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What Makes a Good and Ethical Lawyer

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What Makes a Good and Ethical Lawyer South Carolina Law Review Volume 63 Issue 2 Article 4 Winter 2011 Character or Code: What Makes a Good and Ethical Lawyer Donald James Hermann DePaul University College of Law Follow this and additional works at: https://scholarcommons.sc.edu/sclr Part of the Law Commons Recommended Citation Hermann, Donald James (2011) "Character or Code: What Makes a Good and Ethical Lawyer," South Carolina Law Review: Vol. 63 : Iss. 2 , Article 4. Available at: https://scholarcommons.sc.edu/sclr/vol63/iss2/4 This Article is brought to you by the Law Reviews and Journals at Scholar Commons. It has been accepted for inclusion in South Carolina Law Review by an authorized editor of Scholar Commons. For more information, please contact [email protected]. Hermann: Character or Code: What Makes a Good and Ethical Lawyer CHARACTER OR CODE: WHAT MAKES A GOOD AND ETHICAL LAWYER* Donald H.J. Hermann" The objective of this Article is to explore what it means to say a person is a good lawyer as well as what makes a lawyer ethical. By a good lawyer, I mean a professionally competent and effective lawyer. By an ethical lawyer, I mean a moral person, a person of praiseworthy character. This question of what it means to be a good and ethical lawyer seems all the more compelling when it is recognized that our society today has a rather dismal view of lawyers and the legal establishment. Jokes about lawyers abound and provide a window into joke goes, "How can you tell when your social attitudes about lawyers. As one ' 2 lawyer is lying to you? [When] [h]is lips move." But how should one go about exploring lawyers' behavior and conduct in relation to ethical standards or the shared values of society? It is difficult to discern much of relevance on this question by examining legal materials. Legal opinions seldom discuss the lawyer as a moral agent, even when reviewing specific conduct found to violate professional ethical norms. 3 To understand An earlier version of this article was presented as a paper to the Chicago Literary Club on April 4, 2011, at The Cliff Dwellers Club in Chicago, Illinois. Professor of Law and Philosophy, DePaul University; A.B. 1965, Stanford University; J.D. 1968, Columbia University; LL.M. 1974, Harvard University; M.A. 1979, Northwestern University; Ph.D. 1981, Northwestern University; M.A.A.H. 1995, School of the Art Institute of Chicago; M.L.A. 2001, University of Chicago. 1. See Marc Galanter, The Faces of Mistrust: The Image of Lawyers in Public Opinion, Jokes, and Political Discourse, 66 U. CIN. L. REv. 805, 816 (1998). 2. Thomas W. Overton, Lawyers, Light Bulbs, and Dead Snakes. The Lawyer Joke as Societal Text, 42 UCLA L. REv. 1069, 1070 (1995). According to Michael Asimow, "[tioday lawyers are more despised than they have ever been before. This is something we probably knew already from the prevalence of nasty lawyer jokes or talk shows, or from social and professional interactions with lay persons." Michael Asimow, Bad Lawyers in the Movies, 24 NOVA L. REV. 533, 537 (2000) (footnote omitted). 3. Compare the limited value of legal opinions for understanding how ethical considerations and questions of character are related to the issue of the good or ethical lawyer, to the need to supplement legal opinions in law school to provide a more developed understanding of the law and legal system. See Philip N. Meyer with Stephen L. Cusick, Using Non-Fiction Films as Visual Texts in the First-Year Criminal Law Course, 28 VT. L. REv. 895, 895-96 (2004). Meyer and Cusick observe the following issues for first-year students: [Mlany students find the constant diet of appellate opinions served up in the first year, the density and impenetrability of many opinions, and the decontextualized nature of these fragments severed from the full text of the opinion, often unsatisfying and unfulfilling. The legal texts raise questions that cannot possibly be fully anticipated and answered by the supplemental materials in the casebook. ...[Mlany first-year students desire and manifest a psychological readiness for narrative understandings of criminal law that can be readily "rationalized" and justified pedagogically in terms of developing their lawyering skills. Film provides a marvelous Published by Scholar Commons, 2011 1 South Carolina Law Review, Vol. 63, Iss. 2 [2011], Art. 4 SOUTH CAROLINA LAW REVIEW [VOL. 63: 339 what makes a lawyer ethical, we need more than desiccated references in legal opinions to the action taken by plaintiffs or defendant's counsel. We need the basis for an assessment of the whole person that can provide insight into the personality and character of the individual lawyer. There are written texts that provide a rich source of material for addressing the question of what makes a lawyer ethical. These include autobiographical works by lawyers and judges, biographies of legal professionals, and novels portraying the life or activities of these individuals. 