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and who disagree with their clients about how to proceed.390 They can
do what the clients say, or they can coerce the clients into accepting
their (the lawyers’) views instead. Shaffer and Cochran reject both of
these options in favor of more talk, but more talk is a conversational
form of a “confession and avoidance,” and not a role-based procedure
for resolving an impasse.
While unconvincing at the level of syllogism, Shaffer and Cochran’s
argument might look better at the level of evidence; that is, they
might be able to show, with hard data, how the idea of lawyer as moral
advisor has a basis in fact, and can be made to work in lawyer-client
conversation. Unfortunately, the “empirical evidence” for their argu-
ments consists mostly of fictional and Janet Malcolm like (i.e., air-
brushed, or too good to be true)391 stories about, or office
conversations between, lawyers and clients in small towns, on televi-
sion, and in the movies,392 and several features of these stories make

390.Lawyers can sometimes withdraw from the relationship with the client, though
391.See Masson v. New Yorker Mag. Inc. et al., 501 U.S. 496, 502-08 (1991) (describ-
ing Janet Malcolm’s empirical method of “paraphrased quotation,” in her cele-
brated 1983 interview of Jeffrey Masson in the New Yorker Magazine); see also
Malcolm’s “theory of quotation,” so to speak, in operation. For the end of the line
in the Masson-Malcolm controversy, see Masson v. The New Yorker Magazine,
Inc., 85 F.3D 1394 (9th Cir. 1996). Commenting on one of his stories, Shaffer
states, “[t]he lawyer-client dialogue in the story fits neatly into the categories we
suggest.” SHAFFER & COCHRAN, supra note 4, at 114. A little too neatly, one
might say.
392.SHAFFER & COCHRAN, supra note 4, at 49-50. Shaffer and Cochran find support
for their conclusion that “[l]awyers and clients often share a moral culture” in the
“stories of small-town lawyers . . . in L.A. Law . . . [and] in the stories of Louis
Auchinloss.” Id. at 49. They do not seem concerned about relying on stories for
evidence, notwithstanding that stories are more often constructed scenarios de-
signed to make predetermined points than they are snapshots of objective reality.
Moreover, they seem to find agreement with their viewpoint everywhere they
look. For example, in their law school classes, “when [they] suggest that students
might talk with clients about moral issues as they would with a ‘close friend,’”
they find that “the notion seems to ring true [to the students].”See Shaffer &
Cochran, supra note 94, at 71. They do not describe how they tested this conclu-
sion, or explain what it means to say that “the notion seems to ring true.” Did
their students agree expressly with the “lawyer as friend” point of view, for exam-
ple, and make new arguments and give new evidence to support it, or did they
simply fail to disagree, and Shaffer and Cochran interpret the lack of disagree-
ment as assent? If the students reported on successful experiences of acting like
a friend with clients, did Shaffer and Cochran monitor these interactions to check
the accuracy of the reports to be sure that the students were not simply going
along with what appeared to be Shaffer and Cochran’s preferred view, for exam-
ple, on the theory that the best way to do well in law school is to agree with your
professors? Shaffer and Cochran need to be a little less casual about their empiri-
cal methods generally if they want their “evidentiary data” to be taken seriously.
For examples of carefully done empirical studies of lawyer-client interaction, see,
e.g., Rodney J. Uphoff & Peter B. Wood, The Allocation of Decisionmaking Be-



Seq: 80






them difficult to take seriously. First, the stories always have a
clearly identified right answer. There seem to be no hard issues in
Shaffer and Cochran’s moral universe, or issues on which reasonable
people could disagree. Shaffer and Cochran deny this, of course, but
one is hard put to find examples in the lawyer stories of parties ex-
pressing equally sophisticated and opposing points of view. The sto-
ries are always conversations between angels and devils, told from the
perspective of the angel.393 One never hears the devil’s views, or at
least the reasonable views the devil might have, but suspects that the
“right answer” would be more difficult to determine if one did. In ad-
dition, when lawyers give moral advice in Shaffer and Cochran’s fic-
tional world, clients understand the error of their ways and
immediately give up strongly felt beliefs to the contrary.394 Only
rarely do they argue back (and when they do they are usually unsuc-
cessful), in an attempt to show lawyers that it is their thinking that
might be wrong. Many of the stories also are too cryptic either to sup-
port or undercut the conclusions Shaffer and Cochran draw from
them, and some support conclusions opposite from the ones drawn.395

tween Defense Counsel and Criminal Defendant: An Empirical Study of Attorney-
Client Decisionmaking, 47 KAN. L. REV. 1 (1998); William Felstiner & Austin
Sarat, Enactments of Power: Negotiating Reality and Responsibility in Lawyer-
Client Interactions, 77 CORNELL L. REV. 1447 (1992); Herbert M. Kritzer, The
Dimensions of Lawyer-Client Relations: Notes Toward a Theory and a Field
Study, 1984 AM. B. FOUND. RES. J. 409.
393.The story about the Johnson family business, see SHAFFER & COCHRAN, supra
note 4, at 40-42, is a good example. The story is so overdrawn in order to make its
point that it bears almost no resemblance to an ordinary lawyer-client conversa-
tion. It is hard to know what lesson, if any, to take from it.
394.The story about the half way house zoning controversy, see id. at 116-29, is a good
example. Occasionally Shaffer describes a lawyer going along with a client choice
with which the lawyer disagrees. A good example is the Wendell Berry story
about a lawyer who drafts a will to leave an estate to an illegitimate son, bypas-
sing a legitimate heir in the process.Id. at 53-54. Shaffer approves of the law-
yer’s action because it was based on an acceptance of the client’s different value
system, and the preferences that flowed from it. The irony in this conclusion is
that a hired gun lawyer would have drafted the will in the same way, and faster,
while a true friend might have tested the client’s wishes a little more carefully
before drafting (by explaining that the legitimate heir might contest the will, and
that a court might not enforce it), to be sure that the client knew the risks he was
395.See, e.g., the story of Sir Abraham taken from Anthony Trollope’s novel THE WAR-
DEN.SHAFFER & COCHRAN, supra note 4, at 101-107. Sir Abraham is a lawyer for
Septimus Harding, the protagonist in the story and warden of a charity hospital,
who is being sued to allocate a larger percentage of the trust income supporting
the hospital (and Harding), to patients. Shaffer and Cochran accuse Sir Abra-
ham of being a poor counselor for challenging Harding’s decision not to contest
the lawsuit, and to give up a house and an income of £800 a year, when he has
few other means of support for himself and his family.Id. at 104. Sir Abraham
eventually goes along with Harding’s decision, but not before making several ar-
guments against it, and advising Harding to consult with his friends before mak-



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