1 See, e.g., Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031 (1975).CrossRefGoogle Scholar

2 See Comment, Legal Ethics: Confidentiality and the Case of Robert Garrow's Lawyers, 25 Buffalo L. Rev. 211 (1975); Monroe H. Freedman, Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs-Merrill Co., 1975).Google Scholar

3 For recent discussions of this problem, see Douglas E. Rosenthal, Lawyer and Client: Who's in Charge? (New York: Russell Sage Foundation, 1974); Jay Katz, On Professional Responsibility, 80 Com. L.J. 380 (1975); Warren Lehman, The Pursuit of a Client's Interest, 77 Mich. L. Rev. 1078 (1979); Mark Spiegel, Lawyering and Client Decisionmaking: Informed Consent and the Legal Profession, 128 U. Pa. L. Rev. 41 (1979).Google Scholar

4 See sources cited in Spiegel, supra note 3, at 45 11.15 (1979).Google Scholar

5 See, e.g., Canterbury v. Spence, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972).Google Scholar

6 The applicable legal rules do not use ends and means as the dividing line but rather use categories such as subject matter and procedure, see, e.g., 2 Floyd Russell Mechem on Agency § 2160 (1914); 7 C.J.S. Attorney and Client § 80(b) (1937), and cases cited therein; or cause of action and remedy, see W.A. Robinson, Inc. v. Burke, 327 Mass. 670, 674–75, 100 N.E.2d 366. 369 (1951). Basically, however, these divisions work out to an ends-means formulation. See Spiegel, supra note 3, at 101–3 (1979).Google Scholar

7 See Spiegel, , supra note 3, at 87–89 (1979).Google Scholar

8 Id. at 100–104.Google Scholar

9 Id. at 65–66. On the other hand, the examples given in the notes to EC 7–7 of decisions to be made by the client are whether to accept a settlement offer or waive an affirmative defense. Neither of these illustrations necessarily supports an expansive reading. Of course, notes to the Code do not reflect the official views of the drafters. See Annotated Code of Professional Responsibility xiii (Chicago: American Bar Foundation, 1979).Google Scholar

10 American Bar Association, Committee on Ethics and Professional Responsibility, Model Code of Professional Responsibility and Code of Judicial Conduct DR 7–101(B)(1) (Chicago: American Bar Association, as amended Feb. 1979). The Annotated Code of Professional Responsibility describes this provision as “troublesome.”Supra note 9, at 299.Google Scholar

11 American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Chicago: American Bar Association, Jan. 30, 1980).Google Scholar

12 Consultation may influence decision making, see Melvin Aron Eisenberg, Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller, 92 Harv. L. Rev. 410, 414–18 (1978), but it is not the same as having authority to make the decision.CrossRefGoogle Scholar

13 Although subsection (a)(2) could meet this objection if it is interpreted to require consultation at times other than required by subsection (a)(l), it can also be read to simply specify what has to be discussed during the periodic consultations required by the first subsection.Google Scholar

14 See pp. 1007–8 infra and Spiegel, supra note 3, at 113–23.Google Scholar

15 See Spiegel, , supra note 3, at 72–112, for a discussion justifying using a test of reasonable client expectations. 1 would broaden the language of the Comments, however, to include situations where it is reasonable to expect client values to be involved.Google Scholar

16 In my earlier article, I stated my preference for the categorization approach. See Spiegel, supra note 3, at 123–33. I now believe there are strong reasons having to do with building relationship that at least counsel caution on the question of whether clarity should be the dominant goal. See pp. 1010–15 infra. Google Scholar

17 Where public interests are involved we would expect a rule requiring certain conduct; where only the lawyer's interests are involved we would expect a rule giving the lawyer discretion. But see Philip Shuchman, Relations Between Lawyers in Roscoe Pound-American Trial Lawyers Foundation, Final Report, Annual Chief Justice Earl Warren Conference on Advocacy in the United States: Ethics and Advocacy 73, 93–94 (Washington, D.C.: Roscoe Pound-American Trial Lawyers Foundation, 1978), arguing that lawyers might prefer mandatory rules because such rules help insure that everybody conforms to the same standard of behavior, thereby diminishing the need to police other lawyers.Google Scholar

18 Essentially, however, this returns us to the classic problems of professional responsibility: What should a lawyer do about the client who intends to commit perjury? Must lawyer reveal confidences that constitute crime or fraud?Google Scholar

