Thursday, December 17, 2015
I have not taught Professional Responsibility in a few years, but when I did, one unit concerned the allocation of authority as between a client and a lawyer. The rule is 1.2, which states in relevant part: "a lawyer shall abide by a client's decisions concerning the objectives of representation and...shall consult with the client as to the means by which they are to be pursued..." In my experience, discussion of this provision tends to focus on a few, fairly dull, contemporary oddities without a great deal of depth in them--the Unabomber case, or scattershot debates between Supreme Court justices about the ends of litigation, and so on.
But there is a wonderful illustration of the conflict that the rule perhaps means, in its typically arid and exsanguinous way, to address, in Dickens's "Bleak House." Here is the scene: an upright and honorable, though down-on-his-luck, military man, Mr. George, has been wrongfully accused of the murder of a prominent and rather nasty lawyer, Mr. Tulkinghorn, who represented one of George's creditors. George is being held in custody and his friends, who include the novel's main protagonists, come to visit and express sympathy. And to advise that he get a lawyer for his defense. But here is George's reaction (in Chapter LII, titled "Obstinacy," in discussion with Mr. Jarndyce, who is referred to by the narrator, Esther Summerson, as "my guardian"):
"You must have a lawyer," pursued my guardian. "We must engage a good one for you."
"I ask your pardon, sir," said Mr. George, with a step backward. "I am equally obliged. But I must decidedly beg to be excused from anything of that sort."
"You won't have a lawyer?"
"No, sir." Mr. George shook his head in the most emphatic manner. "I thank you all the same, sir, but--no lawyer!"
"I don't take kindly to the breed," said Mr. George. "Gridley didn't. And--if you'll excuse my saying so much--I should hardly have thought you did yourself, sir."
"That's Equity," my guardian explained, a little at a loss; "that's Equity, George."
"Is it, indeed, sir?" returned the trooper, in his off-hand manner. "I am not acquainted with those shades of names, myself, but in a general way I objected to the breed."
Unfolding his arms and changing his position, he stood with one massive hand upon the table, and the other on his hip, as complete a picture of a man who was not to be moved from a fixed purpose as I ever saw. It was in vain that we all three talked to him, and endeavoured to persuade him; he listened with that gentleness which went so well with his bluff bearing, but was evidently no more shaken by our representations than his place of confinement was.
"Pray think, once more, Mr. George," said I. "Have you no wish, in reference to your case?"
"I certainly could wish it to be tried, miss," he returned, "by court-martial; but that is out of the question, as I am well-aware. If you will be so good as to favour me with your attention for a couple of minutes, miss, not more, I'll endeavour to explain myself as clearly as I can."
He looked at us all three in turn, shook his head a little as if he were adjusting it in the stock and collar of a tight uniform, and after a moment's reflection went on.
"You see, miss, I have been handcuffed and taken into custody, and brought here. I am a marked and disgraced man, and here I am....I don't particularly complain of that. Though I am in these present quarters through no immediately preceding fault of mine, I can very well understand that if I hadn't gone into the vagabond way in my youth, this wouldn't have happened. It has happened. Then comes the question, how to meet it."
He rubbed his swarthy forehead for a moment, with a good-humoured look, and said apologetically, "I am such a short-winded talker that I must think a bit." Having thought a bit, he looked up again, and resumed.
"How to meet it. Now, the unfortunate deceased was himself a lawyer, and had a pretty tight hold of me. I don't wish to rake up his ashes, but he had, what I should call if he was living, a Devil of a tight hold of me. I don't like his trade the better for that. If I had kept clear of his trade, I should have kept outside this place. But that's not what I mean. Now, suppose I had killed him....What should I have done as soon as I was hard and fast here? Got a lawyer."....
"I should have got a lawyer, and he would have said (as I have often read in the newspapers), 'my client says nothing, my client reserves his defence--my client this, that, and t'other.' Well, 'tis not the custom of that breed to go straight, according to my opinion, or to think that other men do. Say, I am innocent, and I get a lawyer. He would be as likely to believe me guilty as not; perhaps more. What would he do, whether or not? Act as if I was;--shut my mouth up, tell me not to commit myself, keep circumstances back, chop the evidence small, quibble, and get me off perhaps! But, Ms. Summerson, do I care for getting off in that way; or would I rather be hanged in my own way--if you'll excuse my mentioning anything so disagreeable to a lady?"
He had warmed into his subject now, and was under no further necessity to wait a bit.
"I would rather be hanged in my own way. And I mean to be! I don't intend to say," looking round upon us, with his powerful arms akimbo and his dark eyebrows raised, "that I am more partial to being hanged than any other man. What I say is, I must come off clear and full or not at all. Therefore, when I hear stated against me what is true, I say it's true; and when they tell me, 'whatever you say will be used,' I tell them I don't mind that; I mean it to be used. If they can't make me innocent out of the whole truth, they are not likely to do it out of anything less, or anything else. And if they are, it's worth nothing to me."