The Ideology of Domination: Barriers to Client Autonomy in Legal Ethics Scholarship

Yale Law Journal

Volumn 107, Issue 8, 1998, Pages 2473-2508

  Gear, Camille A ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0042069603     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797348     Document Type: Article

References (235)

1. Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer Client Relation, 85 YALE L.J. 1060, 1065 (1976).
2. See, e.g., Monroe H. Freedman, Arguing the Law in an Adversary System, 16 GA. L. REV. 833, 835 (1982) (maintaining that the Model Rules of Professional Conduct requires attorneys to engage in zealous advocacy and therefore to help clients act autonomously under the law); Fried, supra note 1, at 1073 (arguing that the Constitution requires that we allow clients to exercise their autonomy under the law); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239 (1991) (arguing that the lawyer's historic role was to advance client autonomy); see also Drucilla Cornell, Toward a Modern Postmodern Reconstruction of Ethics, 133 U. PA. L. REV. 291 (1985) (using philosophy to explain the importance of personal autonomy).
3. See, e.g., Monroe H. Freedman, Arguing the Law in an Adversary System, 16 GA. L. REV. 833, 835 (1982) (maintaining that the Model Rules of Professional Conduct requires attorneys to engage in zealous advocacy and therefore to help clients act autonomously under the law); Fried, supra note 1, at 1073 (arguing that the Constitution requires that we allow clients to exercise their autonomy under the law); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239 (1991) (arguing that the lawyer's historic role was to advance client autonomy); see also Drucilla Cornell, Toward a Modern Postmodern Reconstruction of Ethics, 133 U. PA. L. REV. 291 (1985) (using philosophy to explain the importance of personal autonomy).
4. See, e.g., Monroe H. Freedman, Arguing the Law in an Adversary System, 16 GA. L. REV. 833, 835 (1982) (maintaining that the Model Rules of Professional Conduct requires attorneys to engage in zealous advocacy and therefore to help clients act autonomously under the law); Fried, supra note 1, at 1073 (arguing that the Constitution requires that we allow clients to exercise their autonomy under the law); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239 (1991) (arguing that the lawyer's historic role was to advance client autonomy); see also Drucilla Cornell, Toward a Modern Postmodern Reconstruction of Ethics, 133 U. PA. L. REV. 291 (1985) (using philosophy to explain the importance of personal autonomy).
5. See, e.g., David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 STAN. L. REV. 1981, 2022 (1993) (arguing that lawyers have an obligation to engage in an independent determination of whether a client's goals are moral); Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1321 (1995) (same).
6. See, e.g., David B. Wilkins, Two Paths to the Mountaintop? The Role of Legal Education in Shaping the Values of Black Corporate Lawyers, 45 STAN. L. REV. 1981, 2022 (1993) (arguing that lawyers have an obligation to engage in an independent determination of whether a client's goals are moral); Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1321 (1995) (same).
7. The term "lawyer-as-statesman" as used in this discussion primarily refers to William Simon's ethical discretion model. See William H. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083 (1988). Under this model, the lawyer only pursues a client's goals if she advances the legal system's view of justice. The model is based secondarily on Anthony Kronman's lawyer-statesman ideal, which embodies a softer version of ethical discretion. See ANTHONY KRONMAN, THE LOST LAWYER: THE FAILING IDEALS OF THE LEGAL PROFESSION 144-45 (1993). The lawyer-statesman attorney privileges his clients' interests but reserves the option to refuse to help the client pursue goals that conflict with the legal system's view of justice. Kronman notes the inherent problems with suggesting that the lawyer intervene in this manner, but argues that "a courageous lawyer is prepared to take risks for what he or she believes is right - to risk anger, contempt and a lower income - for the sake of the law's own good." Id. at 145.
8. The term "lawyer-as-statesman" as used in this discussion primarily refers to William Simon's ethical discretion model. See William H. Simon, Ethical Discretion in Lawyering, 101 HARV. L. REV. 1083 (1988). Under this model, the lawyer only pursues a client's goals if she advances the legal system's view of justice. The model is based secondarily on Anthony Kronman's lawyer-statesman ideal, which embodies a softer version of ethical discretion. See ANTHONY KRONMAN, THE LOST LAWYER: THE FAILING IDEALS OF THE LEGAL PROFESSION 144-45 (1993). The lawyer-statesman attorney privileges his clients' interests but reserves the option to refuse to help the client pursue goals that conflict with the legal system's view of justice. Kronman notes the inherent problems with suggesting that the lawyer intervene in this manner, but argues that "a courageous lawyer is prepared to take risks for what he or she believes is right - to risk anger, contempt and a lower income - for the sake of the law's own good." Id. at 145.
9. The lawyer-as-friend pursues only causes that advance the ideals of her moral code. See Fried, supra note 1, at 1083-84. Fried argues that the lawyer may not import her entire moral code into the representation, but he leaves it to the individual attorney to identify which of her moral values to use in the representation.
10. The lawyer-as-hired-gun advances a client's cause if her representation will allow the client to exercise her rights freely, in the way the Constitution intended. See Freedman, supra note 2, at 837.
11. See, e.g., KRONMAN, supra note 4; Monroe H. Freedman, The Lawyer's Moral Obligation of Justification, 74 TEX. L. REV. 111 (1995); David Luban, The Lysistrian Prerogative: A Response to Stephen Pepper, 1987 AM. B. FOUND. RES. J. 637.
12. See, e.g., KRONMAN, supra note 4; Monroe H. Freedman, The Lawyer's Moral Obligation of Justification, 74 TEX. L. REV. 111 (1995); David Luban, The Lysistrian Prerogative: A Response to Stephen Pepper, 1987 AM. B. FOUND. RES. J. 637.
13. See, e.g., KRONMAN, supra note 4; Monroe H. Freedman, The Lawyer's Moral Obligation of Justification, 74 TEX. L. REV. 111 (1995); David Luban, The Lysistrian Prerogative: A Response to Stephen Pepper, 1987 AM. B. FOUND. RES. J. 637.
14. Although my clinic supervisor gave me permission to use this client's story, I am still troubled by my decision to use her case to unravel my moral concerns. My hope is that her story will help attorneys learn how to enable their clients to claim their right to autonomy. In order to mask the identity of this client in the sketch that follows, the names of all involved parties have been changed. The sketch is a composite based on several meetings I had with my client over a six-month period.
15. For a description of another state's process for developing a parent treatment plan, see Marcia Sprague & Mark Hardin, Coordination of Juvenile and Criminal Court Child Abuse and Neglect Proceedings, 25 U. LOUISVILLE J. FAM. L. 239, 242 (1996-1997).
16. Several of the texts that describe the traditional ethics models are abstract theoretical discussions; this Note, in contrast, instrumentalizes principles in these discussions. Scholars disagree about whether philosophy is the best means of explaining the nature of legal ethics. Compare Roger C. Cramton & Susan P. Koniak, Rule, Story, and Commitment in the Teaching of Legal Ethics, 38 WM. & MARY L. REV. 145, 160-61 (1996) (arguing that philosophical ethics discussions usually are not well suited to addressing concrete lawyer problems), and Paul R. Tremblay, Practiced Moral Activism, 8 ST. THOMAS L. REV. 9, 10-14 (1995) (same), with KRONMAN, supra note 4, at 6 (arguing that philosophy can be helpful in discussions of lawyer ethics), and Fried, supra note 1, at 1061 (same).
17. Several of the texts that describe the traditional ethics models are abstract theoretical discussions; this Note, in contrast, instrumentalizes principles in these discussions. Scholars disagree about whether philosophy is the best means of explaining the nature of legal ethics. Compare Roger C. Cramton & Susan P. Koniak, Rule, Story, and Commitment in the Teaching of Legal Ethics, 38 WM. & MARY L. REV. 145, 160-61 (1996) (arguing that philosophical ethics discussions usually are not well suited to addressing concrete lawyer problems), and Paul R. Tremblay, Practiced Moral Activism, 8 ST. THOMAS L. REV. 9, 10-14 (1995) (same), with KRONMAN, supra note 4, at 6 (arguing that philosophy can be helpful in discussions of lawyer ethics), and Fried, supra note 1, at 1061 (same).
