"what's Love Got to Do With It?" -"it's Not Like They're Your Friends for Christ's Sake": the Complicated Relationship Between Lawyer and Client

• Publication year: 2021

82 Nebraska L. Rev. 211. "What's Love Got To Do With It?" -"It's Not Like They're Your Friends for Christ's Sake": The Complicated Relationship Between Lawyer and Client

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Robert J. Condlin*

"What's Love Got To Do With It?"(fn1) -"It's Not Like They're Your Friends for Christ's Sake":(fn2) The Complicated Relationship Between Lawyer and Client

TABLE OF CONTENTS

I. Introduction ....................................................... 212
II. The Problem - The Hunt for the Elusive Relationship
Analogy (or Metaphor)............................................. 215
III. The Lawyer as Friend ............................................. 230
A. Charles Fried - Friend as Hired Gun ........................... 231
B. Friendship Historically ....................................... 250
C. Thomas Shaffer and Robert Cochran: Friend as
Moral Advisor ................................................. 271

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IV. Phyllis Goldfarb: A Narratological Perspective on the Lawyer as Friend
.................................................. 297
V. The Lawyer as Friendly Fiduciary and Agent
......................... 306

I. INTRODUCTION

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Should lawyers love their clients and try to be their friends?(fn3) Some legal commentators seem to think so,(fn4) and the idea has a long and venerable history.(fn5) Highly regarded scholars have defended the "lawyer-as-friend" analogy(fn6) enthusiastically in the past - Charles Fried is perhaps the most well-known example(fn7) - although usually they have relied on a more contractual understanding of friendship, and one more compatible with traditional concepts of adversary advocacy than the understanding currently in vogue. These past efforts were widely criticized by other legal commentators on a variety of grounds,(fn8) however, and after a period of debate on the topic, support

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for the friendship analogy appeared to wane.(fn9) That is until recently, when other writers, looking at the topic from a more religious perspective, found the analogy congenial once again, and having refined it, have re-asserted it as the proper model for the lawyer-client relationship. It is this rejuvenated love-and-friendship view that I want to examine in this article, to consider whether, after all these years, there is now good reason to believe that lawyers should be thought of as their clients' friends.(fn10)

I will say at the outset that I do not believe an adequate conception of lawyer-client relations can be grounded in an analogy to intimate personal relationships. Self-conscious attempts by lawyers to behave as friends can come across as insincere (as they often will be, although not malevolently so), condescending, and arrogant. They can also pro

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voke self-demeaning and childlike behavior in response, as clients dutifully try to play out their assigned role as designated beneficiaries of their lawyers' help. When both types of pretense are combined, law-yer-client conversations often take on the qualities of an elaborately coded performance in which each side signals its genuine beliefs and wants in unnecessarily convoluted and confusing ways. Interacting in this fashion over a lifetime in law practice can cause lawyers to become cynical about client attitudes and less respectful of client ends. In fact, perhaps the biggest difficulty with the lawyer-as-friend view is that it can cause lawyers to become less friendly over the course of a career.

I will discuss these issues by examining two generations of scholarly argument for the lawyer-as-friend view, and a description of the approach in operation in an actual legal case. I take the former from the debate sparked by the Fried article mentioned above, and two recent books on interviewing and counseling by Thomas Shaffer and Robert Cochran,(fn11) and the latter from Phyllis Goldfarb's A Clinic Runs Through It,(fn12) a highly regarded article in the Clinical Law Review describing Goldfarb's representation of Christopher Burger, a death row inmate in the Georgia prison system.(fn13) Each of these discussions shows in detail what sorts of questions a lawyer-as-friend takes up, how he or she divides or shares representational tasks with clients differently from lawyers who use more traditional approaches to legal representation, and how the personal psychological experience of representing a client as a friend compares with the experience of representing a client as a fiduciary and agent. In the course of the discussion, I will compare the idea of legal friendship with views of friendship taken from western literature and philosophy generally, identify the comparative advantages and disadvantages of the legal friendship model, and conclude by defending a more traditional way of thinking about the relationship between lawyers and clients. Ultimately, I will argue that it is descriptively more accurate and normatively more attractive to think of a lawyer as a client fiduciary and agent (albeit of a friendly sort) than as a friend. This is because a fiduciary/agent view asks lawyers to treat clients with respect rather than love, and respect is a better basis than love on which to build a working relationship in the multi-cultural, secular, and communitarian world of lawyers and clients. The fiduciary/agent view also avoids cheapening, or watering down, the idea of love, something the friend

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ship conception has a difficult time avoiding when applied to all types of law practice settings, and all types of clients.

