Youth perspectives on lawyers' ethics: A report on seven interviews

Fordham Law Review

Volumn 64, Issue 4, 1996, Pages 1763-1782

  Chaplan, Janet A ^a,b,c,d,e  

^a YALE UNIVERSITY   (United States)

^b TEMPLE UNIVERSITY   (United States)

^c Law Offices of James M Abramson   (United States)

^d AMERICAN BAR ASSOCIATION   (United States)

^e Lawyers for Cildren Inc

Author keywords

[No Author keywords available]

Indexed keywords

EID: 1842525712     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (37)

1. Model Rules of Professional Conduct Rule 1.4 cmt. (1983).
2. See generally Charles W. Wolfram, Modern Legal Ethics (1986) (studying ethics in the legal profession).
3. See, e.g., Gerald P. López, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992) (discussing lawyering for social change); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2119-21 (1991) (suggesting that traditional poverty law practice needs to be updated); Phyllis Goldfarb, Beyond Cut Flowers: Developing a Clinical Perspective on Critical Legal Theory, 43 Hastings L.J. 717 (1992) (relating clinical and critical legal theories).
4. See, e.g., Gerald P. López, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992) (discussing lawyering for social change); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2119-21 (1991) (suggesting that traditional poverty law practice needs to be updated); Phyllis Goldfarb, Beyond Cut Flowers: Developing a Clinical Perspective on Critical Legal Theory, 43 Hastings L.J. 717 (1992) (relating clinical and critical legal theories).
5. See, e.g., Gerald P. López, Rebellious Lawyering: One Chicano's Vision of Progressive Law Practice (1992) (discussing lawyering for social change); Anthony V. Alfieri, Reconstructive Poverty Law Practice: Learning Lessons of Client Narrative, 100 Yale L.J. 2107, 2119-21 (1991) (suggesting that traditional poverty law practice needs to be updated); Phyllis Goldfarb, Beyond Cut Flowers: Developing a Clinical Perspective on Critical Legal Theory, 43 Hastings L.J. 717 (1992) (relating clinical and critical legal theories).
6. See, e.g., Anthony V. Alfieri, Disabled Clients, Disabling Lawyers, 43 Hastings L.J. 769, 772-74 (1992) (discussing theoretical perspectives for representing disenfranchised clients); Marie Ashe, "Bad Mothers," "Good Lawyers," and "Legal Ethics," 81 Geo. L.J. 2533, 2533-36 (1993) (discussing legal ethics in representing bad parents); Gerald P. López, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 Geo. L.J. 1603 (1989) (contending that the study of civil rights litigation requires renewed attention).
7. See, e.g., Anthony V. Alfieri, Disabled Clients, Disabling Lawyers, 43 Hastings L.J. 769, 772-74 (1992) (discussing theoretical perspectives for representing disenfranchised clients); Marie Ashe, "Bad Mothers," "Good Lawyers," and "Legal Ethics," 81 Geo. L.J. 2533, 2533-36 (1993) (discussing legal ethics in representing bad parents); Gerald P. López, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 Geo. L.J. 1603 (1989) (contending that the study of civil rights litigation requires renewed attention).
8. See, e.g., Anthony V. Alfieri, Disabled Clients, Disabling Lawyers, 43 Hastings L.J. 769, 772-74 (1992) (discussing theoretical perspectives for representing disenfranchised clients); Marie Ashe, "Bad Mothers," "Good Lawyers," and "Legal Ethics," 81 Geo. L.J. 2533, 2533-36 (1993) (discussing legal ethics in representing bad parents); Gerald P. López, Reconceiving Civil Rights Practice: Seven Weeks in the Life of a Rebellious Collaboration, 77 Geo. L.J. 1603 (1989) (contending that the study of civil rights litigation requires renewed attention).
9. For a thorough discussion of the centrality of the client's voice in effective representation of disempowered clients, see López, supra note 3, at 63-64.
10. Anthony E. Cook, Foreword: Towards a Postmodern Ethics of Service, 81 Geo. L.J. 2457, 2458 (defining postmodern ethics as "that sphere of rich interaction between Self and Other")
