ROLE OF LAWYER

A. ROLE OF A LAWYER
Fundamental to any study of lawyer ethics is an appreciation of
the lawyer’s role with respect to clients, the profession itself, the
state and the public interest generally. The words of the lawyer
codes themselves have a general nature. Their interpretation and
understanding comes from reading them in the context of the
lawyer’s role.
Lawyers obviously play different roles depending on their place
in the legal profession and the nature of their law practice or
activity. Judges and prosecutors have fundamentally different roles
from those of private lawyers. But even within the ranks of those
we would usually call ‘‘lawyer,’’ different practice settings shade
the lawyer’s role in different ways. Criminal defense lawyers have
special responsibilities and duties; in-house corporate lawyers the
same; lawyers for government agencies serve somewhat different
interests than do private lawyers. Always consider the particular
place of a lawyer in society when considering that lawyer’s proper
course in a given circumstance.
The role of lawyer, of course, will vary from one legal system to
another. But some generalities can be drawn. Lawyers bring the
law to non lawyers by advising clients and by drafting documents
that make clients’ transactions work to serve the clients’ interests
within legal constraints. Lawyers make the system of justice work.
Their role is more active in the litigation process in common law
countries, to be sure, but in civil as well as common law countries,
the lawyer plays a crucial role in operating the system of justice,
shepherding cases through the system. Lawyers play an important
role in law making as well. Many lawyers serve in legislatures and
parliaments and often lawyers are called upon to advise parliaments
on the details of new laws.
It is possible to have different views of what a lawyer does.
Some may say that a lawyer is a business person, not unlike the
barber, the doctor or the shop owner, providing a service to paying
customers. Others will see a more public-abiding role for the
lawyer, providing a service to paying clients but also maintaining
an eye on the public interest, justice, and fairness of society. This
difference in view will account for differing opinions about what a
lawyer should do in a morally difficult position.
In democratic societies, lawyers surely fill an important role
that no other professional fills: the lawyer is the guardian of the
rule of law, the ideal that all people stand equally before the law
and neither expect nor receive special treatment from it. In emerging
democracies, this role is especially important for lawyers, who
have the potential to become the great levelers between the powerful
and the less so. To be sure, the market for lawyer services, even
in the most well-established democracies, is tilted sharply toward
the corporate world and toward those with means. But guarantees
of the right to counsel in criminal matters, government funded
legal aid for the poor (limited as it is), and pro bono activities of
private lawyers, all combine to create some promise that the most
important matters affecting the poor and the powerless will also be
served by lawyers and the legal profession.

B. THE ROLE OF THE LAWYER IN THE CIVIL
AND COMMON LAW SYSTEMS
A common law system relies on court decisions as a source of
law while a civil law system relies solely on statutes created by the
legislature or administrative bodies. In a civil law system, therefore,
the judge applies the law but does not create it. In a common law
system, however, judges and lawyers must employ a more casuistic
approach to legal thinking. Judges create a common law system
gradually by deciding one case at a time building a body of law
based on the collective wisdom of other judicial decisions. This
different approach may lead legal professionals in a common law
system to concern themselves more with the practical administration
of the law while legal professionals in a civil law system may
find themselves more concerned with theory and preserving the
statutory framework as a coherent whole.
The differences between the civil and common law systems also
manifest themselves through dispute resolution procedure. Disputes
in a common law system are resolved through an adversarial
system. The two opposing parties investigate, collect and present
the evidence and arguments before a passive factfinder. Judges
typically only intervene to guarantee that the adversaries have
equal opportunities to present their evidence and arguments to the
factfinder. On the other hand, in a civil law system, judges exercise
much more control over the scope and direction of the litigation.
The dispute resolution process becomes more inquisitorial than
adversarial. The lawyers in civil law systems proffer lines of inquiry
and make legal arguments rather than collecting evidence and
presenting it as common law parties do. Also, civil law trials do not
follow the point-counterpoint format that common law trials do.
Rather, the trials are more fluid, often becoming a series of hearings
instead of one ultimate trial.
1. United States
Alexis De Tocqueville once stated that ‘‘When one visits Americans
and when one studies their laws, one sees that the authority
they have given to lawyers and the influence that they have allowed
them to have in the government form the most powerful barrier
today against the lapses of democracy. This effect seemsTTT to have
a general cause that is useful to inquire about, for it can be
reproduced elsewhere.’’1 The abundant authority and deference,
apparent to De Tocqueville, that American society affords lawyers
has given them the opportunity to play a crucial role in the
formation of American government. As Uncle Ben would warn
Peter Parker, however, ‘‘with great power comes great responsibility.’’
