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SSRN-id473324

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 \\server05\productn\N\NEB\82-2\NEB201.txtunknownSeq: 124-NOV-0316:14
Robert J. Condlin*
“What’s Love Got To Do With It?”
1
-“It’s Not Like They’re Your Friendsfor Christ’s Sake”
2
:The Complicated RelationshipBetween Lawyer and Client
TABLE OF CONTENTSI.Introduction..........................................102
R
II.The Problem - The Hunt for the Elusive RelationshipAnalogy (or Metaphor)................................105
R
III.The Lawyer as Friend.................................120
R
A.Charles Fried - Friend as Hired Gun..............121
R
B.Friendship Historically............................140
R
C.Thomas Shaffer and Robert Cochran: Friend asMoral Advisor.....................................161
R
*Professor of Law, University of Maryland School of Law. I benefited greatly froma discussion of an early draft of this article with the Mid-Atlantic ClinicalTeacher’s Association. Thanks also to Deborah Rhode for several helpful sugges-tions, Bill Simon for what I took to be words of encouragement, and Brian Marronof the University of Maryland Law Library, without whose technical help thisarticle would still be a partially completed manuscript sitting on my desk. Thearticle was supported by grants from the UMB Foundation.1.Movie directors,
see, e.g.
, Brian Gibson, W
HAT
S
L
OVE
G
OT TO
D
O
W
ITH
I
T
? (BuenaVista 1993), law professors,
see e.g.,
David Fraser,
What’s Love Got To Do With It?Critical Legal Studies, Feminist Discourse and the Ethic of Solidarity,
11 H
ARV
.W
OMEN
S
L. J. 53 (1988); Susan Bandes,
What’s Love Got To Do With It?
8 W
M
. &M
ARY
J. W
OMEN
& L. 97 (2001); W. Burlette Carter,
What’s Love Got to Do With It? Race Relations and the Second Great Commandment, in
C
HRISTIAN
P
ERSPECTIVES ON
L
EGAL
T
HOUGHT
130 (Michael W. McConnell et al. eds., 2001),mathematicians,
see e.g.,
Michael Brooks,
What’s Love Got To Do With It?,
168N
EW
S
CIENTIST
38 (2000), and people generally (a Google search turns up overone million links to the expression), ask this question all of the time, but for methe question always will belong to Ike and Tina Turner.2.Richard Gere, as criminal defense lawyer Martin Vail, describing his view oclients to another lawyer while sitting at a bar having a drink, in the movieP
RIMAL
F
EAR
(Paramount Pictures 1996). The statement takes on differentmeaning, of course, depending upon whether one accents “friends” or “Christ’s.” Iuse it in only the latter sense.
101
 
 \\server05\productn\N\NEB\82-2\NEB201.txtunknownSeq: 224-NOV-0316:14
102NEBRASKALAWREVIEW[Vol.82:101IV.Phyllis Goldfarb: A Narratological Perspective on TheLawyer as Friend.....................................187
R
V.The Lawyer as Friendly Fiduciary and Agent..........196
R
I.INTRODUCTIONShould lawyers love their clients and try to be their friends?
3
Some legal commentators seem to think so,
4
and the idea has a longand venerable history.
5
Highly regarded scholars have defended the“lawyer-as-friend” analogy
6
enthusiastically in the past - CharlesFried is perhaps the most well-known example
7
- although usuallythey have relied on a more contractual understanding of friendship,and one more compatible with traditional concepts of adversary advo-cacy than the understanding currently in vogue. These past effortswere widely criticized by other legal commentators on a variety of grounds,
8
however, and after a period of debate on the topic, support
3.Love and friendship are necessarily intertwined. The Latin word for friendship(
amicitia
) is derived from the word for love (
amor
) and love is the prime mover inthe mutual affection characteristic of friendship. Almost no one in the long his-tory of the friendship literature disputes that friendship is based on love.4.
 See
T
HOMAS
L. S
HAFFER
& R
OBERT
F. C
OCHRAN
, J
R
., L
AWYERS
, C
LIENTS
,
AND
M
ORAL
R
ESPONSIBILITY
(1994); R
OBERT
F. C
OCHRAN
, J
R
., J
OHN
M.A. D
I
P
IPPA
, &M
ARTHA
M. P
ETERS
, T
HE
C
OUNSELOR
-
AT
-L
AW
: A C
OLLABORATIVE
A
PPROACH TO
C
LIENT
I
NTERVIEWING AND
C
OUNSELING
(1999).5.William Simon suggests that a form of the friendship idea underlies the early justification for the privileged communication rule in the law of evidence.
 See
William H. Simon,
The Ideology of Advocacy: Procedural Justice and Professional Ethics,
1978 W
IS
. L. R
EV
. 29, 107 (1978) (it appears that the attorney-client evi-dentiary privilege was first rationalized in the 17th century precisely as safe-guarding a valuable personal relationship”);
see also
Charles P. Curtis,
The Ethics of Advocacy,
4 S
TAN
. L. R
EV
. 3, 7-9 (1951) (describing how a lawyer mightbe privileged to lie for a client in the same way one might lie to save a friend orclose relative); C
HARLES
P. C
URTIS
, I
T
S
Y
OUR
L
AW
1 (1954) (“Justice is a chillyvirtue. It is of high importance that we be introduced into the inhospitable hallsof justice by a friend.”).6.
 See
Charles Fried,
The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,
85 Y
ALE
L. J. 1060 (1976); Edward A. Dauer & Arthur Allen Leff,
Correspondence: The Lawyer as Friend,
86 Y
ALE
L.J. 573 (1977). Whether friend-ship is an analogy, metaphor, or simile, seems to be in dispute. Fried uses bothmetaphor and analogy,
see, e.g.,
Fried,
supra,
at 1071 (analogy), 1072 (metaphor),but seems to prefer analogy, while Dauer and Leff use metaphor and simile,
see, e.g.,
Dauer & Leff,
supra,
at 576 (metaphor), (577) (simile), but seem to prefermetaphor.7.Fried,
supra
note 6. Dean Kronman’s well known argument for the lawyer as theembodiment of practical wisdom also relies on the friendship analogy.
 See
A
NTHONY
T. K
RONMAN
, T
HE
L
OST
L
AWYER
: F
AILING
I
DEALS OF THE
L
EGAL
P
ROFES-SION
131-132 (1993).8.For example, Fried’s definition of friendship, “[to] adopt [another’s] interest as[your] own,” Fried,
supra
note 6, at 1071, would seem to include airline pilots andgas station attendants, among others, within the category of friends, and this isnot an intuitively obvious understanding of friendship. Fried denies that a law-
 