11. Id. at 2473. Cook states: [T]he ethical duty of the postmodern public interest lawyer is one of service to the Other. The ethical duty requires a willingness to meet the oppressed where they are and to empty oneself of Self in preparation for serving the Other. The hope is that in the ethical encounter of Self and Other, given such critical emptying, the stories and experiences of the latter will be given a certain affirmation and credence they normally lack as marginalized narratives within a dominant discourse. I have called this orientation an "Ethic of Service" to "the least of these," one capable of infecting all relationships if permitted. As suggested earlier, an orientation to serve the least of these provides some answers to the pressing questions of whose story should be told and how it should be told. The ethic assumes a degree of foundationalism and normativity, but any transformative ethic must so assume. What marks this postmodern ethics off from many other ethical approaches is that it remains rooted, even at the level of articulating and applying norms, to a narrative tradition in which the experiences of the Other inform and shape the norms in the particularities of context. Id.
12. Id. at 2473. Cook states: [T]he ethical duty of the postmodern public interest lawyer is one of service to the Other. The ethical duty requires a willingness to meet the oppressed where they are and to empty oneself of Self in preparation for serving the Other. The hope is that in the ethical encounter of Self and Other, given such critical emptying, the stories and experiences of the latter will be given a certain affirmation and credence they normally lack as marginalized narratives within a dominant discourse. I have called this orientation an "Ethic of Service" to "the least of these," one capable of infecting all relationships if permitted. As suggested earlier, an orientation to serve the least of these provides some answers to the pressing questions of whose story should be told and how it should be told. The ethic assumes a degree of foundationalism and normativity, but any transformative ethic must so assume. What marks this postmodern ethics off from many other ethical approaches is that it remains rooted, even at the level of articulating and applying norms, to a narrative tradition in which the experiences of the Other inform and shape the norms in the particularities of context. Id.
13. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665, 2693-2712 (1993) (describing how a caring lawyer should represent her clients); see also Cook, supra note 6, at 2471 (commenting on Ellmann). Cook comments: It is possible that Ellman's approach is the most for which a postmodern ethic can hope. Its normativity is fluid rather than fixed, and contextual rather than transcendent. It requires the ethicist to grapple not with abstract precepts and norms but with the lived experiences of those affected by the decision. Thus, personal factors of self-care may outweigh the concerns of care for others when thrown into the balance. Each situation is different, each balancing different, and each decision must ultimately rest on its own ethical bottom. The ethic of care can guide and inspire, but it cannot determine or command. Id.
14. See Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665, 2693-2712 (1993) (describing how a caring lawyer should represent her clients); see also Cook, supra note 6, at 2471 (commenting on Ellmann). Cook comments: It is possible that Ellman's approach is the most for which a postmodern ethic can hope. Its normativity is fluid rather than fixed, and contextual rather than transcendent. It requires the ethicist to grapple not with abstract precepts and norms but with the lived experiences of those affected by the decision. Thus, personal factors of self-care may outweigh the concerns of care for others when thrown into the balance. Each situation is different, each balancing different, and each decision must ultimately rest on its own ethical bottom. The ethic of care can guide and inspire, but it cannot determine or command. Id.
15. See Cook, supra note 3, at 2473. Cook notes: What marks this postmodern ethics off from many other ethical approaches is that it remains rooted, even at the level of articulating and applying norms, to a narrative tradition in which the experiences of the Other inform and shape the norms in the particularities of context. This ethics thus resists the dangers of abstraction that are endemic to normative ethical structures and even some empirical ones that, like utilitarianism or law and economics, distort experience by pigeon-holing it into some formalistic calculus of what people are thought to desire. Id.