19 This is not to deny that there may be occasion for principled disobedience to the Rules. See Hazard, Geoffrey C., Jr., Ethics in the Practice of Law 10 (New Haven, Conn.: Yale University Press, 1978); Comment, The Lawyer's Moral Paradox, 1979 Duke L.J. 1335, 1346–48. Cf. Richard Wasserstrom, Lawyers and Revolution, 30 U. Pitt. L. Rev. 125 (1968); Gary Bellow & Jeanne Kettleson, From Ethics to Politics: Confronting Scarcity and Fairness in Public Interest Practice, 58 B.U.L. Rev. 337, 370–71, 387 (1978). Such disobedience, however, would be justified by the application of a particular rule or a wholesale attack on the validity of the profession setting the rules for its own regulation. The basic notion that the client's rights to make demands upon his lawyer are limited by external substantive rules still seems valid to me. See L. Ray Patterson, The Limits of the Lawyer's Discretion and the Law of Ethics: National Student Marketing Revisited, 1979 Duke L.J. 1251, 1260–61. If one wishes to build principled disobedience into the rules a place to start might be via the enforcement process. See the suggestion of Bellow & Kettleson (supra, at 388) that we look for ways of encouraging lawyers who for reasons of conscience either have not followed a rule or barely managed to stay within its bounds to seek review and debate of their conduct.Google Scholar

20 See the discussion of conditioned representation in Bellow & Kettleson, supra note 19, at 358–60.Google Scholar

21 See Schwartz, Murray L., The Professionalism and Accountability of Lawyers, 66 Calif. L. Rev. 669, 690 (1978).Google Scholar

22 See Shuchman, , supra note 17. Of course, even across-the-board rules do not protect against lawyers who feel the economic necessity to violate the rules. See Carlin, Jerome E., Lawyers on Their Own: A Study of Individual Practitioners in Chicago passim (New Brunswick, N.J.: Rutgers University Press, 1962).Google Scholar

23 See Bellow & Kettleson, supra note 19.Google Scholar

24 Model Rule 3.l(a).Google Scholar

25 Hazard, Geoffrey, the reporter for the Commission drafting the Model Rules, discusses the use of what he calls “peremptory advice” to a client. “Peremptory advice” is cast in purely technical terms compelling a single conclusion. The use of such technical advice comes into play where the lawyer is willing to assume responsibility for the client's decision because he believes what the client is about to do is morally wrong. Hazard, supra note 19, at 146–49.Google Scholar

26 The Code has provisions that allow a lawyer to withdraw when the client makes it unreasonably difficult for the lawyer to effectively carry out his job, or in matters not pending before a tribunal, when a client insists on conduct contrary to the lawyer's judgment. DR 2–110(C)(l)(c), (e) supra note 10. There is some evidence that the latter provision may have been inserted in the Code to allow withdrawal for ethical reasons. See Spiegel, supra note 3, at 131 n.380 (1979); Annotated Code of Professional Responsibility, supra note 10, at 124.Google Scholar

27 E.g., some lawyers will consider an unjust act to be one that hinders the search for truth and thus can lead to a case being wrongly decided. This standard is at least somewhat more objective than personal moral repugnance.Google Scholar

28 See Frankel, Charles, Book Review (Code of Professional Responsibility), 43 U. Chi. L. Rev. 874, 877 (1976) (“fundamental intellectual distinction of code”); John F. Sutton, Jr., The American Bar Association Code of Professional Responsibility: An Introduction, 48 Tex. L. Rev. 255, 258 (1970) (“most notable change in the Code is the division into ethical considerations and disciplinary rules”).Google Scholar

29 I am not concerned here with the more general problem whether rules matter at all. See Griffiths, John, Is Law Important? 54 N.Y.U.L. Rev. 339 (1979).Google Scholar

30 Lesnick, Howard, Comment in Becoming a Lawyer: A Humanistic Perspective on Legal Education and Professional Identity, ed. Elizabeth Dvorkin, Jack Himmelstein, & Howard Lesnick, 216 (1980).Google Scholar

31 See, e.g., Goss v. Lopez 419 U.S. 565, 594–95 (1975) (Powell, J., dissenting); William H. Rehnquist, The Adversary Society: Keynote Address of the Third Annual Baron de Hirsch Meyer Lecture Series, 33 U. Miami L. Rev. 1 (1978).Google Scholar

32 See Burt, Robert A., The Constitution of the Family, 1979 Sup. Ct. Rev. 329, 343–45.CrossRefGoogle Scholar

33 Deutsch, Jan G., Correspondence, the Mysteries of Corporate Law: A Response to Brudney and Chirelstein, 88 Yale L.J. 235, 237 (1978).Google Scholar

34 At the 1979 ABA convention, Monroe Freedman criticized the Model Rules for requiring the lawyer to advise the client of relevant ethical and legal limitations upon the lawyer's services because this in effect would be requiring “Miranda warnings.” Google Scholar

