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Summary of 30-page article, "The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation" by Charles Fried
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The Lawyer as Friend: The MoralFoundations of the Lawyer-Client Relation
Charles Fried
Introduction
-Main question addressed below=Can a good lawyer be a good person?
-The lawyer is conventionally seen as a professional devoted to his client's interests
and as authorized, if not in fact required, to do some things (though not anything) for
that client which he would not do for himself
-Compatibility between this traditional conception of the lawyer's role and the ideal of
moral purity
I. The Challenge to the Traditional Conception
A. The Two Criticisms
-First, it is said that the ideal of professional loyalty to one's client permits, even
demands, an allocation of the lawyer's time, passion, and resources in ways that are not
always maximally conducive to the greatest good of the greatest number.
-Critics contend that it is wasteful and immoral that some of the finest talent in the
legal profession is devoted to the intricacies of, say, corporate finance or elaborate
estate plans, while important public and private needs for legaI services go unmet.
-The immorality of this waste is seen to be compounded when the clients who are the
beneficiaries of this lavish attention use it to avoid their obligations in justice (if not in
law) to society and to perpetuate their (legal) domination of the very groups whose
greater needs these lawyers should be meeting.
-The second criticism applies particularly to the lawyer. It addresses not the
misallocation of scarce resources, which the lawyer's exclusive concern with his
client's interests permits, but the means which this loyalty appears to authorize, tactics
which procure advantages for the client at the direct expense of some identified
opposing party.
-Examples are discrediting a nervous but probably truthful complaining
witness7 or taking advantage of the need or ignorance of an adversary
in a negotiation.
-This second criticism is, of course, related to the first, but there is a difference. The
first criticism focuses on a social harm: the waste of scarce resources implicit in a
doctor caring for the hearts of the sedentary managerial classes or a lawyer tending to
the estates and marital difficulties of the rich.
-By the second criticism the lawyer is accused not of failing to benefit the appropriate,
though usually unidentified, persons, but of harming his identified adversary.
, B Examples
-And I for one think that a lawyer who arranges the estate of a disagreeable dowager or
represents one of the parties in a bitter matrimonial dispute must be as assiduous and
single-minded in fulfilling his obligation to that client as the lawyer who is defending
the civil liberties case of the century
-In a negotiation it becomes clear to the lawyer for the seller that the buyer and his
lawyer mistakenly believe that somebody else has already offered a handsome price for
the property. The buyer asks the seller if this is true, and the seller's lawyer hears his
client give an ambiguous but clearly encouraging response.
-On the one hand, there is harm to society in making the choice to favor the client's
interests: a dangerous criminal may escape punishment or an appropriately heavy
sentence.
-On the other hand, this social harm is accomplished by means of acting towards
another human being-the judge, the complaining witness-in ways that seem
demeaning and dishonorable.
II. The Lawyer as Friend
A. The Thesis
-In this essay I will consider the moral status of the traditional conception of the
professional.
-The real question is whether, in the face of these two criticisms, a decent and morally
sensitive person can conduct himself according to the traditional conception of
professional loyalty and still believe that what he is doing is morally worthwhile.
-I will argue in this essay that it is not only legally but also morally right that a lawyer
adopts as his dominant purpose the furthering of his client's interests-that it is right
that a professional put the interests of his client above some idea, however valid, of the
collective interest.
-How can it be that it is not only permissible, but indeed morally right, to favor the
interests of a particular person in a way which we can be fairly sure is either harmful to
another particular individual or not maximally conducive to the welfare of society as a
whole?
-a lawyer may be privileged to lie for his client in a way that one might lie to save one's
friends or close relatives."
-Indeed, our intuition that an individual is authorized to prefer identified persons
standing close to him over the abstract interests of humanity finds its sharpest
expression in our sense that an individual is entitled to act with something less than
impartiality to that person who stands closest to him-the person that he is.
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