Friday, March 30, 2007
Posted by Alan Childress
Sande Buhai (Loy.-L.A.), right, has posted to SSRN her article: "Emotional Conflicts: Impaired Dispassionate Representation of Family Members." The article "proposes specific amendatory language to the Model Rules themselves." Here is the first part of the abstract, with the detailed breakdown of its five parts beneath the fold:
Lawyers have a duty to provide objective and unbiased representation. Although emotional conflicts can interfere with proper discharge of this duty, sometimes quite seriously, neither the Model Rules of Professional Conduct nor scholarly writings on legal ethics have ever systematically addressed the issues they raise. This article proposes, I believe for the first time, that lawyers should be required to take potential emotional conflicts into account both before undertaking to represent and while representing any person with whom they have family or emotional ties, whether spouse, lover, cousin, sibling, or parent.
The rest of the abstract is:
Part I explores changing conceptions of the role of the attorney. Whether a lawyer can properly perform her job necessarily depends on how we define that job. A lawyer, Part I contends, is more than just a hired gun. In particular, the lawyer's role as counselor and problem solver exacerbates the conflicts that can arise when clients and lawyers have emotional ties outside their lawyer-client relationship.
Part II draws on the psychological literature to support the importance of a lawyer's role in providing dispassionate counsel. Such counsel is often essential to overcoming emotional biases in a client's perceptions, analyses, and decision-making. When the lawyer is herself emotionally involved, her ability to provide such dispassionate counsel may be impaired. Lawyers are often trained as rational decision-makers in law school and may be resistant to the notion that emotions can impact their judgment. The literature, however, suggests otherwise.
Part III then explores the ABA's current Model Rules and their application to this issue. A rule specifically addressing the problems posed by emotional conflicts would be fully consistent with existing general rules. Current general rules, however, are inadequate in and of themselves.
Part IV offers, by comparison, the ethical rules that govern two arguably comparable professions: psychology and medicine.
Part V, finally, proposes specific amendatory language to the Model Rules themselves. Our ethical rules, like those of other professions, should be drafted on the assumption that its members are real people – human beings who laugh, cry, feel anger, fall in love, have ridiculously complex emotional relationships with family members, and are occasionally as irrational as anyone else.