35 See the discussion in Frank I. Michelman, Formal and Associational Aims in Procedural Due Process in J. Roland Pennock & John W. Chapman, eds., Due Process 126, 148–51 (New York: New York University Press, 1977).Google Scholar

36 Of course, the present Code does not accomplish its avowed aim of separating aspirational ethics from mandatory rules in a satisfactory manner. It is inconsistent and too frequently treats issues in the ethical considerations that should be part of the mandatory rules. Beyond that its pretensions open it up to charges of being simply public relations material. If this, however, were the only problems with the notion of separating the Code into ethical considerations and disciplinary rules, the appropriate solution would be redrafting, not abandonment.Google Scholar

37 Sutton, John F., How Vulnerable Is the Code of Professional Responsibility? 57 N.C.L. Rev. 497, 516 (1979).Google Scholar

38 L. Ray Patterson, A Preliminary Rationalization of the Law of Legal Ethics 57 N.C.L. Rev. 519 (1979).CrossRefGoogle Scholar

39 Id. at 525–28.Google Scholar

40 See Fuller, Lon L., The Morality of Law 15 (rev. ed. New Haven, Conn.: Yale University Press, 1974) (“Morality of duty finds its closest cousin in the law, while the morality of aspiration stands in intimate kinship with aesthetics”); Judith N. Shklar, Legalism 43, 44 (Cambridge, Mass.: Harvard University Press, 1964) (characterizing the views of “legalists” as: law being external, social, objective, and coercive while morals are internal, individual, subjective, and arbitrary).Google Scholar

See also Hazard's discussion of the views of participants in a symposium on lawyers' ethics, Hazard, supra note 19, at 4 (“professional ethics … product of personal deliberations”).Google Scholar

41 It has been my experience both as lawyer and teacher that discussions of professional responsibility issues oscillate between these poles of rules and ethics. First, the problem is viewed as one of rules and the lawyers' games of statutory construction and line drawing dominate the discussion. The discussion then swings to the other pole–-the ethics pole–-and invariably ends with some expression that it is all subjective and therefore each individual has to make up his own mind. What is lacking is a mode of discourse that encompasses both poles in a satisfactory manner. See Gary Bellow & Bea Moulton, The Lawyering Process 117–20 (1978) for the only discussion of this dilemma that I am aware of in a law book designed for teaching professional responsibility issues.Google Scholar

42 See Roberto Mangabeira Unger, Knowledge and Politics (New York: Free Press, 1975).Google Scholar

43 See the discussion in Frankel, supra note 28, at 877–82. Compare the discussion in Shklar, supra note 40, at 37–38, 43 (positivist insistence on separation of law and morals is to prevent political oppression).Google Scholar

44 See Unger, , supra note 42.Google Scholar

45 Burt, Robert A., Taking Care of Strangers: The Rule of Law in Doctor-Patient Relations (New York: Free Press, 1979); Richard Sennett, Authority (New York: Alfred A. Knopf, 1980).Google Scholar

46 Compare the discussion of “structural due process” in Laurence H. Tribe, Structural Due Process, 10 Harv. C.R.-C.L. Rev. 269 (1975).Google Scholar

47 Burt, supra note 45, at 43–45, 118–19. Burt relies heavily on psychiatric theory to support his conclusions, but I believe that one can accept the conclusion about the need to take account of interaction without accepting whole cloth the psychiatric theory.Google Scholar

48 Id. ch. 6. Burt does ignore the fact that given differing power relationships between professional and client the effects of uncertainty do not fall evenly. See the discussion of the effects of uncertainty in custody standards upon divorce negotiation. Robert H. Mnookin & Lewis Kornhauser, Bargaining in the Shadow of Law: The Case of Divorce, 88 Yale L.J. 950, 977–80 (1979).Google Scholar

49 Sennett, supra note 45, at 185–86.Google Scholar

50 See Spiegel, , supra note 3, at 113–20, 140. But see William H. Simon, The Ideology of Advocacy: Procedural Justice and Professional Ethics, 1978 Wis. L. Rev. 29, 130–44 (advocating the development of nonprofessional advocacy).Google Scholar

51 See Griffiths, , supra note 29. Both Burt and Sennett devote insufficient attention to the problem of whether the changes they advocate can be meaningful in the absence of changes in the structures of professional and economic domination. On the other hand I believe that authors such as William Simon go too far in the other direction when they appear to reject completely the value of changes in individual relationships because such changes are not preceeded by social and economic change. See Simon, William H., Homo Psychologicus: Notes on a New Legal Formalism, 32 Stan. L. Rev. 487 (1980).Google Scholar

52 Remarks of Michael Kelly quoted in Proposed Ethics: A Try for “Balance,” 66 A.B.A.J. 277, 278 (1980).Google Scholar