2
Lawyers have indeed responded to this responsibility by molding
America’s government and laws from their infancy. In fact,
‘‘[t]he Principal author of the Declaration of Independence, Thomas
member of a learned profession, a lawyer should cultivate
knowledge of the law beyond its use for clients, employ that
knowledge in reform of the law and work to strengthen legal
education. In addition, a lawyer should further the public’s
understanding of and confidence in the rule of law and the
justice system because legal institutions in a constitutional
democracy depend on popular participation and support to
maintain their authority. A lawyer should be mindful of deficiencies
in the administration of justice and of the fact that the
poor, and sometimes persons who are not poor, cannot afford
adequate legal assistance. Therefore, all lawyers should devote
professional time and resources and use civic influence to
ensure equal access to our system of justice for all those who
because of economic or social barriers cannot afford or secure
adequate legal counsel. A lawyer should aid the legal profession
in pursuing these objectives and should help the bar regulate
itself in the public interest.12
Lawyers play a vital role in the preservation of society. The
fulfillment of this role requires an understanding by lawyers of
their relationship to our legal system. The Rules of Professional
Conduct, when properly applied, serve to define that relationship.
13
These standards reflect not only the necessity of zealous representation
for clients in the United States’ adversarial common law
system but also the necessity of a lawyer’s integrity for society.
Absent either of these elements, the United States’ legal system
would not function nearly as efficiently as it currently does.
2. Japan
At the time of the Restoration, no legal profession existed in
Japan.14 Accordingly, lawyers neither led the revolution nor drafted
Japan’s original Constitution or Codes as occurred in the United
States.15 Instead, Japanese law formed based on statutes of Western
origin but has grown to often reach outcomes distinct from other
legal systems.16
The Japanese legal profession developed in a similar manner to
the English legal profession.17 Innkeepers would often advise customers
engaged in disputes with government tax offices. Although
Jefferson, was a lawyer. The principal force behind a unified
colonial response to British occupation of Boston, and hence the
Revolutionary War, John Adams, was a lawyer.’’3 Countless other
lawyers such as Alexander Hamilton, John Marshall, and William
Paterson proved critical to the nation’s development.4 Thus, it
should come as no surprise that ‘‘[t]he footprints of the legal
profession are evident in the basic documents of the Revolution and
the basic documents establishing the United States.’’5 Lawyers
today continue this tradition of public service with their strong
presence in the executive branches of our government and the state
and federal legislatures that shape our law. Lawyers not employed
in the field of public service guide individuals and business entities
through the United States’ complex legal system.
The controlling part law and the legal profession plays in our
society has spawned a great deal of public interest in the role of the
lawyer.6 ‘‘The three-fold loyalty of the lawyer to his client, to the
court or administrative agency before which he practices, and to
society at large, presents important problems of intrinsic interest to
everyone.’’7 The intense scrutiny that lawyers face as a result of
these significant duties has led to the criticism and distrust of
lawyers throughout history.8 The legal profession has gone to great
lengths to regulate itself, in part, to make sure the things that
cause this distrust do not happen. The ABA has aptly described the
role of the lawyer in the United States as follows:
A lawyer, as a member of the legal profession, is a representative
of clients, an officer of the legal system and a public citizen
having special responsibility for the quality of justice.9
As a representative of clients, a lawyer performs various functions.
As advisor, a lawyer provides a client with an informed
understanding of the client’s legal rights and obligations and
explains their practical implications. As advocate, a lawyer
zealously asserts the client’s position under the rules of the
adversary system. As negotiator, a lawyer seeks a result advantageous
to the client but consistent with requirements of
honest dealings with others. As an evaluator, a lawyer acts by
examining a client’s legal affairs and reporting about them to
the client or to others.10
In addition to these representational functions, a lawyer may
serve as a third-party neutral, a nonrepresentational role helping
the parties to resolve a dispute or other matter. Some of
these Rules apply directly to lawyers who are or have served as
third-party neutrals. See, e.g., Rules 1.12 and 2.4. In addition,
there are Rules that apply to lawyers who are not active in the
practice of law or to practicing lawyers even when they are
acting in a nonprofessional capacity. For example, a lawyer
who commits fraud in the conduct of a business is subject to
discipline for engaging in conduct involving dishonesty, fraud,
deceit or misrepresentation. See Rule 8.4.11
As a public citizen, a lawyer should seek improvement of the
law, access to the legal system, the administration of justice
and the quality of service rendered by the legal profession. As a
these innkeepers could not actually represent the customers before
the tax office, they would assist by drafting documents and constructing
arguments.18 Later, the Lawyers Law of 1893 created the
modern lawyer also known as bengoshi.19
The training of Japanese lawyers differed dramatically from
that of American lawyers until recently.20 In 2004, Japan changed
its law school system to more closely match the United States law
school system.21 The new law schools operate at the graduate level
and employ ‘‘a more Americanized methodology based on the
Socratic method.’’22 Currently there are over sixty such schools in
operation in Japan.23 Prior to the implementation of this new law
school system, law schools operated at the undergraduate level and
followed the typical Japanese pedagogy, lecture.24 Even after this
revolution in legal education, much remains the same as in the
prior system and much remains to develop.