18. Ms. Scott's DCF worker often accused Ms. Scott of drug use without any hard proof.
19. Ms. Scott's long absences may have resulted from mental illness. Cf. John Petrila, Ethics, Money and the Problem of Managed Behavioral Health Care, 40 ST. LOUIS U. L.J. 359, 394-95 (1992) (explaining that persons who are mentally ill and abuse substances periodically disappear and exhibit low trust).
20. Subsequently, I learned that the DCF records were inaccurate: Ms. Scott had visited her son twice during the three-month period and had shown up at DCF offices on unscheduled days.
21. The Model Rules of Professional Conduct provide some guidance on ethical conduct. An attorney, however, may exercise additional discretion to control a client when it is appropriate. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3 cmt. 1 (1995) ("[A] lawyer is not bound to press for every advantage that might be realized for a client.").
22. Cf. Austin Sarat & William L.F. Felstiner, Law and Social Relations: Vocabularies of Motive in Lawyer/Client Interaction, in THE LAW AND SOCIETY READER 403, 405 (Richard Abel ed., 1995) (arguing that clients may speak in a different language of motive than the attorney in order to "resist the exercise of professional power").
23. See supra notes 4-6 and accompanying text; see also Freedman, supra note 7, at 114 (assigning professional ethics models different names); Jack L. Sammons, Rank Strangers to Me: Shaffer and Cochran's Friendship Model of Moral Counseling in the Law Office, 18 U. ARK. LITTLE ROCK L.J. 1 (1995) (same).
24. See supra notes 4-6 and accompanying text; see also Freedman, supra note 7, at 114 (assigning professional ethics models different names); Jack L. Sammons, Rank Strangers to Me: Shaffer and Cochran's Friendship Model of Moral Counseling in the Law Office, 18 U. ARK. LITTLE ROCK L.J. 1 (1995) (same).
25. See KRONMAN, supra note 4, at 15 (describing the lawyer-statesman model); Simon, supra note 4, at 1090 (describing the ethical discretion model); see also infra Section II.A (presenting the lawyer-as-statesman model).
26. This is the classical definition of the hired-gun model. Monroe Freedman, is discussed later in more detail. See infra Section II.C. This contemporary version allows the attorney to choose a client based on the attorney's moral inclinations and allows the attorney to sever her relationship with her client if she determines that the client is immoral.
27. Cf. Charles J. Ogletree, Jr., Beyond Justifications: Seeking Motivations To Sustain Public Defenders, 106 HARV. L. REV. 1239, 1239 (1993) (arguing that lawyers need identity-sustaining justifications for why they have chosen to be lawyers and why they make work-related decisions).
28. Cf. Gerald P. López, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 GEO. L.J. 1603, 1613 (1989) (arguing that the practice of law is enriched by the perspectives of poor and disempowered persons).
29. Ethics scholars have rejected the idea that clients are "infinitely . . . more valuable than any government . . . and that rules of legal ethics should be derived from th[is] premise." Monroe H. Freedman, The Professional Responsibility of the Law Professor: Three Neglected Questions, 39 VAND. L. REV. 275, 275-76 (1986) (arguing that this kind of Christianity-based lawyer ethics has not taken persuasive hold in the community of ethics scholars).
30. Oppositional scholars are scholars from Critical Legal Studies (CLS), Critical Race Theory (CRT), and Feminist Legal Studies. See Eleanor Marie Brown, Note, The Tower of Babel: Bridging the Divide Between Critical Race Theory and "Mainstream" Civil Rights Scholarship, 105 YALE L.J. 513, 516 (1995) (describing the same group of scholars as "outsider" scholars). Since oppositional scholars have adopted the ideology of domination, they assume that there is a moral conflict between the attorney and the client. See, e.g., Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 CAL. L. REV. 61, 70-72 (1996) (arguing that true empathy will end attorney-client conflict); Peter Margulies, The Mother with Poor Judgment and Other Tales of the Unexpected: A Civil Republican View of Difference and Clinical Legal Education, 88 NW. U. L. REV. 695 (1994) (arguing that better attention to conflicting messages in clients' stories will end attorney-client conflict); Ogletree, supra note 19, at 1271-75 (arguing that immersion in the client's experience will end attorney-client conflict).
31. Oppositional scholars are scholars from Critical Legal Studies (CLS), Critical Race Theory (CRT), and Feminist Legal Studies. See Eleanor Marie Brown, Note, The Tower of Babel: Bridging the Divide Between Critical Race Theory and "Mainstream" Civil Rights Scholarship, 105 YALE L.J. 513, 516 (1995) (describing the same group of scholars as "outsider" scholars). Since oppositional scholars have adopted the ideology of domination, they assume that there is a moral conflict between the attorney and the client. See, e.g., Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 CAL. L. REV. 61, 70-72 (1996) (arguing that true empathy will end attorney-client conflict); Peter Margulies, The Mother with Poor Judgment and Other Tales of the Unexpected: A Civil Republican View of Difference and Clinical Legal Education, 88 NW. U. L. REV. 695 (1994) (arguing that better attention to conflicting messages in clients' stories will end attorney-client conflict); Ogletree, supra note 19, at 1271-75 (arguing that immersion in the client's experience will end attorney-client conflict).
32. Oppositional scholars are scholars from Critical Legal Studies (CLS), Critical Race Theory (CRT), and Feminist Legal Studies. See Eleanor Marie Brown, Note, The Tower of Babel: Bridging the Divide Between Critical Race Theory and "Mainstream" Civil Rights Scholarship, 105 YALE L.J. 513, 516 (1995) (describing the same group of scholars as "outsider" scholars). Since oppositional scholars have adopted the ideology of domination, they assume that there is a moral conflict between the attorney and the client. See, e.g., Richard Delgado, Rodrigo's Eleventh Chronicle: Empathy and False Empathy, 84 CAL. L. REV. 61, 70-72 (1996) (arguing that true empathy will end attorney-client conflict); Peter Margulies, The Mother with Poor Judgment and Other Tales of the Unexpected: A Civil Republican View of Difference and Clinical Legal Education, 88 NW. U. L. REV. 695 (1994) (arguing that better attention to conflicting messages in clients' stories will end attorney-client conflict); Ogletree, supra note 19, at 1271-75 (arguing that immersion in the client's experience will end attorney-client conflict).
33. Oppositional scholars are surprised to find that their "day to day habits," their "ways of seeing, hearing, and responding to . . . clients, all too often have the ironic - indeed perverse - effect of repressing the capacities and aspirations of the very people and communities [they] seek to help." Lucie B. White, Paradox, PieceWork, and Patience, 43 HASTINGS L.J. 853, 853 (1992).
34. See, e.g., Monroe H. Freedman, Professionalism in the American Adversary System, 41 EMORY L.J. 467, 467 (1992); Anthony T. Kronman, The Fault in Legal Ethics, 100 DICK. L. REV. 489, 494 (1996) (arguing that one of the oldest justifications for client autonomy comes from the philosophical doctrine of contractarianism).
35. See, e.g., Monroe H. Freedman, Professionalism in the American Adversary System, 41 EMORY L.J. 467, 467 (1992); Anthony T. Kronman, The Fault in Legal Ethics, 100 DICK. L. REV. 489, 494 (1996) (arguing that one of the oldest justifications for client autonomy comes from the philosophical doctrine of contractarianism).
36. See, e.g., Freedman, supra note 24, at 470. Scholars also point to the constitutional guarantees providing for the' assistance of counsel in certain cases as textual proof that the founders intended that persons would be given a lawyer's help when seeking legal relief. See, e.g., id.
37. See, e.g., Fried, supra note 1, at 1073; Kronman, supra note 24, at 495 (noting that some believe that the hired-gun or contractarian lawyer assumes that a clash of views will make the legal system accurately reflect society's interests).
38. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 7-101 (1981).
39. See, e.g., Simon, supra note 4, at 1086 (arguing that the libertarian hired-gun model of advocacy that allows clients to act autonomously is suggested by the Model Rules).
40. See Tremblay, supra note 10, at 11-27 (cataloguing the major ethics scholars' arguments for rejecting lawyering approaches that are solely devoted to client autonomy).
41. Cf. Freedman, supra note 21, at 275 (claiming that because law professors are isolated from client contact they tend to privilege third parties' interests over the interests of clients).
42. Kronman explains that the attorney's special knowledge about the law qualifies her to act as an autonomous agent who weighs whether clients should be allowed to pursue their goals. See KRONMAN, supra note 4, at 122-23. Fried argues that the attorney's autonomy is what allows her to express her individuality. See Fried, supra note 1, at 1069.
43. See, e.g., William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213, 213 (1991) (arguing from a traditionalist's perspective that client autonomy is an unrealizable goal); see also Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107, 2111 (1991) (arguing as a CLS scholar that scholars must contend witn the fact that lawyer translation of client interests inevitably silences clients in some manner); White, supra note 23, at 853 (noting that oppositional scholars recognize that their lawyering styles compromise clients' autonomy).
44. See, e.g., William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213, 213 (1991) (arguing from a traditionalist's perspective that client autonomy is an unrealizable goal); see also Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107, 2111 (1991) (arguing as a CLS scholar that scholars must contend witn the fact that lawyer translation of client interests inevitably silences clients in some manner); White, supra note 23, at 853 (noting that oppositional scholars recognize that their lawyering styles compromise clients' autonomy).
45. See, e.g., William H. Simon, Lawyer Advice and Client Autonomy: Mrs. Jones's Case, 50 MD. L. REV. 213, 213 (1991) (arguing from a traditionalist's perspective that client autonomy is an unrealizable goal); see also Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 YALE L.J. 2107, 2111 (1991) (arguing as a CLS scholar that scholars must contend witn the fact that lawyer translation of client interests inevitably silences clients in some manner); White, supra note 23, at 853 (noting that oppositional scholars recognize that their lawyering styles compromise clients' autonomy).
46. See JOSEPH H. KUPFER, AUTONOMY AND SOCIAL INTERACTION 10-14 (1990).
47. See id. at 18.
48. Id. at 10.
49. Cf. TERRY EAGLETON, IDEOLOGY 15 (1991) (explaining how ideology limits perception); STUART HALL, CRITICAL DIALOGUES IN CULTURAL STUDIES 26 (David Morley & Kuan-Hsing Chen eds., 1996) (explaining how ideology enables people to make sense of their environments and social relationships).
50. Cf. TERRY EAGLETON, IDEOLOGY 15 (1991) (explaining how ideology limits perception); STUART HALL, CRITICAL DIALOGUES IN CULTURAL STUDIES 26 (David Morley & Kuan-Hsing Chen eds., 1996) (explaining how ideology enables people to make sense of their environments and social relationships).
51. See Milner S. Ball, The Politics of Law: A Progressive Critique, 51 GEO. WASH. L. REV. 309, 311 (1983) (book review) (citing Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW 286, 287 (David Kairys ed., 1982)); see also HALL, supra note 36, at 26.
52. See Milner S. Ball, The Politics of Law: A Progressive Critique, 51 GEO. WASH. L. REV. 309, 311 (1983) (book review) (citing Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW 286, 287 (David Kairys ed., 1982)); see also HALL, supra note 36, at 26.
53. See Milner S. Ball, The Politics of Law: A Progressive Critique, 51 GEO. WASH. L. REV. 309, 311 (1983) (book review) (citing Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW 286, 287 (David Kairys ed., 1982)); see also HALL, supra note 36, at 26.
54. Ball, supra note 37, at 311 (quoting Gordon, supra note 37, at 287).
55. See HALL, supra note 36, at 26. This Note relies on Antonio Gramsci's definition of ideology, which is used in most CLS scholars' and cultural studies scholars' work. Gramsci's explanation of ideological functioning is superior to those of other scholars because he presumes that individuals have the power to resist ideological messages and that they choose among competing ideological regimes. See id.
56. See EAGLETON, supra note 36, at 15; HALL, supra note 36, at 26.
57. See JUDITH BUTLER, GENDER TROUBLE: FEMINISM AND THE SUBVERSION OF IDENTITY at ix (1990) (explaining that identity categories are "the effects of institutions, practices [and] discourses"); EAGLETON, supra note 36, at 1-2 (discussing ideology's role in creating subject positions and creating relationships between the subject and social institutions).
58. See EAGLETON, supra note 36, at 14-15.
59. Id.
60. Cf. JUDITH BUTLER, BODIES THAT MATTER at x-xi (1993) (explaining that one can analyze ideologies for identity-performance practices other than practices used to enact gender identity).
61. See HALL, supra note 36, at 30 (describing the Althusserian idea of how "ideology becomes internalized, how we come to speak spontaneously within the limits of categories of thought").
62. See id. at 27 (summarizing Gramsci's insights and describing how some ideology evolves into "language of practical thought which stabilizes a particular form of power and domination; or which reconcile and accommodate the mass of the people to [a] subordinate position").
63. James Gray Pope, Labor's Constitution of Freedom, 106 YALE L.J. 941, 951 (1997). Pope, a CLS scholar, invites us to imagine a world dominated by hegemonic thought: "In this [world], A might exercise power over B not only by excluding her grievances from the public agenda, but also by preventing her from recognizing them as remediable problems, or even by convincing her that she is not the kind of person who is capable of defining and acting on grievances." Id. at 950.
64. HALL, supra note 36, at 30.
65. See KRONMAN, supra note 4, at 97-98.
66. See López, supra note 20, at 1607 (arguing that lawyers fighting against the dominant approaches of lawyering resist practices "more through instinct than through self-conscious design").
67. See Fried, supra note 1, at 1065.
68. See KRONMAN, supra note 4, at 15.
69. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 2.1 (1995) ("In reprensenting a client, a lawyer . . . may refer not only to law but to . . . moral, economic, social and political factors . . . .").
70. See, e.g., id. cmt. 2 ("It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.").
71. See, e.g., KRONMAN, supra note 4, at 114 (arguing that lawyers fear that they are required to forfeit their consciences when they represent clients). CRT scholar David Wilkins also notes that the lawyer's moral identity is tied to client representation. He argues that the lawyer has a right to find moral satisfaction in her work and this right brings a responsibility for client goals. See Wilkins, supra note 3, at 1985. Note that, because Wilkins sees the lawyer's selection of clients and the lawyer's suggestion of client means and ends as part of the lawyer's identity, he also makes the lawyer responsible for her clients' resulting actions.
72. Scholars have noted that, in reality, lawyers tend to gravitate toward clients with interests similar to their own. See Wilkins, supra note 3, at 2022; Zacharias, supra note 3, at 1303.
73. Cf. Monroe H. Freedman, Legal Ethics and the Suffering Client, 36 CATH. U. L. REV. 331, 334-36 (1987) (noting that a lawyer is likely to be resistant to a client's efforts to pursue a moral course of action that the lawyer perceives as alien, and the lawyer is unlikely to change her own moral view).
74. See KRONMAN, supra note 4, at 138 (arguing that the lawyer's goal is to help a client while advancing the law's well-being); see also Fried, supra note 1, at 1081 (arguing that when the lawyer advocates for a client in ways that shape the law, the "lawyer's conduct . . . travels outside the bounds of legal friendship and becomes political friendship, political agitation, or friendship tout court").
75. See Fried, supra note 1, at 1081 (noting that zealous advocacy does not require the belief that the legal system fails to protect clients' rights adequately).
76. The system-protector construct is relatively weak, and may not describe the lawyer's experience with perfect accuracy. For example, civil rights lawyers, public defenders, and corporate lawyers regularly flout the substantive law by stretching legal rules and procedural protections to help their clients. See William H. Simon, Should Lawyers Obey the Law?, 38 WM. & MARY L. REV. 217, 228-39 (1996) (cataloguing examples of heroic lawyers in literature, legal studies, and popular culture who do not adhere to the system-protector construct).
