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and likeable. They should be pleasant to deal with rather than diffi-
cult, and make people want to come back to them rather than avoid
them at all costs. It also would help if they liked people generally, and
took a genuine satisfaction in helping them realize their goals, by
making the interaction with the stressful, complicated, and often
frightening world of law as tolerable as possible. Think of all of this as
the duty of sociability or friendliness (but not friendship), owed by
merchants to customers and, in a sense (although this is more contro-
versial), by persons to strangers. It is not so much a special obligation
of lawyers as it is one of citizenship, or social relations generally, and
it is an important one at that.
Lawyers also are their clients’ fiduciaries.445 Clients have no
choice but to depend upon lawyers if they are to use the legal system
to enforce their rights. It is not just that lawyers know substantive
law and legal procedure and clients do not, but also that clients must
tell lawyers their innermost thoughts and feelings (insofar as they re-
late to the representation), even if they are embarrassing or painful, if
lawyers are to use their expertise to protect client rights. Clients
must become unilaterally vulnerable to lawyers in other words, with
no expectation that lawyers will do the same in return.446 When one

445.See generally Paula A. Monopoli, Fiduciary Duty: A New Ethical Paradigm for
Lawyer/Fiduciaries, 67 MO. L. REV. 309 (2002); D. Gordon Smith, The Critical
Resource Theory of Fiduciary Duty, 55 VAND. L. REV. 1399, 1406-1411 (2002)
(describing the nature of fiduciary duty).
446.How friendship, which requires mutuality and reciprocity, can form under condi-
tions of dependence, is a difficult and nearly intractable question. As a former
colleague of mine put it in reflecting on her own practice experience:
It may be one thing [to say that lawyers and clients can be friends] when
the lawyer and client either have been friends prior to the representa-
tion, or when the lawyer has represented a business on a continuing ba-
sis for a long time, but I was an employment lawyer, and many times I
represented people who had lost their jobs. I could give them legal and
practical advice, and could direct them to resources where they could
obtain other kinds of help, but my clients often were people whose lives
had fallen apart and they could be extremely dependent. Ours was not
an equal relationship. Telling them, under these conditions, that I was
their “friend” would have had implications that could have been un-
healthy and potentially disastrous, and that would have produced even
more harm when the representation ended, as it eventually had to. On
the other hand, saying to them, “I am interested in your problems as
your attorney, and in representing you ethically to the best of my abil-
ity,” and maintaining enough emotional distance from their situation to
be able to make intelligent decisions about what advice to give, gave
them something far more powerful than friendship, and something
which only a lawyer - not a friend - could give, concerned advocacy.
Email from Mary Cornaby, former Assistant Dean for Academic Technology, Uni-
versity of Maryland School of Law, to Robert J. Condlin, Professor of Law, Uni-
versity of Maryland School of Law (Sept. 12, 2002) (on file with author). Tom
Wolfe would probably agree that a client would do better with a lawyer than a



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is coerced into being dependent and vulnerable as a condition of using
a public system such as law, agents of that system should minimize
the risk inherent in such dependence and vulnerability by adhering to
a heightened standard of honesty and fair dealing in return. This
means that lawyers must be truthful with clients, and not hold back
information selectively, or for self-interested or paternalistic reasons.
They must not take advantage of information they learn from clients
to make better-than-market deals for themselves, with clients or
others. They must be candid about where their own interests lie, and
put client interests ahead of their own whenever there is the possibil-
ity that the two will conflict. They must provide clients with the infor-
mation needed to make fully informed decisions about their cases
(with respect to issues assigned to clients by law and the profession’s
ethical codes), and give them the opportunity to consider that informa-
tion freely and without pressure. Finally, they must not judge clients
or client projects unfairly or harshly simply because they disagree
with them, or pull punches in the advancement of those projects as a
consequence of this disagreement, by failing to take actions that
would be effective but also personally distasteful. This cluster of obli-
gations is best captured in the familiar and longstanding concept of
lawyer as client fiduciary.447
Lawyers also are their clients’ agents, in the sense that they are
the instruments of their clients’ wills. They have an obligation to put
client plans into effect successfully insofar as that is possible, but, at a
minimum, in a manner that gives those plans their greatest possibil-
ity of being realized. This means that lawyers must be aware of and
use the full range of skills available to competent practitioners work-
ing in the field, be imaginative and clever in the use of these skills,
pursue client objectives diligently, and also have the courage to use
methods that step outside of conventional or preferred ways of doing
things when something out of the ordinary is needed, even if it entails
some risk to the lawyers’ reputations or personal interests. The only
limit on this instrumental dimension of lawyer role is the familiar one
of positive law, that is, in protecting client rights lawyers always must
operate “within the bounds of law.”
Finally, lawyers are persons in their own right, with moral princi-
ples and limits of their own. They are entitled to act in accordance
with these principles by placing restrictions on whom they represent

What did I tell you the first time you walked into this office? I told you
two things. I told you, ‘Irene, I’m not gonna be your friend. I’m gonna be
your lawyer. But I’m gonna do more for you than your friends.’ And I
said, ‘Irene, you know why I do this? I do it for money.’ And I said,
‘Irene, remember those two things.’ Idd’n ‘at right? Did’n I say that?
447.Shaffer discusses these qualities to a limited extent, see Shaffer, supra note 15, at
657-58, under the rubric of fidelity or faithfulness.



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