It may be a quibble over word definitions more than anything else, but it’s still a quibble. At least a quibble. Maybe more.
Scott Greenfield is drawing lines. A lawyer provides “excellent representation”, not love. As if the two are mutually exclusive.
First, the definitional problem may dispose of a disagreement that is apparent only, or at least primarily. If by “love” one means only emotional, squishy and sub-rational or even irrational feelings of affection that obscure reason, then the point can be readily conceded. It would indeed be self-indulgent and wrong for a lawyer to conduct an attorney-client relationship on such a basis, and it would most likely ill-serve the client, certainly to the extent that objectivity and reason are compromised.
But one problem is, this is an impoverished definition. It is a childish conception of love.
To a grown up, love is not about emotions but about the will, the willingness to act. To spend oneself on behalf of another: that is love in the grown up sense.
It should be as obvious that love in the latter sense is not only proper but even required in the attorney client relationship as it is that “love” in the former childish sense is a mistake, even a grave mistake. Spending oneself on behalf of a client is pretty close to the essence of the attorney client relationship. To call that wrong is turning things on their head.
The problem with drawing lines is that you have to know what you are doing, and what your limits are. There was a time not so long ago that it was inconceivable to most educated people that “ethics”, including lawyers’ ethics, could be wholly codified into a set of inflexible rules. Which is not to say that there are no inflexible rules: betraying a client’s trust, stealing money from clients, lying to a court.
There are others, of course.
But none of these captures the entirety of what it means to behave ethically as a lawyer. And the biggest problem with the effort to codify ethics – line drawing at the official level – is that the ethically challenged then conclude that so long as no explicit rule is being explicitly violated they have met their ethical obligations. Ethics becomes a pharisaical, legalistic and formalistic exercise in nitpicking. It becomes the opposite of what it really is.
In one specific context, Scott is discussing visiting clients in the slammer. Unless there is “a reason to do so as his lawyer”, Scott says, he discourages clients from asking by telling them he’ll bill them for it:
Is this cold? Is this heartless? Well, yes, to some extent it is. It’s also what is demanded of us as lawyers. Cold, heartless representation. Warm and fuzzy is better provided by a puppy, but our work has very real consequences. When our decisions, our will to act, is guided by emotional concerns rather than cold, heartless reason, we lose our detachment and allow our feelings to influence our choices. That’s self-indulgent.
This is a false dichotomy, of course. Representation can be “excellent”, sober and rational without being “cold and heartless”. It is no part of a lawyer’s obligation to be “cold and heartless” to his clients or to anyone else. Ironically, this very formulation of the issue is the product of a somewhat irrational and self-indulgent fixation on the “trench lawyer” self image – the tough-guy-pit-bull you just wind up, put on the floor and watch him go attack things. It’s a bit shallow and silly.
But what about it then? Do you go visit your client in the slammer because he wants to see you, and maybe has no one else to talk to or even visiting him? And in criminal defense this situation happens a lot.
And the answer is: you might or you might not. It isn’t dogmatically wrong either way. But it would be quite wrong to characterize a visit to one’s client in the slammer on that ground as being somehow illegitimate, as if it wasn’t a proper reason for a lawyer’s visit. Beyond that, I would certainly not encourage jailers to feel that they are authorized to inquire whether a lawyer’s visit to an inmate is “legitimate” or not; in fact, they should not even presume to have an opinion about it.
Every case is different, and so is every client. A commenter to Scott’s post, Kathleen Casey, tells of her policy regarding talking to clients’ parents.
She appears to draw a very clear line between the clients and the parents and doesn’t take calls from the parents, and that’s fine as far as it goes. It’s fine as a policy, she’s more than entitled to run her own practice her own way. It wouldn’t be a policy of mine, but I won’t call it wrong to do otherwise. I would disagree should the policy become a dogma, however, because there are situations in which you could harm your client’s interests by refusing to talk to the client’s parents. There are even situations in which it’s reasonably necessary to keep a client’s parents informed and involved, if only to maintain trust and confidence with the client.
All that aside, I wouldn’t second guess any attorney’s judgment in a particular situation. We call these things the way we see them, and ultimately if a client doesn’t like the way one lawyer is handling things they can find another one.
In any case, I’ve always “loved” my clients in the grown up sense. I’ve visited them at times just because they wanted a visit, but not always. I think alienating a client’s parents, friends or other family for no reason other than it’s a “policy” is ill advised. I think telling a client that you don’t care about them, only about “winning” and your own reputation – an example Scott relates in his post – would be showing extremely poor professional judgment in almost any circumstance I can imagine; and also, in almost any circumstance I can imagine, it would be manifestly false.
Beyond simple definitions, the likelihood is this discussion is more about maintaining lawyerly objectivity than anything else. For some lawyers this is more of a problem than for others, so they adopt rules and policies to keep themselves in check. Nothing wrong with that. But for others this device may not be necessary. Their objectivity is not so fragile as to require finely tuned rules and policies to protect it.