Selinger, Carl M.

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Volume 88 Issue 4 Article 5 June 1986 The Ethics of Dissent and Friendship--A Response to Professor Shaffer Carl M. Selinger West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Legal Ethics and Professional Responsibility Commons, and the Legal Profession Commons Recommended Citation Carl M. Selinger, The Ethics of Dissent and Friendship--A Response to Professor Shaffer, 88 W. Va. L. Rev. (1986). Available at: https://researchrepository.wvu.edu/wvlr/vol88/iss4/5 This Article is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LA W REVIEWG. MEILAENDER, FRIENDSHIP (1981); G. MEILAENDER, THE THEORY AND PRAC-TICE OF VIRTUE (1984).Nemethy, Country Doctor, VERMONT LIFE, 50 (Winter 1984).M. NOVAK, IN PRAISE OF CYNICISM (OR) WHEN THE SAINTS Go MARCHING OUT(Poynter Center, Indiana University, 1977), Novak, Catholics and Power, NOTREDAME MAG. 12 (Feb. 1980) excerpted in A.L.E. at 584-97.T. PERCIVAL, MEDICAL ETHICS (1803), in C. D. LEAKE, PERCIVAL'S MEDICALETHICS (1975).Sharswood, An Essay on Professional Ethics (1854), in 32 REPORTS OF THEAMERICAN BAR ASSOCIATION (1907).Sommers, Ethics Without Virtue: Moral Education in America, 1984 AM.SCHOLAR 381.P. TILLICH, SYSTEMATIC THEOLOGY (1943).A. TRAIN, YANKEE LAWYER: THE AUTOBIOGRAPHY OF EPHRAIM TuTT (1943);Train, Book Review, 52 YALE L. J. 945 (1943).Trillin, Making Adjustments, NEW YORKER, 50 (May 28, 1984).Updike, Personal History: At War with My Skin," NEW YORKER, 39 (Sept.2, 1985).A. VORSPAN, GIANTS OF JUSTICE (1960)."THE ETHICS OF DISSENT AND FRIENDSHIP"-ARESPONSE TO PROFESSOR SHAFFERCARL M. SELINGER*Tom Shaffer is, to my knowledge, the first legal scholar to assess the significancefor the practice of law of real friendships, not just metaphorical ones, betweenlawyers and their clients.' But notwithstanding his interesting stories and his pioneer-ing and worthwhile analysis, I would suggest that such friendships are probablyless common in fact and more problematic as an ideal for lawyer-client relationsthan Shaffer would have us believe.* Dean and Professor of Law, West Virginia University College of Law.A precursor to his present article, Shaffer, The Ethics of Dissent and Friendship in the AmericanProfessions, is Shaffer, 88 W. VA. L. REv. (1986). Christian Theories of Professional Responsibility,48 S. CAL. L. Ray. 721, 725-27 (1975). The metaphor of friendship for lawyer-client relations is developedin Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J.1060 (1976).[Vol. 881Selinger: The Ethics of Dissent and Friendship--A Response to Professor ShaDisseminated by The Research Repository @ WVU, 1986RESPONSEConsider first the likelihood of friendships developing.Midway through his article, Shaffer criticizes the "individualistic, liberal-democratic, republican" view of professional relations for treating both profes-sionals and their clients or patients as "fungible." 2 However, Shaffer himself failsto acknowledge relevant and significant differences among lawyers. An importantsociological study of "role orientations" in the legal profession found that onlysome lawyers are "people-oriented," in that they obtain professional satisfactionmainly from feeling that they have helped clients as individuals; other lawyers aremore oriented to solving problems ("trial lawyers," "technicians," "businessorganizers") or making money.'Similarly, a major psychological study of first-year law students, employinga widely used instrument based on the work of Carl Jung, revealed that a per-sonality type that is "characterized as one who is concerned chiefly with people,who values harmonious human contacts, [and] is friendly, tactful, sympathetic,and loyal" is significantly underrepresented among law students as compared, forexample, with liberal arts undergraduates.' Some people are much more inclinedtoward friendship than others, and that seems to hold true among individual lawyersand, one would assume, individual clients.There are also factors built into many lawyer-client relationships that are likelyto inhibit the formation of friendships. First, in the field of criminal defense, thereis the problem of the client's character. A sociologist's well-regarded analysis ofcriminal lawyers' work concluded that,Since he usually has been guilty of some crime (some previous crime, if notthe one with which he is currently charged), the client of the criminal lawyer istypically an unreliable, dishonest person. Consequently, the status difference be-tween attorney and client is disparate, taxing to the limit even the professionallydefined relationship that is designed to ameliorate this problem.Second, there can be a feeling on the part of some clients who are involvedpersonally in legal disputes that having to employ a lawyer is just another aspectof the same human injustice that the lawyer is supposed to rectify. That physiciansare more likely