30 Pepp. L. Rev. 591 (2002-2003)
One of the most important challenges to lawyers and clients is addressing issues that are not controlled by law. Will the client take steps (legal steps) that will harm other people? Will the officers of a corporation consider the effects of its actions on workers, on consumers, on the community, on the environment? In a divorce, will the client take actions that will harm a child or spouse? What role should the lawyer play regarding these questions? The way lawyers address such issues may do more to determine whether their practice is socially useful or socially harmful than any rule governing the profession. The way lawyers address these issues is also likely to have a great deal to do with whether they find the practice of law personally satisfying.
Over recent decades, three schools of thought have emerged among legal ethicists and legal clinicians concerning the lawyer's role as to moral issues in the counseling relationship. Those approaches are directive, client-centered, and collaborative. Each provides a different combination of answers to the following questions: 1) Who controls the important decisions in the relationship? and 2) Are the interests of people other than the client taken into consideration in making those decisions?
I admit up front that I am not a neutral observer of this discussion. My preference is for the collaborative approach, though I appreciate the arguments for each of the other schools of thought. I also admit that the lines between the schools of thought are not as clear as I might suggest. As you read the essays that follow this one, you will see that each writer is influenced by the same concerns that influence the others. Nevertheless, each balances them a bit differently in developing his or her approach.
Thomas L. Shaffer, Deborah L. Rhode, Paul R. Tremblay & Robert F. Cochran,
Symposium: Client Counseling and Moral Responsibility,
30 Pepp. L. Rev. 591 (2002-2003).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/250
Reprinted from Pepperdine Law Review, 30 Pepp. L. Rev. 591 (2002-2003) .