77. The system-protector construct is relatively weak, and may not describe the lawyer's experience with perfect accuracy. For example, civil rights lawyers, public defenders, and corporate lawyers regularly flout the substantive law by stretching legal rules and procedural protections to help their clients. See William H. Simon, Should Lawyers Obey the Law?, 38 WM. & MARY L. REV. 217, 228-39 (1996) (cataloguing examples of heroic lawyers in literature, legal studies, and popular culture who do not adhere to the system-protector construct).
78. This construct has a disproportionate effect on marginalized communities. Cf. David B. Wilkins, Practical Wisdom for Practicing Lawyers: Separating Ideals from Ideology in Legal Ethics, 108 HARV. L. REV. 458, 469-70 (1994) (reviewing KRONMAN, supra note 4) (describing issues that suggest that marginalized communities need lawyers who are not system protectors).
79. Roger Cramton and Susan Koniak argue that the system-protector construct performs two functions: It minimizes lawyers' understanding of clients' pain, and it prevents clients from securing the means to change the law. Cramton and Koniak explain that because the system-protector lawyer must proceed on the presumption that present conditions are not so terrible, that currently existing society is not so unjust, corrupt or violent, [she] begin[s] with a blindness to the pain of those who have been or are now the victims of society's great wrongs . . . . [Therefore t]he pain of these [victims] cannot be so great because society is not so bad, or so the [system-protector] must believe. Cramton & Koniak, supra note 10, at 196. Cramton and Koniak's observation also shows that lawyers from marginalized communities are further marginalized by the ethics literature. For example, one wonders how a Native American attorney could believe that the law promotes justice, given the wild vacillation in the definition of Native Americans' rights over the past 100 years.
80. See Pope, supra note 47, at 950 (citing RAYMOND WILLIAMS, MARXISM AND LITERATURE 111 (1977)).
81. See Pope, supra note 47, at 950 (citing RAYMOND WILLIAMS, MARXISM AND LITERATURE 111 (1977)).
82. See id.
83. Only recently have legal scholars started to look at how legally constituted ideologies construct people's identities. See, e.g., James Boyle, Is Subjectivity Possible? The Postmodern Subject in Legal Theory, 62 U. COLO. L. REV. 489, 504 (1991) (arguing that CLS has paid insufficient attention to the concept of subject formation).
84. See BUTLER, supra note 44, at x-xi. Identity-performance theory can be used to analyze the ethics literature because ethics scholars argue that lawyers should see professional identity as their primary identity and that lawyers should use the ethics literature to define their identity perspectives. See, e.g., Geoffrey C. Hazard, Jr., Dimensions of Ethical Responsibility: Relevant Others, 54 U. PITT. L. REV. 965 (1993); see also Kenneth Anderson, A New Class of Lawyers: The Therapeutic as Rights Talk, 96 COLUM. L. REV. 1062, 1069 (1996) (review essay) ("[I]ncreasingly, the law has become the only personal identity for its practitioners, lawyers are increasingly unable to define themselves in terms other than their occupational and professional ones."). Anderson shows that ethics literature, commencement addresses, and clinic classes suggest that professional identity is the lawyer's primary identity. Anderson also notes that because modern lawyers spend more time at work than lawyers did in the past, they have tended to express their personal and political commitments in their professional lives. See Anderson, supra, at 1069-72.
85. See BUTLER, supra note 44, at x-xi. Identity-performance theory can be used to analyze the ethics literature because ethics scholars argue that lawyers should see professional identity as their primary identity and that lawyers should use the ethics literature to define their identity perspectives. See, e.g., Geoffrey C. Hazard, Jr., Dimensions of Ethical Responsibility: Relevant Others, 54 U. PITT. L. REV. 965 (1993); see also Kenneth Anderson, A New Class of Lawyers: The Therapeutic as Rights Talk, 96 COLUM. L. REV. 1062, 1069 (1996) (review essay) ("[I]ncreasingly, the law has become the only personal identity for its practitioners, lawyers are increasingly unable to define themselves in terms other than their occupational and professional ones."). Anderson shows that ethics literature, commencement addresses, and clinic classes suggest that professional identity is the lawyer's primary identity. Anderson also notes that because modern lawyers spend more time at work than lawyers did in the past, they have tended to express their personal and political commitments in their professional lives. See Anderson, supra, at 1069-72.
86. See BUTLER, supra note 44, at x-xi. Identity-performance theory can be used to analyze the ethics literature because ethics scholars argue that lawyers should see professional identity as their primary identity and that lawyers should use the ethics literature to define their identity perspectives. See, e.g., Geoffrey C. Hazard, Jr., Dimensions of Ethical Responsibility: Relevant Others, 54 U. PITT. L. REV. 965 (1993); see also Kenneth Anderson, A New Class of Lawyers: The Therapeutic as Rights Talk, 96 COLUM. L. REV. 1062, 1069 (1996) (review essay) ("[I]ncreasingly, the law has become the only personal identity for its practitioners, lawyers are increasingly unable to define themselves in terms other than their occupational and professional ones."). Anderson shows that ethics literature, commencement addresses, and clinic classes suggest that professional identity is the lawyer's primary identity. Anderson also notes that because modern lawyers spend more time at work than lawyers did in the past, they have tended to express their personal and political commitments in their professional lives. See Anderson, supra, at 1069-72.
87. Butler's theory is easily extended to other areas of identity maintenance because it is based on a theory that addresses identity-formation practices generally. See, e.g., J.L. AUSTIN, HOW TO DO THINGS WITH WORDS (1962) (describing how identities are structured through language); JOHN R. SEARLE, SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE (1969) (elaborating on Austin's theory). Austin and Searle theorize about the linguistic distinctions between words' power to perform things and words' imprecise enactment of the speaker's intended performance. Butler has instrumentalized their ideas in her work. See BUTLER, supra note 44, at x-xi.
88. Butler's theory is easily extended to other areas of identity maintenance because it is based on a theory that addresses identity-formation practices generally. See, e.g., J.L. AUSTIN, HOW TO DO THINGS WITH WORDS (1962) (describing how identities are structured through language); JOHN R. SEARLE, SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE (1969) (elaborating on Austin's theory). Austin and Searle theorize about the linguistic distinctions between words' power to perform things and words' imprecise enactment of the speaker's intended performance. Butler has instrumentalized their ideas in her work. See BUTLER, supra note 44, at x-xi.
89. Butler's theory is easily extended to other areas of identity maintenance because it is based on a theory that addresses identity-formation practices generally. See, e.g., J.L. AUSTIN, HOW TO DO THINGS WITH WORDS (1962) (describing how identities are structured through language); JOHN R. SEARLE, SPEECH ACTS: AN ESSAY IN THE PHILOSOPHY OF LANGUAGE (1969) (elaborating on Austin's theory). Austin and Searle theorize about the linguistic distinctions between words' power to perform things and words' imprecise enactment of the speaker's intended performance. Butler has instrumentalized their ideas in her work. See BUTLER, supra note 44, at x-xi.
90. See BUTLER, supra note 44, at ix-x; see also Jerry Frug, Decentralizing Decentralization, 60 U. CHI. L. REV. 253, 306-07 (1993) (describing Butler's performativity theory).
91. See BUTLER, supra note 44, at ix-x; see also Jerry Frug, Decentralizing Decentralization, 60 U. CHI. L. REV. 253, 306-07 (1993) (describing Butler's performativity theory).
92. See BUTLER, supra note 44, at x-xi. Butler's theory might be criticized for oversimplifying the process by which persons select gender-identity-affirming practices because it is difficult to locate uncontested articulations of gender in modern social discourse. In contrast, models of professional identity are fairly static, and ethics treatments habitually refer to paradigmatic examples of professionalism. Therefore, Butler's performativity theory has great explanatory power in discussions of professional identity.
