Professional Responsibility

The Good Lawyer

Any description of the good lawyer, rooted in the reality of what lawyers do, is at the same time, an image of the ideal lawyer. Some ideals we take from the traditions of the profession. Other ideals we bring with us to the profession. What are these ideals and what effect do they have on us as a lawyer? Roscoe Pound found our traditional ideals "so generally and firmly established with the weight of authoritative tradition behind them as to be a form of law in the strictest analytical sense." [Roscoe Pound, The Ideal Element in Law 6 (1958)] If Pound is right that "men [and women] tend to do what they think they are doing," then our ideals are best known by the character we take on as we practice law. [On idealism, as a feature of jurisprudence, see, Alf Ross, On Law and Justice 64-70 (London: Stevens, 1958)(Margaret Dutton trans.)]

We sometimes talk about the good lawyer as someone who gets the job done, who is successful where others might have failed. As Xaviar de Ventos points out, "[a] car is good if it starts easily, brakes well, runs smoothly, hold the road properly, is comfortable. . . ." [X. de Ventos, Self-Defeated Man 13 (New York: Harper Colophon, 1975)]. The good lawyer takes readily to the tasks that lawyers do, performs them efficiently, and seems to do so with ease and style. Good, as in good car and good lawyer, simply means that they serve their purpose and live up to our expectations, that they are functional. Using "good" in this functional sense leads to the phantasy that we can say with precision and clarity what constitutes a good lawyer and that we don't need much in the way of ethics to chart the "good" in this functional sense.

Being a good lawyer may mean simply that one tries to comply with the body of ethical rules expressed in the profession's rules of conduct. It is not earth-shaking to suggest that being a good lawyer requires that we know, pay attention to, and follow ethical rules as a guide to our work with clients. Yet, following ethical rules contained in a code of conduct does not, in and of itself, make one a good lawyer in any broader sense of that term. While a lawyer can avoid professional sanctions by following the profession's ethical standards, compliance with ethical rules alone, do not, and can not make one a good lawyer. As suggested in the Rules of Professional Conduct, the profession's ethical rules (formally prescribed) "do not exhaust the moral and ethical considerations that should inform a lawyer, for no worthwhile human activity can be completely defined by legal rules."

Surely, we would bestow few accolades on a person solely on the basis of having avoided criminal indictment or never having been accused of civil wrongdoing in a court of law. We can abide by the law and "live side by side as strangers and in mutual aloofness. . . ." [William A. Luipen, Phenomenology of Natural Law 220 (Pittsburgh: Duquesne University Press, 1967)(Henry J. Koren trans)]. "To be a fully ethical human being there must be a concern and feeling for our fellow human beings. . . . Mere obedience to the law does not make one a good person." In fact, it can be argued that "living according to the law, has nothing to do with man's ethical life." [Luipen, at 221]. One can follow the law with meticulous care and lead a morally questionable life. Moreover, we generally do not acclaim as good those who do good solely for base motives, those whose good is attributed to the fact that he has managed to avoid being a criminal. Following the law and ethical rules can never be the sole criteria for being ethical, having character, and being a good lawyer.

A good lawyer if good is to have reach meaning beyond the functional meaning of good, must be related to some aspect of the person who is the lawyer. We would, most of us, agree that a career thief and a child pornographer cannot claim to be a good person. There is, in the act of repeated theft and in running a child porn business, a persistent destruction of values (social and personal) that precludes one who takes up these lines of endeavor from being a good person. And yes, the argument has its limits. There are better and worse thieves; some thieves will kill you to carry out their robbery, others draw the line at doing physical harm to a fellow human being. Robbery is one thing, assault with a deadly weapon another.

You don't have to worry about playing Robin Hood so long as you believe in the legal system and its ideals. Here is the way a student in a first year Introduction to Law course put the idea:

After reflecting on the matter I see no necessary conflicts between being a lawyer and being a Christian. Both, Christianity and the law have as their purpose the facilitation of social exchange, setting rules by which people can lead peaceful, fruitful lives. In fact, our laws are based on Christian ideals, the two are more complementary than conflicting. What I realized is that I have confidence in the law; it can and does work. I realize that there are many problems with jurisprudence in our society today, people must wait years for their case to be tried, unfair sentencing, and corruption. But these are administrative problems and don't affect my trust in the law. The legal system would not require a total dismantling to cure these ills.

It makes me feel much better about being in law school knowing the system I will be using is one that I can accept and have respect for. I feel myself as having an opportunity for being an agent of good by working in our society in the field of jurisprudence. I want to be able to help people and now I have the confidence and faith that I can do this by being a lawyer.

Other students offer a more pessimistic view of the role of law in society. As one student put it:

Law school, and all it entails, promotes satisfaction with oneself: one works hard, develops gratifying relationships (at times) with sensitive, intelligent people and one feels an undeserved sense of superiority when one compares one's life situations with others.

The goals and imperatives of law school do not coincide with the goals and imperatives of being faithful to the human condition. In the next three years, I will be continually reminded and assured of the propriety of our society, and its culture and institutions. Instead of recognizing our society and culture for what it is, the chief purveyor of illusions about our humanity, I will be told of the ways to ensure through law the continuity of this mass of illusions, myths, and deceptions we call society.

If one believes that the social order fosters inequality and ignores the need for human freedom and dignity, and the legal system supports this unjust society, a lawyer will face an uphill struggle to be a good person. The good person pursues justice. One who actively works to support a system in which justice is forgotten cannot lay claim to goodness.