initial Client Interview,(fn34) Raven...