93. See id.
94. See id. Several legal scholars have discussed Butler's performativity analysis. See, e.g., Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1166 (1996) (using a performativity model to analyze sexual orientation and gender identity); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 771 (1997) (same). Scholars are also beginning to extend the model. See Judith Butler, Burning Acts: Injurious Speech, 3 U. CHI. ROUNDTABLE 199, 199-204 (1996) (using performativity to analyze hate speech); Frug, supra note 68, at 262-63 (using performativity to explain how municipalities are treated as legal subjects). Thus far, no scholar has used it to analyze lawyers' identity-maintenance strategies.
95. See id. Several legal scholars have discussed Butler's performativity analysis. See, e.g., Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1166 (1996) (using a performativity model to analyze sexual orientation and gender identity); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 771 (1997) (same). Scholars are also beginning to extend the model. See Judith Butler, Burning Acts: Injurious Speech, 3 U. CHI. ROUNDTABLE 199, 199-204 (1996) (using performativity to analyze hate speech); Frug, supra note 68, at 262-63 (using performativity to explain how municipalities are treated as legal subjects). Thus far, no scholar has used it to analyze lawyers' identity-maintenance strategies.
96. See id. Several legal scholars have discussed Butler's performativity analysis. See, e.g., Martha M. Ertman, Contractual Purgatory for Sexual Marginorities: Not Heaven, but Not Hell Either, 73 DENV. U. L. REV. 1107, 1166 (1996) (using a performativity model to analyze sexual orientation and gender identity); Katherine M. Franke, What's Wrong with Sexual Harassment?, 49 STAN. L. REV. 691, 771 (1997) (same). Scholars are also beginning to extend the model. See Judith Butler, Burning Acts: Injurious Speech, 3 U. CHI. ROUNDTABLE 199, 199-204 (1996) (using performativity to analyze hate speech); Frug, supra note 68, at 262-63 (using performativity to explain how municipalities are treated as legal subjects). Thus far, no scholar has used it to analyze lawyers' identity-maintenance strategies.
97. See, e.g., Fried, supra note 1, at 1063 (comparing a lawyer's duty of care to a doctor's duty of care); Hazard, supra note 66, at 965 (arguing that ethical standards used in other professions can be used to determine bases for lawyer ethics).
98. See KRONMAN, supra note 4, at 14-15 (describing practices that identify the lawyer-statesman); Gerald P. López, An Aversion to Clients: Loving Humanity and Hating Human Beings, 31 HARV. C.R.-C.L. L. REV. 315, 322 (1996) (identifying practices that define a progressive lawyer).
99. See KRONMAN, supra note 4, at 14-15 (describing practices that identify the lawyer-statesman); Gerald P. López, An Aversion to Clients: Loving Humanity and Hating Human Beings, 31 HARV. C.R.-C.L. L. REV. 315, 322 (1996) (identifying practices that define a progressive lawyer).
100. Cf. KRONMAN, supra note 4, at 1-4 (arguing that deviation from the lawyer-statesman model has made lawyers lose their identity); Freedman, supra note 57, at 336 (arguing that there is no acceptable alternative to a model other than the contemporary hired-gun approach).
101. See, e.g., KRONMAN, supra note 4, at 7 (urging lawyers to restore the lawyer-statesman model); Lopez, supra note 73, at 322 (drawing a more loosely defined, but exclusive model of progressive lawyering).
102. See BUTLER, supra note 44, at 18-19. In the context of gender identity, Butler notes that a person stops compulsively engaging in identity practices when she feels that she has marked her body so that she is socially recognized as a given gender. See id.
103. See KRONMAN, supra note 4, at 155.
104. Given the attorney's superior power, a poor client knows that resistance is futile. The attorney's specialized knowledged about the law allows the attorney to act so that the client may be unaware that her interests are being thwarted. See MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.3 cmt. 1 (1995) ("[A] lawyer is not bound to press for every advantage that might be realized for a client."); id. ("A lawyer has professional discretion in determining the means by a matter should be pursued."). Even if she learns of her lawyer's betrayal, the client's lack of legal knowledge will make her ill-equiped to respond to it. A poor client will often feel it is useless to change attorneys because she is aware that if she cannot convince her current attorney of her morality, her next attorney may not believe her either. Finally, the attorney has more power over the client because she enjoys almost limitless discretion to end the relationship on moral grounds. See id. Rule 1.16(b) (stating that a lawyer may withdraw when her client's objective is "repugnant or imprudent" or for "good cause").
105. See Fried, supra note 1, at 1065-66 (arguing that the client can wield the power of exit to show her dissatisfaction with her lawyer).
106. Kronman worries that clients will not hire lawyers who attempt to limit them from pursuing immoral ends. He calls for lawyers to be courageous and to reclaim their power. See KRONMAN, supra note 4, at 7. Simon makes the same argument. See Simon, supra note 4, at 1129.
107. KRONMAN, supra note 4, at 145.
108. See Sarat & Felstiner, supra note 15, at 418 (arguing that lawyers handling personal matters often tell clients to be suspicious of their own judgment because they are too emotional to make rational decisions about legal strategy).
109. Ball, supra note 37, at 312 (summarizing Gordon, supra note 37, at 289).
110. Id.
111. Id. at 311.
112. See ERNESTO LACLAU & CHANTAL MOUFFE, HEGEMONY & SOCIALIST STRATEGY: TOWARDS RADICAL DEMOCRATIC POLITICS 67, 186 (1985); see also White, supra note 23, at 856-59 (describing strategies for avoiding ideology-based descriptions of clients; cf. HALL, supra note 36, at 26 (arguing that "[w]e need to understand [the] role [ideas play] in a particular social formation, so as to inform the struggle to change society").
113. KRONMAN, supra note 4, at 2-4, 14-17.
114. Simon, supra note 4, at 1086; see also William H. Simon, The Ethics of Criminal Defense, 91 MICH. L. REV. 1703, 1703 (1993) (arguing that criminal defense lawyers should use an ethical discretion approach to lawyering).
115. See Simon, supra note 4, at 1083.
116. See id.
117. See KRONMAN, supra note 4, at 112-14, 118-19. Kronman believes the case method teaches the qualities of sympathy, moral detachment, and moral imagination necessary to develop practical wisdom. See id. at 112-14.
118. Simon, supra note 4, at 1084.
119. Id. at 1090.
120. See id. at 1084. Simon attempts to give the attorney some ability to deviate from the law's moral code by framing the legal issue either in narrow or broad terms. See id. at 1107-13. He notes that a lawyer may violate procedural rules if a fundamental legal right is at stake. The more a client's legal claim poses a threat to fundamental values, "the more justified the lawyer is in treating the relevant norms formally." Id. at 1103. Because, however, the attorney has the sole authority to decide when the client's fundamental values are at stake, a client whose moral code seems alien is unlikely to convince her attorney to ignore procedual rules.
121. See KRONMAN, supra note 4, at 129-32; Simon, supra note 4, at 1131; cf. Charles Fried, The Artificial Reason of Law or: What Lawyers Know, 60 TEX. L. REV. 35, 36-37 (1981) (questioning whether we can assume that the law's moral commands actually reflect the optimal moral calculus).
122. See KRONMAN, supra note 4, at 129-32; Simon, supra note 4, at 1131; cf. Charles Fried, The Artificial Reason of Law or: What Lawyers Know, 60 TEX. L. REV. 35, 36-37 (1981) (questioning whether we can assume that the law's moral commands actually reflect the optimal moral calculus).
123. Cf. KRONMAN, supra note 4, at 130-31 (describing the process as collaborative dialogue). Although Kronman argues that the lawyer and the client must be open to changing their views, he notes that if the attorney believes the client has not adopted a reasonable position, the attorney will have to make the decision whether to help the client pervert the law. See id. at 131. Kronman's goal is to convince lawyers that they can take an independent stand to protect the law in these instances.
