What is a Lawyer? A Reconstruction of the Lawyer as an Officer of the Court
Deborah M. Hussey Freeland
University of San Francisco - School of Law
April 26, 2012
St. Louis University Public Law Review, Forthcoming
Univ. of San Francisco Law Research Paper No. 2012-12
This paper engages with the central question in legal ethics concerning the lawyer's role, analyzing this fundamental question in terms of professional identity. Literature in this debate frames the lawyer either as a professional who exists entirely to serve her client (the "standard conception"), or as a professional whose primary duties are to the legal system. I reposit and examine the lawyer's professional identity as an officer of the court -- an identity marginalized by those who favor the standard conception -- noting that the phrase was coined to draw attention to a supplanting threat to legal professionalism. Providing a uniquely detailed examination of U.S. Supreme Court jurisprudence and of U.S. judicial system structure and function, this investigation yields strong and consistent evidence that the lawyer's identity as an officer of the court is the actual, legal standard conception of the lawyer, as well as the defining basis of her identity -- her sine qua non.
Viewing the formation of the lawyer's professional identity as an instance of the formation of an identity generally, in terms of its interpellation, socialization, and potential suspension or destruction, and examining the nature of that identity in terms of its performance, suggests that the lawyer's role as court officer gives rise to, encompasses and circumscribes her role as a client advocate: a court creates a lawyer to exercise her independent professional judgment in translating between the public and private realms, assisting in the formation of binding connections between the two in accordance with the rule of law. This observation reconciles a popular conception of the lawyer with her legal conception, usefully reframing an entrenched debate in legal ethics.
This novel theoretical approach further suggests that the lawyer's identity and professional actions can be understood as links in chains of softly dialectical synthetic acts that reify the private individual in publicly intelligible forms. Though this analysis may sound abstract, theorizing the lawyer's professional identity is a practical endeavor that considers how procedural justice and the rule of law are effected in substantial part through the lawyer's professional performance from day to day, and offers to lawyers and law students an understanding of the lawyer's roles and functions in the administration of justice that affirms their sense of duty to the courts and helps them to protect themselves from subversion.
Number of Pages in PDF File: 58
Keywords: legal ethics, professional identity, professional responsibility, legal profession, officer of the court, duties of the lawyer, public duties, U.S. Supreme Court, reconstructive analysis, structural analysis, functional analysis, legal system, standard conception, zeal, professional judgment
Date posted: April 30, 2012 ; Last revised: July 13, 2012
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