II. THE PROBLEM - THE HUNT FOR THE ELUSIVE RELATIONSHIP ANALOGY (OR METAPHOR)

In the dedication to a new book on interviewing and counseling, Robert Cochran thanks his "mentors, Tom Shaffer and John Acuff, who taught me to love my clients."(fn14) This seems an odd thing to say. It is not odd that Tom Shaffer and John Acuff could be mentors. Professor Shaffer is a prolific and insightful commentator on lawyer-cli-ent relations (and on a wide variety of other subjects as well), and for many years has been an intellectual and characterological model for generations of lawyers, law students, and law professors. While I do not know Mr. Acuff, I am willing to believe that the same is true of him. What is odd is that Professor Cochran learned to love his clients, or more specifically, that he felt compelled to try. Clients frequently are not lovable in any sense of the term, and when they are it is usually because of qualities that have little if anything to do with their status as clients. They are not family, where the decision to love is more or less inherited, and they usually are not social friends where the decision to love is chosen. Moreover, they often ask lawyers to do selfish and mean-spirited things to other people that lawyers would not do if it were up to them personally, and mean-spiritedness is not lovable. Clients can be rude and demanding in the way they insist that lawyers do their bidding, and can be oblivious to, or unappreciative of, lawyer efforts to help them realize their goals in more socially acceptable ways, even when lawyers do nothing to provoke these attitudes. As partners in social relationships they are frequently imposed rather than selected, and tied to lawyers by money as often as shared values, common beliefs, or joint purposes. Lovable clients are often the proverbial oxymoron then, the anomaly rather than the norm, the result of fortuitous circumstance more than conscious action, and yet Professor Cochran seems to see it just the other way. How can that be?

It turns out, unsurprisingly, that this is just a new version of an old question. Conceptions of lawyer-client relations have always been contested, complicated, and controversial. David Hoffman and George Sharswood, the earliest American commentators on lawyer role, differed over the relative strengths of the obligation to pursue client objectives versus the duty to protect societal and third party interests,

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for example, usually under the rubric of asking whether a lawyer was principally an advocate for the client or an officer of the court.(fn15) Louis Brandeis argued that lawyers should act as their clients' "con-science,"(fn16) as did Elihu Root, who declared that "about half of the practice of a decent lawyer is telling would be clients that they are damned fools and should stop,"(fn17) while at about the same time

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Charles Curtis defended a view of lawyer-client relations based on impersonal fealty to disembodied craft.(fn18) The American Bar Association resolved the tension between duty to clients and duty to society one way in its Canons of Professional Ethics,(fn19) another in its Code of Professional Responsibility,(fn20) and yet a third in its Model Rules of Professional Conduct,(fn21) so that if one looked to the organized bar for

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guidance on this issue, what one learned depended upon when one tuned in. State ethics codes differ yet again from the ABA and from one another on the question of lawyer loyalties,(fn22) adding to the confusion. Sometimes, it almost seems as if there is a greater likelihood of developing a unified field theory of the universe than a consensus theory of lawyer-client relations.(fn23)

The obstacles to a consensus conception of lawyer role are not superficial or trivial, but instead are endemic to the nature of law - the relationship of a system of legal regulation to a social system generally, and the lawyer's role in operating within each. Law exists, in the main, to assign blame and punishment for deviant social behavior (criminal law), and to prevent opportunistic advantage taking of the ignorant, weak, and gullible by the unscrupulous, ruthless, and greedy (civil law). Everyone else is left to fend for themselves through private arrangements (many of which law enforces). In addition, legal rules, both statutory and common law, are usually expressed in general terms not tied to...