124. See KUPFER, supra note 33, at 11.
125. See Simon, supra note 4, at 1083, 1092-93, 1104.
126. Id. at 1083.
127. See id. at 1091-92; see also KRONMAN, supra note 4, at 118 (explaining that when law students are trained to adopt the perspective of judges, they learn to weigh the relative merits of the client's interests against countervailing interests).
128. See KRONMAN, supra note 4, at 113-16 (discussing the case method's ability to teach a student to suppress all sympathetic capabilities to experience the judge's perspective of scrupulous neutrality). Kronman notes that law students initially fear that the process of empathizing with many people will cause them to lose their souls. See id. at 114-115. He describes how the case method teaches them to engage in disciplined empathy that allows them to treat people's interests with emotional distance. See id.
129. Simon, supra note 4, at 1091.
130. Kronman argues that the lawyers-as-statesman uses imagination to inhabit the mind of the client, and of the judge, and then considers what result would benefit the rule of law in the abstract. See KRONMAN, supra note 4, at 118-19; see also Simon, supra note 4, at 1090 (same). Simon also includes considerations of internal merit and relative merit. See Simon, supra note 4, at 1090-95.
131. Simon, supra note 4, at 1090.
132. See KRONMAN, supra note 4, at 4.
133. See id. at 138.
134. See id. at 122-23 (arguing that one cannot be a good lawyer without the lawyer-statesman's civicminded approach to analyzing legal issues and his ability to detach himself from partisan judgment); see also id. at 3 (arguing that lawyers were happier with their careers when they believed they played the lawyer-statesman role of developing civic ideals).
135. See id. at 16-17.
136. See Simon, supra note 4, at 1086-87.
137. Simon acknowledges that lawyers rarely adopt a single ethics model in unqualified form, but notes that the models function as heuristics to guide the lawyer's conduct. See id. at 1087.
138. Fried, supra note 1, at 1070.
139. See id. at 1082-84. This discussion simplifies Fried's philosophical discussion of the attorney's moral obligation to give life to the client's wishes. Fried first states that the client's interests are the paramount concern. See id. at 1080-81. He later argues that unless the client's wishes and her desired strategy are consistent with the attorney's personal moral code, the attorney is not obliged to do what the client asks. See id. at 1083. Fried notes that this formulation may lead the attorney to dominate her client, and he expresses concern that his model may allow a lawyer's "benevolent tyranny over and imposition on his client." Id. at 1066 n.17. He decides, however, "not [to] touch" these problems. Id.
140. See id. at 1081.
141. Id. at 1077.
142. Id. at 1078.
143. See id. at 1083-84. Fried issues a caveat: The lawyer may be required to offer representation to a repugnant client if the client would otherwise be left unrepresented. See id. at 1074 n.27. Even this obligation, however, is limited to situations in which the client has an essential right at stake. See id. at 1086. Because the lawyer determines what an essential right is, a lawyer who is repulsed by her clients is more likely to conclude that the client is not pursuing an essential interest.
144. See generally JOSEPH GOLDSTEIN ET AL., BEYOND THE BEST INTERESTS OF THE CHILD (1979) (arguing that an attorney can make an objective assessment of the child's best interests).
145. Moreover, a lawyer's personal morality may simply reflect the goals of the elite. See Hazard, supra note 2, at 1241, 1268.
146. Fried, supra note 1, at 1069. Fried often conflates attorneys' autonomy with their ability to judge clients. See id. at 1070.
147. Id. at 1069.
148. Fried was disturbed that a lawyer "can win approval as a good, maybe even great lawyer even though that loyalty is engrossed by . . . distasteful clients." Id. at 1060.
149. See id. at 1078-79.
150. Fried's discussion concentrates on amoral clients. His minimal discussion of the fair client, however, suggests that most often the lawyer will not need to change her own view. In his conclusion, he notes that clients often are already moral subjects who know how to treat others fairly. See id. at 1088.
151. See id. at 1083 & n.35.
152. Fried explains that zealous advocacy "does not require us to assume that the law is hostile to the client's rights." Id. at 1073. Rather, he explains, "[a]ll we need to assume is that even a system of law which is perfectly sensitive to personal rights would not work fairly unless the client could claim a professional's assistance." Id. Fried's decision not to direct the lawyer-as-friend to pervent the legal rules ensures that even if the lawyer is sympathetic to a client's cause, she cannot defy the substantive purpose of the law.
153. Fried argues that an enlightened, socially responsible, utilitarian conception of client selection, like the lawyer-as-statesman model, is unsatisfactory. See id. at 1060.
154. Fried also argues that the hired-gun model's propensity to allow lawyers to harm third parties is unacceptable, and shows why his lawyer-as-friend model solves this problem in a more satisfactory manner. See id. at 1064-65.
155. 2 TRIAL OF QUEEN CAROLINE 8 (J. Nightingale ed., London, J. Robins & Co. Albion Press 1820-1821).
156. Id.
157. Without a facilitator to help one engage in critical distinction-making, assessment, and judgment, it is difficult for one to develop autonomous evaluation capacities. See KUPFER, supra note 33, at 45.
158. Cf. Freedman, supra note 57, at 331 (urging lawyers to think of clients as people who need their help).
159. See id. at 333. Freedman explains that if the client has made a material misrepresentation about her situation, and the attorney would not have represented her if the truth had been known, the attorney can terminate the relationship. See id.
160. Freedman changes the hired gun's modus operandi to: [F]irst, help members of the public to be aware of their legal rights and of the availability of legal services . . . ; second, advise each client . . . regarding the client's legal rights . . . and moral obligations; and third, zealously and competently use all lawful means to protect and advance the client's lawful interests as the client determines those interests to be . . . . Freedman, supra note 24, at 470 (emphasis added).
161. Freedman does not explicitly state that the lawyer must base her moral counseling on her own moral code; nevertheless, it is an unstated premise in his discussions. See, e.g., Freedman, supra note 57, at 334-36; id. at 335 (arguing that lawyers "have a professional obligation to counsel [a] client to do what [the lawyer] believe[s] is the right thing").
162. At first glance, the contemporary hired gun may seem to have only one discretionary moment -at intake. Freedman argues that, "[u]ntil the lawyer-client relationship is contracted, . . . until, that is, the lawyer induces another to rely upon his or her professional knowledge and skills - the lawyer ordinarily acts entirely within the scope of his or her own autonomy." Id. at 332. He nonetheless mentions three additional instances when the lawyer can resist a client's wishes. See id. at 332-33.
163. See id. at 332-33.
164. Freedman distinguishes his model from the attorney-as-friend model by arguing that unlike the friend, the hired gun will not gently cajole a client into a course of action. She can merely highlight moral concerns. See Freedman, supra note 24, at 471.
165. See Freedman, supra note 57, at 332.
166. See id.
167. See Freedman, supra note 24, at 469.
168. Id. at 471. Freedman cites a series of constitutional cases to support his view, including Lassiter v. Dapartment of Social Services, 452 U.S. 18 (1981); and Goldberg v. Kelly, 397 U.S. 254 (1970). See Freedman, supra note 24, at 468-69 & nn.7-8.
169. See Freedman, supra note 24, at 468-69.
170. See Freedman, supra note 57, at 334-36 (challenge such models as paternalistic and elitist).
171. See, e.g., López, supra note 20, at 1716 (describing progressives' commitment to the postmodern view that knowledge comes from examining multiple, partial perspectives); White, supra note 23, at 854 (same).
172. At present, the rebellious-lawyering model is the most popular oppositional ethics approach. López created the model in part because he recognized that progressive lawyers were struggling against the regnant or traditional model of lawyering. See López, supra note 20, at 1606, 1608. The regnant model he describes encodes ideology-of-domination constructs. The rebellious-lawyering model posits that lawyer-client relationships should be collaborative and nonhierarchical and that the lawyer shares the political commitments of the community she serves. The rebellious lawyer uses a brand of political morality, derived from discussions with community members. See id. at 1608, 1613 n.17.
