Over the past three years, I have used my messages in Law Quadrangle Notes to comment on various qualities that I associate with an outstanding attorney. I have noted the great lawyer’s commitments to intellectual growth and renewal, integrity, and teaching others about the law. During the coming year, I will explore a different theme: that of the great lawyer as citizen.
In approaching this theme, I am using the word “citizen” in a slightly idiosyncratic way. I am using it to invoke some of the special aspects of a lawyer’s life that derive from membership in a community that extends beyond family. Membership often carries well-known privileges (such as the franchise, employment opportunities, or material support). In this discussion, however, I would like to pay special attention to a more complex privilege: the privilege of bearing the responsibilities of citizenship.
In his classic little book, The Needs of Strangers, Michael Ignatieff accurately observed that our ordinary language feels frustratingly weak whenever we try to talk about such topics. “Words like fraternity, belonging, and community are so soaked with nostalgia and utopianism that they are nearly useless as guides to the real possibilities of solidarity in modern society.” Yet we all know that, even in modern society, those words point towards an underlying truth: we can and do take a special pleasure in our solidarity with others, with feeling personally responsible for other individual members of the community and for the community as a whole.
And so, despite the linguistic perils, I would like to suggest two ways in which lawyers seem to have succeeded in linking their professional identities to the satisfactions of responsibility for fellow citizens. One way, which I hope to explore in a future message, leads them, as lawyers, to engage their society outside the context of paying-client representation. The other, the one I want to raise here, expresses itself through the ways these lawyers counsel their paying clients.
I have no doubt that some lawyers experience their relationship with their paying clients as a simple sale of expert and knowledge and services from vendor to customer. Most of us, however, have felt that relationship to be more complex. Over the years, two forms of thoughtful commentary have offered words to describe that impression.
One collection of commentary has clarified our sense of the lawyer-client relationship through the familiar categories of agency and fiduciary obligation. Far more than the arm’s-length vendor of lawnmowing services, the lawyer is expected to be a fiduciary to the client. Even more, we understand that the duty to client exists in tension with a more diffuse set of duties as agent and fiduciary to the larger society.
In recent years, the complexity of the lawyer-client relationship has been further illuminated by a new group of commentators who have thought carefully about the act of giving legal advice. For example, in an article in this issue of Law Quadrangle Notes, Professor James Boyd White describes how a lawyer must “give meaning” to a client’s experience (or proposed activities) within the language and categories of the law. The effort must, at once, respect similar efforts in the past and respond to the particular context of the present. It entails a special set of critical and intellectual challenges, and opportunities as well.
When I think about the best lawyers I have known, these ideas become concrete, and they ring true. Such lawyers have not been uncritical slaves to their clients’ tastes and preferences. Nor have they encouraged their clients to distance themselves from the larger community by speaking of the law as a set of impersonal barriers with no interest in the client’s particular situation. Rather, they have tried to help their clients to understand the law as a point of engagement with their fellow citizens, through which tensions and competitions among goals and perspectives are, and can be, worked through.
At their best, these lawyers have learned to speak in a language with which they are personally comfortable. A language that is responsible to their clients. A language that is responsible to the community as a whole. A language that shows solidarity with the other individual members of that community. I believe that we should be grateful for a profession that calls upon us to struggle daily to find such a language. For it is an echo of the challenge identified by Ignatieff, and a special opportunity to experience profound satisfaction in our professional lives.