 \\server05\productn\N\NEB\82-2\NEB201.txtunknownSeq: 324-NOV-0316:14
2003]THE RELATIONSHIP BETWEEN LAWYER & CLIENT103for the friendship analogy appeared to wane.
9
That is until recently,when other writers, looking at the topic from a more religious perspec-tive, found the analogy congenial once again, and having refined it,have re-asserted it as the proper model for the lawyer-client relation-ship. It is this rejuvenated love-and-friendship view that I want toexamine in this article, to consider whether, after all these years,there is now good reason to believe that lawyers should be thought of as their clients’ friends.
10
I will say at the outset that I do not believe an adequate conceptionof lawyer-client relations can be grounded in an analogy to intimatepersonal relationships. Self-conscious attempts by lawyers to behaveas friends can come across as insincere (as they often will be, althoughnot malevolently so), condescending, and arrogant. They can also pro-
yer is only a “public purveyor of goods,” and that the lawyer-client relationship islike any other commercial transaction,
see
Fried,
supra
note 6, at 1075, but Si-mon has cast considerable doubt on this claim.
 See
Simon,
supra
note 5, at 108-109.9.
 See
discussion notes 146-220
infra,
and accompanying text.10.The nature of lawyer role also was the topic for discussion by the Section on Pro-fessional Responsibility of the Association of American Law Schools at its Janu-ary 2003 annual meeting. The program brought together, “possibly for the firsttime,” representatives of the “three schools of thought . . . [that] have emergedamong legal ethicists and legal clinicians” to discuss lawyer role obligations whenfaced with the prospect of harming third parties as a consequence of client-repre-sentation.
 See
http://www.aals.org/am2003/6190.html.The present analysis is limited to the social dimension of the lawyer-as-friendargument, that is, I take up only the question of whether the two relationshipshave personal and social properties in common. Since the argument fails at thislevel, I do not discuss the question of whether a social (as opposed to a moral andpolitical) conception of lawyer role is adequate. For Aristotle, friendship andpolitics were one and the same, but not everyone agrees.
 See
James J. Friedberg,
 A Comment for Tom Shaffer: The Ethics of Race, The Ethics of Corruption,
88 W.V
A
. L. R
EV
. 670, 676 (1986) (“Tom Shaffer would have his virtuous lawyers prac-tice [friendship] without politics, and I do not believe that is possible. . . . With-out the moral content of fair and egalitarian social ends, [friendship] can beperverted to a philosophical justification for corruption of public life and oppres-sion by the newly empowered.”).The idea of lawyers identifying or bonding with clients, whether emotionally,politically, or financially, is not new of course. One thinks of Bruce Cutler withthe mob, William Kunstler with political activists, John W. Davis with industrial-ists, and the like. It is also the stuff of popular culture,
see, e.g.,
T
HE
D
ESPERATE
H
OURS
(Metro-Goldwyn-Mayer (MGM) 1990) (starring Mickey Rourke, AnthonyHopkins, and Mitzi Green, in which a lawyer who becomes romantically involvedwith a client helps the client escape from prison and terrorize the judge who senthim there) (a remake of a 1955 William Wyler film of the same name). But thesecond generation version of the friendship conception of the lawyer-client rela-tionship, the one now in vogue, differs slightly from these more familiar concep-tions. It sees lawyers more as co-children of the same god, or co-fellow humantravelers, than ideological or economic compatriots, and is committed to a moreabstract and idealized notion of social relationship, although one based on love,than the conceptions of lawyer-client relations based on money or power.

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