4 The value of these works is that they provide an insight into the full life of the individuals who are the subjects of these works. In these works, we are given accounts of fully developed people, not simply the designation-plaintiff's or defendant's lawyer. These works also provide aspects of personality and character that give insight into the subject's motivations and conduct, not simply descriptions of conduct or activity in the courtroom or law office. Therefore, the accounts of such activities provided in these works often are significant for understanding what it means to be a good and ethical lawyer. Movies can also provide the kind of insight needed to understand what makes a lawyer ethical. Films not only reflect the attitudes of film makers about the law and lawyers, they often portray lawyers as fully developed individuals whose character and personality are presented in such a way that the viewer can gain insight into the character's beliefs, motivations, and conduct. 5 Recent academic study has taken seriously the depiction in films of lawyers and the legal system.6 Much of what the public learns or believes about lawyers and the legal system is based on depictions and portrayals in film and media.7 But it is vehicle and opportunity to go beyond doctrinal analysis and to understand the law in some fuller, deeper and more complete context. Id. 4. See, e.g., JAMES GOULD COZZENS, BY LOVE POSSESSED (1957) (a novel following a small town attorney through 49 hours of his life); CLARENCE DARROW, THE STORY OF MY LIFE (1960) (an autobiography of a trailblazing lawyer); WILLIAM 0. DOUGLAS, Go EAST, YOUNG MAN (1974) (an autobiography of a U.S. Supreme Court Justice); JOHN GRISHAM, THE SUMMONS (2002) (a novel about a lawyer who finds a huge sum of money and investigates where it came from); LEWIS J. PAPER, BRANDEIS (1983) (a biography of a U.S. Supreme Court Justice); SCOTT TUROW, PRESUMED INNOCENT (1987) (a novel about a prosecutor charged with the murder of his colleague). 5. See James R. Elkins, Reading/Teaching Lawyer Films, 28 VT. L. REV. 813, 841-42 (2004). Elkins observes the usefulness of lawyer films: In lawyer films, we find lawyers pursuing justice (or standing in the way of it) as they deal with clients, judges, other lawyers, and people in the community. We identify, if we have any sense of humanity and empathy, in a deep, fundamental way with those who have suffered injustice and with those who work to see justice done. Id. at 828. 6. See, e.g., STEVE GREENFIELD ET AL., FILM AND THE LAW 11 (2001) ("Apart from the interests of those intimately involved in legal education, other scholars have homed in on broadly legal issues as part of wider academic goals. These have included situating lawyers within the culture within which they operate."). 7. See Lawrence M. Friedman, Law, Lawyers, and Popular Culture, 98 YALE L.J. 1579, 1592-93 (1989). Friedman observes that the phrase "popular legal culture" has a double meaning. https://scholarcommons.sc.edu/sclr/vol63/iss2/4 2 Hermann: Character or Code: What Makes a Good and Ethical Lawyer 2011] CHARACTER OR CODE also significant that those who make films (producers, directors, screenwriters) involving lawyers and judges base their depictions and appraisals of lawyers not only on their own observations, but also on reported experiences of litigants and others operating within the legal system. The professional standards for appropriate performance, derived from the expectations developed within the legal profession itself, are a significant influence on lawyers' own self-perception of what it takes to be a good lawyer and on their understanding of the role of lawyers and judges.9 The profession has developed over time an understanding of what it means to be a good and ethical lawyer. 10 It is important to understand that both notions of professional responsibility as well as societal expectations of what it means to be a good and ethical lawyer have changed and evolved over time. 11 An important contribution that films provide for the study of law and lawyers is the depiction of these status, role, and function of the lawyer in changing understandings2 of the American society. 1 Id. at 1580 (emphasis omitted). First, it refers to opinions and information about law held by the general public. Id. Second, it refers to works of imagination about law in print, film, television, or other media. Id. It is my contention that these meanings are intertwined. Films affect popular understanding, and popular understanding informs the content of films. 8. See id. at 1592-93. Films as a product of popular culture reflect the attitudes, beliefs, and social mores of those making the film, as well as being representative of the attitude of society or culture at a particular time.
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