102NEBRASKALAWREVIEW[Vol.82:101IV.Phyllis Goldfarb: A Narratological Perspective on TheLawyer as Friend.....................................187
V.The Lawyer as Friendly Fiduciary and Agent..........196
I.INTRODUCTIONShould lawyers love their clients and try to be their friends?
Some legal commentators seem to think so,
and the idea has a longand venerable history.
Highly regarded scholars have defended the“lawyer-as-friend” analogy
enthusiastically in the past - CharlesFried is perhaps the most well-known example
- 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,
however, and after a period of debate on the topic, support
3.Love and friendship are necessarily intertwined. The Latin word for friendship(
) is derived from the word for love (
) 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.
: A C
(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.
William H. Simon,
The Ideology of Advocacy: Procedural Justice and Professional Ethics,
. L. R
. 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”);
Charles P. Curtis,
The Ethics of Advocacy,
. L. R
. 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
1 (1954) (“Justice is a chillyvirtue. It is of high importance that we be introduced into the inhospitable hallsof justice by a friend.”).6.
The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation,
L. J. 1060 (1976); Edward A. Dauer & Arthur Allen Leff,
Correspondence: The Lawyer as Friend,
L.J. 573 (1977). Whether friend-ship is an analogy, metaphor, or simile, seems to be in dispute. Fried uses bothmetaphor and analogy,
at 1071 (analogy), 1072 (metaphor),but seems to prefer analogy, while Dauer and Leff use metaphor and simile,
Dauer & Leff,
at 576 (metaphor), (577) (simile), but seem to prefermetaphor.7.Fried,
note 6. Dean Kronman’s well known argument for the lawyer as theembodiment of practical wisdom also relies on the friendship analogy.
DEALS OF THE
131-132 (1993).8.For example, Fried’s definition of friendship, “[to] adopt [another’s] interest as[your] own,” Fried,
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-