173. See López, supra note 73, at 318. CRT scholar David Wilkins, like Gerald López, argues that the lawyer should use her community allegiances to identify the moral values used in practice. See Wilkins, supra note 3, at 1985 (arguing that black corporate lawyers have a responsibility to express their allegiance to poor black communities when working with corporate clients). He believes that the profession ensūres its credibility by accepting moral responsibility for client actions. See Wilkins, supra note 61, at 473. This perspective is markedly similar to Fried's traditionalist view. See Fried, supra note 1, at 1069-70.
174. López, supra note 73, at 318.
175. See Tremblay, supra note 10, at 68 nn.184-85 (noting that there can be a conflict between an individual poor client's goals and the long-term interests of poor communities). Indeed, this directive can require the lawyer to pursue a variety of ends. See id. at 58, 59 (noting that López's requirement that the lawyer reflect the moral values of the community she serves could suggest helping poor persons facing more powerful people or helping clients who reflect the community's needs).
176. See Anthony V. Alfieri, Impoverished Practices, 81 GEO. L.J. 2567, 2567 (1993) [hereinafter Alfieri, Impoverished Practices]; Anthony V. Alfieri, Stances, 77 CORNELL L. REV. 1233, 1233 (1992) [hereinafter, Alfieri, Stances]
177. See Anthony V. Alfieri, Impoverished Practices, 81 GEO. L.J. 2567, 2567 (1993) [hereinafter Alfieri, Impoverished Practices]; Anthony V. Alfieri, Stances, 77 CORNELL L. REV. 1233, 1233 (1992) [hereinafter, Alfieri, Stances]
178. See Anthony V. Alfieri, Impoverished Practices, 81 GEO. L.J. 2567, 2567 (1993) [hereinafter Alfieri, Impoverished Practices]; Anthony V. Alfieri, Stances, 77 CORNELL L. REV. 1233, 1233 (1992) [hereinafter, Alfieri, Stances]
179. See Anthony V. Alfieri, Impoverished Practices, 81 GEO. L.J. 2567, 2567 (1993) [hereinafter Alfieri, Impoverished Practices]; Anthony V. Alfieri, Stances, 77 CORNELL L. REV. 1233, 1233 (1992) [hereinafter, Alfieri, Stances]
180. See López, supra note 20, at 1608.
181. Anthony Alfieri catalogues progressive scholars' attempts to address the lawyer's discretionary power to tell the client's story. See Alfieri, Stances, supra note 151, at 1234-40. He surveys work in which oppositional scholars describe lawyer "play," in which lawyers "shift[] the dominant-dependent hierarchy of the lawyer-client relation . . . to afford the client room to speak." Alfieri, supra note 32, at 2136-37. Many progressive scholars attempting lawyer "play" end up dominating their clients. See Alfieri, Stances, supra note 151, at 1235 (documenting one lawyer's failure at translation); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990) (discussing the author's failure to translate her client's story properly). These scholars' descriptions of play and lawyer-client translation are simply a more poetic manner of discussing the attorney-client battle of wills.
182. Anthony Alfieri catalogues progressive scholars' attempts to address the lawyer's discretionary power to tell the client's story. See Alfieri, Stances, supra note 151, at 1234-40. He surveys work in which oppositional scholars describe lawyer "play," in which lawyers "shift[] the dominant-dependent hierarchy of the lawyer-client relation . . . to afford the client room to speak." Alfieri, supra note 32, at 2136-37. Many progressive scholars attempting lawyer "play" end up dominating their clients. See Alfieri, Stances, supra note 151, at 1235 (documenting one lawyer's failure at translation); Lucie E. White, Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G., 38 BUFF. L. REV. 1 (1990) (discussing the author's failure to translate her client's story properly). These scholars' descriptions of play and lawyer-client translation are simply a more poetic manner of discussing the attorney-client battle of wills.
183. Margulies, supra note 22, at 695.
184. López explains that oppositional scholars find it difficult to believe "in the ingrained virtue and insight of all poor people - especially poor people of color." López, supra note 73, at 317-18. López himself characterizes client contact as a "pain dragging" experience that can be "hard and sometimes downright scary." Id. at 321.
185. See id. at 318-19. Charles Ogletree also argues that attorneys should become invested in the communities they serve. See Ogletree, supra note 19, at 1291-92. Interestingly, a white middle-class student attempting to implement Ogletree's advocacy model with his black impoverished clients rejected the model because he found his clients' moral calculuses alien and self-defeating. See Robert Rader, Confessions of Guilt: A Clinic Student's Reflections on Representing Indigent Criminal Defendants, 1 CLINICAL L. REV. 299 (1994).
186. See id. at 318-19. Charles Ogletree also argues that attorneys should become invested in the communities they serve. See Ogletree, supra note 19, at 1291-92. Interestingly, a white middle-class student attempting to implement Ogletree's advocacy model with his black impoverished clients rejected the model because he found his clients' moral calculuses alien and self-defeating. See Robert Rader, Confessions of Guilt: A Clinic Student's Reflections on Representing Indigent Criminal Defendants, 1 CLINICAL L. REV. 299 (1994).
187. See, e.g., Delgado, supra note 22, at 68 n.25 (cataloguing feminist and CLS calls for empathy); Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds, 87 MICH. L. REV. 2099, 2106 (1989) (explaining that CLS and feminist scholars' failure to define empathy in their work has led them to place unwarranted emphasis on the concept).
188. See, e.g., Delgado, supra note 22, at 68 n.25 (cataloguing feminist and CLS calls for empathy); Toni M. Massaro, Empathy, Legal Storytelling, and the Rule of Law: New Words, Old Wounds, 87 MICH. L. REV. 2099, 2106 (1989) (explaining that CLS and feminist scholars' failure to define empathy in their work has led them to place unwarranted emphasis on the concept).
189. Toni Massaro argues that only after we are conscious of "the lines of our personal empathic limitations may we develop more realistic . . . proposals that better account for people's predisposition not to see beyond their own concerns." Massaro, supra note 157, at 2123.
190. See Delgado, supra note 22, at 70. Delgado argues that "[r]eal empathy" is rarely required in oppositional ethics models. Id. at 75. Instead, because many progressive lawyers see their clients' experiences as radically alien, they inevitably employ a colonizing, imperial version of empathic relation. Delgado warns that "[t]he most unsympathetic thing [white middle-class lawyers] can do is think [they] have empathy with those of a radically different background. [They] can easily end up hurting [their clients]." Id. at 72.
191. López, supra note 73, at 319 (describing progressive scholars' resistance to emotional connection with poor clients of color). The term "Other" is explained by Edward Said. See EDWARD W. SAID, ORIENTALISM 325-26 (1978) (explaining how Western culture constructs persons of less favored race, gender, and class status as foreign, threatening subjects).
192. See, e.g., Alfieri, supra note 32, at 2129 (describing the inherent limitations of empathic connection and suggesting other strategies that can empower clients).
193. Not all scholars are convinced that lawyers can abandon this function. David Wilkins makes an ambivalent argument for the construct, explaining that the legal system is not "entitled to survive regardless of its social utility," although the lawyer must maintain her commitment to the law and help the client find an established cause of action to address her injuries. Wilkins, supra note 61, at 468 n.21. Alfieri suggests that lawyers view the system's codification of values "with suspicion." Alfieri, supra note 32, at 2134. It is unclear, however, what a suspicious lawyer should do when the law harms her client.
194. See Gerald P. López, The Work We Know So Little About, 42 STAN. L. REV. 1, 10 (1989).
195. See id. at 9.
196. See id. (pointing out lawyers' multiple roles); Lucie E. White, To Learn and Teach: Lessons on Driefontein on Lawyering and Power, 1988 WIS. L. REV. 699, 724 (describing the lawyer as a political organizer).
197. López argues that he can distinguish between "the who are with us and those who are not." López, supra note 73, at 323. He posits that anyone who refuses to engage in community dialogue is not a rebellious lawyer. See id.
