The Narrative(s) of Ethics: Two Stories in Three Contexts
33 Pages Posted: 23 Apr 2008 Last revised: 14 Jun 2010
Date Written: February 19, 2008
Lawyers struggle fiercely with loyalties. We are guided by obligations to our clients, to the legal system, to some concept of justice, to some notion of truth, and by our own moral and ethical compass. And on top of all this, we have to follow the profession's ethical rules. Much has been written about how these loyalties exist - or coexist - in uneasy competition, if not downright conflict; and there is no consensus among scholars or practitioners on how a lawyer can, let alone should, act in trying to balance these competing obligations.
Adding complexity to - or maybe in fact simplifying - this debate are the nuanced, complex, multi-faceted experiences our clients share with us. This article introduces some of these stories into the analysis a lawyer undertakes to determine his ethical obligations. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any particular case; and work with his client to determine how to resolve those conflicts.
The first part of the article introduces the stories of these clients as the lawyers came to know them and as the ethical dilemmas unfolded. This section sets the stage for further analysis both of the Rules of Professional Conduct and of the process lawyers undertake to understand and apply those rules. The second part of the paper shifts the focus to the Model Rules of Professional Conduct themselves and tells the stories again, this time in the context of those rules. This second telling reveals that the rules that make up the system of ethical regulation are interpreted to apply to generic, abstract clients in generic, abstract situations.
Drawing on critical lawyering and narrative theory, the third part of the paper proposes an alternative approach to interpreting and resolving ethical conflicts. The article suggests that the system of regulation should be interpreted to allow room for the attorney to consider and incorporate the client's narrative context. Such an approach places the client in the center of the inquiry and requires the lawyer and client to engage actively in dialogue and problem-solving. It allows the lawyer and client together to arrive at solutions that both respond to the particular client's needs, and attend to the moral and ethical concerns the lawyer and society might have. By using a critically reflective, intentional process of inquiry around ethical (and other) concerns, the lawyer must focus on this particular client in the context of his life and his legal/non-legal needs in this particular situation. Such an inquiry results in ethical decisions that meet the lawyers' competing obligations of loyalty to the client, to himself, and to the legal system.
Keywords: Ethics, Narrative, Storytelling, Clients, Lawyers
Suggested Citation: Suggested Citation