16. I am not the first to look for a closer relationship with clients. See, e.g., Goldfarb, supra note 3, at 717-21 (proposing that critical legal theory would overcome many of the obstacles it faces if it was connected to clinical legal education and the contextuality and real life issues of practice inherent in clinical programs); López, supra, note 3, at 44-56 (advocating partnerships between clients and their attorneys); Lucie White, Paradox, Piece-Work, and Patience, 43 Hastings L.J. 853, 859 (1992). Professor White states: Professor Alfieri's essay [Alfieri, supra note 3] teaches the powerful lesson that we lawyers cannot "empower" impoverished communities by fitting clients into our own strategic or theoretical schemes. Rather, we must ally with embattled communities and seek ways to support people's efforts to empower themselves. Yet the essay also enacts the lesson it purports to teach. It shows that, in their impatience to theorize their own practice, lawyer-theorists like Professor Alfieri risk usurping from poor people and their advocates the power to name the very forms of violence that pose the most formidable barriers to their empowerment. Id.
17. I am not the first to look for a closer relationship with clients. See, e.g., Goldfarb, supra note 3, at 717-21 (proposing that critical legal theory would overcome many of the obstacles it faces if it was connected to clinical legal education and the contextuality and real life issues of practice inherent in clinical programs); López, supra, note 3, at 44-56 (advocating partnerships between clients and their attorneys); Lucie White, Paradox, Piece-Work, and Patience, 43 Hastings L.J. 853, 859 (1992). Professor White states: Professor Alfieri's essay [Alfieri, supra note 3] teaches the powerful lesson that we lawyers cannot "empower" impoverished communities by fitting clients into our own strategic or theoretical schemes. Rather, we must ally with embattled communities and seek ways to support people's efforts to empower themselves. Yet the essay also enacts the lesson it purports to teach. It shows that, in their impatience to theorize their own practice, lawyer-theorists like Professor Alfieri risk usurping from poor people and their advocates the power to name the very forms of violence that pose the most formidable barriers to their empowerment. Id.
18. N.Y. Jud. Law (Family Court Act) § 249 (McKinney 1983 & Supp. 1996); see also Jerome E. v. Commissioner of Social Servs., 593 N.Y.S.2d 205, 209 (App. Div. 1993) (stating that court has discretion to appoint a law guardian in surrender proceeding).
19. N.Y. Jud. Law (Family Court Act) § 1055 (McKinney 1983 & Supp. 1996); N.Y. Soc. Serv. Law § 392 (McKinney 1992 & Supp. 1996).
20. See N.Y. Jud. Law (Family Court Act) § 249 cmt. (McKinney Supp. 1996) ("Law Guardians are appointed to protect the interests of the children they represent."). The Legal Aid Society, which trains most law guardians in New York City, instructs attorneys to counsel their clients carefully and to advocate for their wishes.
21. This point of view is López's starling point and the basis for his seeking better partnerships between attorneys and clients. López, supra note 3, at 1-10.
22. See López, supra note 3, at 23-28.
23. Interview with "Jonah," in New York, N.Y. (Aug. 7, 1995). I have changed each of the names of the interviewees, with their consent, to protect their privacy.
24. Interview with "Curtis," in New York, N.Y. (Oct. 15, 1995).
25. Interview with "Sandra," in New York, N.Y. (Aug. 8, 1995).
26. Interview with "Neil," in New York, N.Y. (Sept. 7, 1995).
27. Interview with "Julio," in New York, N.Y. (Sept. 7, 1995).
28. Interview with "Raymond," in New York, N.Y. (Sept. 7, 1995).
29. N.Y. Soc. Serv. Law § 392 (McKinney 1992 & Supp. 1996).
30. Id.
31. N.Y. Jud. Law (Family Court Act) § 1055 (McKinney 1992 & Supp. 1996).
32. N.Y. Jud. Law (Family Court Act) § 249 (McKinney 1983 & Supp. 1996).
33. See, e.g., In re Audrey "PP," 535 N.Y.S.2d 136, 136-37 (App. Div. 1988) (finding the appointment of a law guardian to be "essential").
34. In re Tyriek W., 652 N.E.2d 168, 171 (N.Y. 1995).
35. Interview with "Bruce," in New York, N.Y. (Oct. 13, 1995).
36. Curtis never had a conflict issue in his case, but he came up with the hypothetical that if he had the same lawyer as someone he had a fight with in a group home, he would be concerned about proper representation.
37. See Palmer v. Cuomo, 503 N.Y.S.2d 20, 22 (App. Div. 1986) (requiring foster care providers to offer training for independent living, and enjoining the providers from discharging youths prior to the age of 21).