198. See White, supra note 23, at 854.
199. See, e.g., David R. Esquivel, The Identity Crisis in Public Interests Law, 46 DUKE L.J. 327, 330 (1996) (arguing against a hired-gun conception of lawyering because it does not give poverty lawyers sufficient justifications for their work); Wilkins, supra note 3, at 2022 (arguing that his ethics model allows "black corporate lawyers space to pursue their obligations to the black community free from professional criticism").
200. Cf. Brown, supra note 22, at 530 (arguing that CRT accounts of racism would be improved by taking into account traditional scholarship on racism).
201. See THOMAS NEMETH, GRAMSCI'S PHILOSOPHY: A CRITICAL STUDY 17 (1980).
202. Cf. Alfieri, Impoverished Practices, supra note 151, at 2694 (expressing ambivalence about the success of lawyer translation); White, supra note 23, at 854.
203. Catherine Hall warns that identity construction is often based on the idea that "I know who I am [because] I know how and why I have power over you." Catherine Hall, Missionary Stories: Gender and Ethnicity in England in the 1830s and 1840s, in CULTURAL STUDIES 240, 241 (Lawrence Grossberg et al. eds., 1992).
204. Ideology does not wholly manufacture issues, but rather it translates amorphous concerns into concrete problems. See EAGLETON, supra note 36, at 14-15. The ideology of domination simply articulates lawyer concerns in ways that assist in maintaining our country's classist social order.
205. See supra text accompanying notes 33-35.
206. Law school teaches one how to analogize between different scenarios, to ferret out flaws in seemingly logical arguments, and to instrumentalize general values. Since legal education focuses more on these issues, rather than on substantive issues in morality, a lawyer is better qualified to serve as a moral facilitator than as a moral judge.
207. Sarat & Felstiner, supra note 15, at 405.
208. Id.
209. Id. (internal quotation marks omitted).
210. See infra Section IV.D for a more detailed discussion of the ethical mirror model in the context of different types of practice.
211. See supra text accompanying note 35.
212. Admittedly, the strategies enumerated above reflect an idealistic notion of advocacy. The attorney may not have the resources to adopt aggressive strategies in every case. She is also required to tell the client that the legal system will often ignore the pleas of people who try to challenge a law. Most importantly, the client may decide that she does not have the emotional stamina, time, or resources to launch a frontal attack on the legal rules. Since the ethical mirror model is premised on the idea of client autonomy, the attorney should defer to the client's decision about whether to engage in aggressive or conservative legal strategy.
213. When the client requests a conservative case strategy, the attorney still may connect her client with grassroots lobbying organizations and impact litigation groups. Cf. López, supra note 20, at 1610 (criticizing regnant or traditional models of Lawyering for failing to make connections with grassroots organizations). These groups can help clients find ways to transform hostility toward the law into strategies that pose less personal risk and, because the groups have few procedural rules, clients can express their experiences more authentically than in traditional litigation contexts.
214. See, e.g., id. at 1716 (describing the commitment in the new advocacy literature to the slow learning that comes from multiple, partial perspectives); White, supra note 23, at 854 (same).
215. See López, supra note 20, 1606, 1716 (arguing that lawyers, like all people, have incomplete partial knowledge, and that they must "collaborate," "resolve," and "accommodate" differences in perspectives in an "open ended interaction" to gain new insights); cf. White, supra note 23, at 855 (describing theory as an ongoing practice of reflection and conversation).
216. Thanks to Professor Dennis Curtis for pushing me on this point.
217. An attorney can either require the client to be bound by a given moral framework for a set time period or require the client to engage in extensive dialogue about the client's decision before the lawyer shifts models.
218. I thank Professor David Wilkins for offering this counterargument.
219. Ms. Scott's DCF case file indicated that she was "mentally fragile," but it made no special provisions for mental health treatment. Over the course of my representation of her, several drug treatment programs expelled her because they perceived that she was mentally ill. For a discussion of this problem, see Christina Victoria Tusan, Homeless Families from 1980-1996: Casualties of Declining Support for the War on Poverty, 70 S. CAL. L. REV. 1141, 1224-25 (1997).
220. An attorney may also discuss how a client's choices will affect the legal system. Because Ms. Scott felt the state had betrayed her, however, it seemed inapproapriate to voice this concern.
221. Fried explains that models based on single-person representation can be extended to understand corporate clients. In his view, "corporations and other institutions are only formal arrangements of real persons pursuing their real interests. If the law entitles real persons to pursue their interests in these complex forms, then why are they not entitled to loyal legal assistance . . . ." Fried, supra note 1, at 1076. Additionally, I would add, if these groups are allowed to act autonomously, they should be required to articulate a cohesive moral vision as well.
222. But see E. Michelle Rabouin, Walking the Talk: Transforming Law Students into Ethical Transactional Lawyers, 9 DEPAUL BUS. L.J. 1, 3 (1996). Some scholars argue that businesses themselves are looking to attorneys for ethical guidance, claiming that the notion that the firm is simply an organization created to serve profit interests of shareholders without breaking the law has become passé. See id. at 29.
223. See, e.g., Michael Goldsmith & Chad W. King, Policing Corporate Crime Data: The Dilemma of Internal Compliance Programs, 50 VAND. L. REV. 1, 1-2 (1997) (discussing the costs and benefits of internal compliance programs).
224. See Rabouin, supra note 191, at 30.
225. See id.
226. But see id. at 26 (arguing that corporations contain several constituencies, including corporate officers and stakeholders).
227. Id.
228. Since many of the corporate codes and internal compliance materials are subject to public review, companies already have a vested interest in ensuring that their moral statements of purpose will withstand scrutiny.
229. A great number of ethics discussions simply address which of the dominant ethics models is the best. See, e.g., Robert J. Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role, 51 MD. L. REV. 1 (1992); John M.A. DiPippa, Jacob's Blessing: A Review of Shaffer and Cochran's Model of Moral Counseling, 18 U. ARK. LITTLE ROCK L.J. 85 (1995); Sammons, supra note 16; Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, 18 U. ARK. LITTLE ROCK L.J. 69 (1995).
230. A great number of ethics discussions simply address which of the dominant ethics models is the best. See, e.g., Robert J. Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role, 51 MD. L. REV. 1 (1992); John M.A. DiPippa, Jacob's Blessing: A Review of Shaffer and Cochran's Model of Moral Counseling, 18 U. ARK. LITTLE ROCK L.J. 85 (1995); Sammons, supra note 16; Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, 18 U. ARK. LITTLE ROCK L.J. 69 (1995).
231. A great number of ethics discussions simply address which of the dominant ethics models is the best. See, e.g., Robert J. Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role, 51 MD. L. REV. 1 (1992); John M.A. DiPippa, Jacob's Blessing: A Review of Shaffer and Cochran's Model of Moral Counseling, 18 U. ARK. LITTLE ROCK L.J. 85 (1995); Sammons, supra note 16; Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, 18 U. ARK. LITTLE ROCK L.J. 69 (1995).
232. A great number of ethics discussions simply address which of the dominant ethics models is the best. See, e.g., Robert J. Condlin, Bargaining in the Dark: The Normative Incoherence of Lawyer Dispute Bargaining Role, 51 MD. L. REV. 1 (1992); John M.A. DiPippa, Jacob's Blessing: A Review of Shaffer and Cochran's Model of Moral Counseling, 18 U. ARK. LITTLE ROCK L.J. 85 (1995); Sammons, supra note 16; Thomas L. Shaffer & Robert F. Cochran, Jr., Lawyers as Strangers and Friends: A Reply to Professor Sammons, 18 U. ARK. LITTLE ROCK L.J. 69 (1995).
233. See NEMETH, supra note 170, at 15 (summarizing Gramsci's views).
234. See id. The political effect of traditional ethics scholarship is that the seemingly innocent directive allowing lawyers to import their moral codes into client representation ends up disempowering persons from groups that are not well represented in the lawyering field.
235. But see Tremblay, supra note 10, at 42 (arguing that any of the activist moral stances suggested to lawyers will tend to interfere with clients' instrumental legal goals).