to be perceived by their patients as allies may have something todo with a tendency to ascribe divine or deterministic origins to even medical prob-lems with such calculable human causes as automobile accidents.And third, the separation that can occur in a lawyer-client relationship betweentaking actions (the lawyer's job), on one hand, and being satisfied that there are2 Shaffer, THE E'Hics OF DISSENT AND FRIENDSHIP IN THE AMERICAN PROFESSIONS, 88 W. VA.L. REV. 623, 654 (1986).H. O'GORMAN, LAWYERS AND MATRIMONIAL CASES 120-32 (1963).Miller, Personality Differences and Student Survival in Law School, 19 J. LEGAL ED. 460,466 (1967).1 A. WOOD, CRIMINAL LAWYER 250 (1967).1986]2West Virginia Law Review, Vol. 88, Iss. 4 [1986], Art. 5https://researchrepository.wvu.edu/wvlr/vol88/iss4/5WEST VIRGINIA LA W REVIEWadequate moral justifications for those actions (the client's responsibility) may leadto real tensions and suspicions. Some lawyers will resent being required to act inways that injure third persons in circumstances in which the harms seem unjustifiedto the lawyer and perhaps also to others in the community.Meanwhile, some clients will be rather hesitant even to trust, much less like,an attorney who shows few compunctions about harming third persons. An analogyby Professors Dauer and Leff is interesting in this regard:[Y]ou don't need to love your hammer, for lovability is not its essence; its aret6is to hit, and hit well, and most important, to hit not oneself, but what you wantto hit. A hammer that is perfectly willing to hit you, and would, but for the factthat you have bought it and thine enemy has not, may be used, but that is noreason at all to lavish love on it. 6Shaffer clearly does not expect every transaction between an attorney and clientto evolve into friendship, but he does appear to treat friendship as an ideal forlawyer-client relations. And here, too, I have some reservations.Along with many other contemporary critics of the professions, Shaffer ad-vocates a "participatory" or "partnership" model of relations between professionalsand their clients or patients: in the case of lawyers, "the client should ... participatein decisions on negotiation and trial strategy, choose witnesses, be given a secondprofessional opinion if he wants one, help set the fee, help decide what the lawyeris to say to the world outside the law office." 7 That's very well, it seems to me,if the client wants to be a partner in making such decisions, and the option shouldbe open to him or her without having to search interminably for a lawyer whowill say something more than, "Just leave it to me."But what of the client or patient who has consulted a professional preciselybecause he or she wants to stop worrying about his or her legal or health problems-what of the person who wants to turn them over, lock, stock, and barrel, to adoctor or lawyer? Why should that alternative not also be available to a client,without constantly having to overcome even the well-intentioned desires of profes-sionals for partners or friends who will continue to be responsible in the main fortheir own legal or medical welfare?This point can be put still more strongly. Shaffer says that a client's friend-ship, interest in the lawyer's activities for the client, and ongoing willingness to"contribute to the common effort" make the practice of law more stimulating andmake it seem more worthwhile." But this kind of client involvement can also becomesomething of a "pain in the neck" to a lawyer-perhaps because of the lawyer'sown personality, which we'll return to presently, but perhaps also because the lawyer' DAUBR & LEFF, Correspondence: The Lawyer as Friend, 86 YALE L. J. 573, 582 n.38 (1977).' Shaffer, supra note 2, at 663.1 Id. at 651-52.[Vol. 883Selinger: The Ethics of Dissent and Friendship--A Response to Professor ShaDisseminated by The Research Repository @ WVU, 1986RESPONSEsenses accurately a certain unhealthy obsessiveness on the part of the client abouthis or her legal problems. A client with such tendencies needs to be more realisticwith regard to what can and cannot be expected from legal services and the legalsystem, and get on about his or her other business; he or she does not need anemotionally fascinating attorney-client relationship.In fact, a client's greatest need may not be for a friendly lawyer at all, butrather for a lawyer whose role orientation or personality type makes him or herparticularly adept at office or courtroom problem-solving, business organizing,logical thinking, or imaginative reasoning. Are we to understand Shaffer's remarkthat, "Most doctors are not interested in attending funerals for their dead patients;Ann Landers says they shouldn't be expected to," 9 as an invitation to those whoare not terribly sympathetic, and don't want to fake it, to pursue another line ofwork?The legal profession as a whole provides, to my mind, suitable employmentfor