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Joseph Allegretti
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| excerpted from Joseph Allegretti , Shooting Elephants, Serving Clients: an Essay on George Orwell And The Lawyer-client Relationship, 27 Creighton Law Review 1-24, 22-24 (December, 1993). | |
No doubt there is an inequality inherent in the lawyer-client relationship. The real problem however is not so much the existence of inequality, as it is the conspiracy of silence that excludes certain matters from discussion. Again, Orwell's essay is instructive. Orwell thought that he had no choice but to kill the elephant. He did not even consider another possibility: He could have talked to the Burmese. He could have confronted their expectations of him. He could have developed a real relationship of mutuality and dialogue. Or at least he could have tried. Likewise, lawyers are free to refuse to join with their clients in a conspiracy of silence. They can speak openly about their fears and resentments. They can discuss their moral doubts. They can admit that they are just as troubled and fallible as the next person. They can move beyond roles and resentments to forge a new relationship of mutual respect and dialogue in which both sides participate as moral actors and both sides seek to find the best in each other. Moral interdependence can take the place of moral isolation. As theologian Karl Barth put it, “He who takes the risk of counseling must be prepared to be counseled in turn by his brother if there is need of it.” Lawyers may fear that discussing their moral doubts will compromise the adequacy of the representation they provide. They may believe that as a hired gun they cannot question the need to shoot. Yet, in the long run, a lawyer cannot adequately represent a client if she is cut off from her own moral values and concerns. “Moral arguments have their rightful place in law, but someone who has been trained to ignore moral values can hardly be expected to have the resources at hand to make moral arguments on behalf of clients.” When lawyers join with their clients in a conspiracy of silence, they necessarily diminish the quality of their representation. Orwell claimed that the masks we wear come to dominate us. The tyrant “wears a mask, and his face grows to fit it.” Lawyers wear a mask, too, a “legal persona,” which shapes how they think and talk and act. Like any mask, the legal persona narrows the scope of vision. The lawyer comes to believe that she is an “amoral technician,” that her feelings are off-limits, that she has a job to do and should do it, that moral doubts must be repressed or ignored, that “a sahib has got to act like a sahib.” As Robert Bastress puts it, “ t he professional mask chills the lawyer-client relationship. The lawyer acts out a role and cordons himself off from his and the client's feelings.” The risk of wearing a mask is that the I, the self behind the mask, will be lost. In the end, there can be only one cure for the lawyer whose face has grown to fit the legal mask-she must find the courage and the trust to take off the mask and meet the other face to face.
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