Teaching the Theory of the Lawyer-Client Relation: What to Do with the Lack of Consensus?
Posted: 3 Jul 2001
The traditional understanding of professionalism holds that the vulnerability and weakness of the client (patient, customer) relative to the professional requires a special practitioner's ethic--an ethic whose purpose is to create self-restraint on the part of the professional in order to protect the client. Many social scientists and legal academics are skeptical concerning this ethic, either in regard to its descriptive accuracy or its prescriptive justification. In addition, the relatively few academic lawyers interested in professional ethics tend to be concerned not so much with a client vulnerable to the lawyer as with a lawyer at risk of assisting a powerful client in wrongful conduct. (For example, a large corporation with a profit ethic is often their imagined client, rather than the vulnerable individual of the traditional professional model.) What the content of lawyers' professional ethics ought to be has no single answer, either in the profession or in the university. Neither those who are skeptical concerning the reality or validity of any special professional ethic at all, nor those who seriously study and seek the content of such an ethic, have been able to approach a consensus understanding.
This paper surveys several of the alternatives available in regard to teaching about professionalism and the lawyer-client relation in light of the lack of consensus. It also makes some tentative recommendations. One approach is the internal perspective: to see the issues from the perspective of the bar, practicing lawyers, and the students as incipient lawyers. Another is the external perspective: to examine the profession as a social phenomenon. A third possibility is to teach from both perspectives: to be honest about the profession and what we know about it while assuming that most students will have to find a place within it. One possible bridge between the two perspectives is the notion of choice. To a large extent, law students can choose what understanding of professionalism they will work under; they can choose what understanding of professional obligation will guide them in their ethical choices. As academics we have both the luxury and the burden of skepticism and distance. Our students can choose how much of that burden they want to carry or how much of that luxury they can afford.
Suggested Citation: Suggested Citation