persons with all manner of role orientations and personalities, and one of theprincipal obligations of legal education is to help each student to understand howhis or her own strengths and weaknesses relate to the great variety of jasks thatlawyers perform. I hope that Shaffer means by his reference to funerals only thatfriendship can be extremely valuable in certain kinds of practice and that no lawyershould be deterred from expressing genuinely felt affection, or grief, by some kindof artificial "code" of professional detachment.Still, I think that Shaffer is too rough on the notion of lawyers' detachment,when he treats it as principally a device through which establishment lawyers havemanaged both to fool themselves into believing that they are not furthering theinterests of their friends'" at the expense of others, and to make ethnic lawyersfeel guilty about being emotionally committed to the representation of people intheir communities."It seems to me that the ideas that a lawyer can divide his or her professionallife from his or her private life, that he or she is not obligated "to adopt a personalviewpoint favorable to the interests or desires of his client,"' 2 that his or her represen-tation of a client "does not constitute an endorsement of the client's political,economic, social or moral views or activities,' ' 3 and that, "when a lawyer pur-ports to act on behalf of the public, he should espouse only those [legislative oradministrative] changes which he conscientiously believes to be in the publicinterest"' 4 are ideas that at different times in the past have helped to obtain effec-Id. at 662.° Id. at 643.Id. at 636." MODEL CODE OF PROFESSIONAL RESPONSIBILITY [EC] 7-17 (1969)." MODEL RULES OF PROFESSIONAL CONDUCT Rule 1.2(b) (1982)." MODEL CODE OF PROFESSIONAL CONDUCT EC 8-4 (1969).198614West Virginia Law Review, Vol. 88, Iss. 4 [1986], Art. 5https://researchrepository.wvu.edu/wvlr/vol88/iss4/5WEST VIRGINIA LA W REVIEWtive legal representation for the unpopular clients and causes, and for minorities,"and have been conducive to more informed public decision-making. 6The notion of lawyers' detachment, in the sense of professional independence,is, I believe, a much more fragile ideal than those of friendship and communalsolidarity, and one that is much more in need of nurturing, in the interests of societyas a whole.A COMMENT FOR TOM SHAFFER:THE ETHICS OF RACE, THE ETHICS OF CORRUPTIONJAMEs J. FRIEDBERG*Tom Shaffer does more than describe dissent. He endorses it. We know thisby the commentary that he interweaves with his narrative of the dissenting lawyers,Fanny Holtzman and Jerry Kennedy. We know this still more by the approving,even affectionate language with which he portrays these two lawyers. Sincerely af-fectionate, although one of the two is a total stranger to him and the other is evenless-a creation of fiction. He endorses their dissent and he endorses their alter-native ethic, as he sees it: that of the "immigrant" lawyer.It is difficult for me to reject the lessons of Tom's homilies. Not only didI intellectually share his regard for the values of community and friendship (whichare, as he implies, insufficiently influential in our profession and our society), butI also feel a visceral, ethnic harmony with his theme of the salutary effects of theimmigrant community, of the importance of "going home". I grew up in thatCatholic/Jewish cultural millieu of which Tom writes. It shaped my values regard-ing friends and decency. It also nurtured my intuitive skepticism regarding author-ity. When I first heard Tom speak of "gentle cynicism", I immediately understoodwhat he meant, although I might not have been able to articulate it immediately.Understanding what Tom means is made easier by the fact that he is not alienated" See generally V. COUNTRYMAN, T. FINMAN & T. SCHNEYER, THE LAWYER IN MODERN SOCIETY638-53 (2d ed. 1976).6 The 1981 Proposed Final Draft of Model Rule 6.4 would have prohibited a lawyer from par-ticipating in a decision of a law reform organization that "could have a direct material effect" ona client. However, as such a prohibition would have prevented organizations seeking reform in specializedfields like antitrust, tax, and securities law from taking advantage of the expertise of most practitionersin those fields, the final version of the rule only requires that a lawyer disclose that a client mightbe materially benefitted. PROPOSED MODEL RULES Rule 6.4 (1981).* Associate Professor of Law, West Virginia University College of Law.[Vol. 885Selinger: The Ethics of Dissent and Friendship--A Response to Professor ShaDisseminated by The Research Repository @ WVU, 1986

The Ethics of Dissent and Friendship--A Response to Professor Shaffer

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The Ethics of Dissent and Friendship--A Response to Professor Shaffer

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