Document Type

Article

Publication Date

2003

Keywords

attorney-client, lawyer-client, client, friendship, lawyer-as-friend, professional role, virtue, ethics, christian love, clinical practice, adversary advocacy

Abstract

Should lawyers love their clients and try to be their friends? Highly regarded legal scholars have defended the “lawyer-as-friend” analogy in the past, although usually on the basis of a more contractual understanding of friendship than the understanding currently in vogue. These past efforts were widely criticized on a variety of grounds, and after a period of debate, support for the analogy appeared to wane. That is until recently, when other scholars, looking at the topic from a more religious perspective, have asserted a refined version of the friendship analogy as the proper model for lawyer-client relations. It is this rejuvenated love-and-friendship view that I examine in this article, to consider whether, after all these years, there is now good reason to believe that lawyers should be thought of as their clients’ friends. I argue that an adequate conception of lawyer-client relations cannot be grounded in an analogy to intimate personal relationships. Self-conscious attempts by lawyers to behave as friends can come across as insincere (as they often will be, although not malevolently so), condescending, and arrogant. They also can provoke self-demeaning and childlike behavior in response, as clients dutifully try to play out their assigned role as designated beneficiaries of their lawyers’ help. When both types of pretense are combined, lawyer-client conversations often will take on the qualities of an elaborately coded performance in which each side signals its genuine beliefs and wants in unnecessarily convoluted and confusing ways. Interacting in this fashion over a lifetime in law practice can cause lawyers to become cynical about client attitudes and less respectful of client ends. In fact, perhaps the biggest difficulty with the lawyer-as-friend view is that it can cause lawyers to become less friendly over the course of a career. I discuss these issues by examining two generations of scholarly argument for the lawyer-as-friend analogy, and a description of the approach in operation in an actual legal case. Each of these discussions shows what sorts of questions a lawyer-as-friend takes up, how he or she divides or shares authority with clients differently from lawyers who use more traditional approaches to legal representation, and how the personal psychological experience of representing a client as a friend compares with the experience of representing a client as a fiduciary and agent. In the course of the discussion, I compare the idea of legal friendship with representative views of friendship found in western literature and philosophy generally, identify the comparative advantages and disadvantages of the legal friendship model, and conclude by defending a more traditional way of thinking about the relationship between lawyers and clients.

Publication Citation

82 Nebraska Law Review 211 (2003).

Disciplines

Law | Legal Ethics and Professional Responsibility | Legal Profession

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