Most Japanese lawyers practice as individuals outside of a law
firm.25 Even when these lawyers enter into partnerships, they tend
to operate more as individuals with shared expenses than true
partners.26 Law firms of more than one hundred lawyers are virtually
nonexistent because Japanese law forbids branch offices.27 It is
almost impossible for a foreigner to become a member of the
Japanese bar because the bengoshi exam is notoriously difficult and
administered only in Japanese.28 Most Japanese lawyers practice in
Tokyo or Osaka which leads to shortages of legal services in rural
areas.29 Also, most Japanese lawyers do not specialize but rather
become general practitioners.
In November 2004, Japanese attorneys ‘‘established new ethical
standards which also apply to registered foreign business attorneys.’’
30 These standards also apply to registered foreign business
attorneys. These ethical rules characterize an attorneys role and
duties as follows:
1. An attorney shall be aware that his or her mission is to
protect fundamental human rights, to realize social
justice, and strive to attain this mission.
2. An attorney shall respect freedom and independence in
his or her duties.
3. An attorney shall be aware of the importance of attorney
autonomy and strive to maintain and develop a
self-governing system.
4. An attorney shall protect the independence of the
judiciary and strive to contribute to the sound development
of the justice system.
5. An attorney shall respect truth, be faithful, and perform
his or her duties fairly and in good faith.
6. An attorney shall value honor, maintain credibility,
unsullied integrity, and strive to ennoble himself or
herself at all times.
7. An attorney shall develop his or her culture and strive
to study in order to be deeply versed in statutes and
legal business.
8. An attorney shall strive to participate in and practice
public interest activities that are appropriate to his
mission.
While these rules lay out the basic ethics for the attorneys
(bengoshi), there are several other types of legal service providers:
judicial scrivners, administrative scrivners, patent attorneys, tax
attorneys, and social insurance and labor consultants. The roles of
these legal professionals differ in that they offer more specialized
services, but they largely follow the same ethical code. ‘‘Although
the Japanese government plans to increase the number of attorneys
to 50,000 by 2018, currently legal service providers must provide a
significant amount of services to individuals and corporations because
there are only about 20,000 attorneys in Japan—one attorney
per 6,000 people—compared to about 941,000 attorneys in the
United States—one attorney per 290 people.’’31 Whether Japan can
accomplish this feat remains to be seen.
3. European Union
The Council of the Bars and Law Societies of Europe (CCBE)
Preamble addresses the role of lawyer in a quite general way as
follows:
In a society founded on respect for the rule of law the
lawyer fulfills a special role. His duties do not begin and
end with the faithful performance of what he is instructed
to do so far as the law permits. A lawyer must serve the
interests of justice as well as those whose rights and
liberties he is trusted to assert and defend and it is his
duty not only to plead his client’s cause but to be his
adviser.32
A lawyer’s function therefore lays on him a variety of legal
and moral obligations toward: the client; the courts and
other authorities before whom the lawyer pleads the
client’s cause or acts on his behalf; the legal profession in
general and each fellow member of it in particular; the
public for whom the existence of a free and independent
profession itself is an essential means of safeguarding
human rights in face of the power of the state and other
interests in society.
It remains to be seen what role lawyers will take on through
transnational practice in the EU. However, the statements in this
preamble generally reflect the ABA’s sentiment that lawyers have a
duty not only to represent their client but also a duty to further
society.
One development that is shaping the legal profession in the EU
is the tendency of the EU courts (as opposed to the domestic, state
courts) to develop a common law. The use of precedent in these
courts is changing the ways in which lawyers interact with them
and in some respects European lawyers who are practicing in the
EU courts are developing the skills of common law lawyers, arguing
from precedent based on rule and prior authority’s rationale, and
sensing the increased lawyer role in shaping the law.
4. Russia
‘‘The Russian legal profession comprises procurators, advocates,
notaries and judges. In addition, there are non-advocate
private practitioners who work for companies, just as there are
government employed lawyers, other than procurators, who advise
governmental agencies. While all these diverse categories of lawyers
are [often discussed together,] they are really several separate
professions. This is in accord with the tradition in most civil law
countries and unlike lawyers in the United States, all of who are
members of the same ‘bar.’ ’’33
Peter the Great created the procuracy in 1722 to act as the
‘‘Eye of the Czar.’’34 Now, ‘‘the procuracy is a unified and
central-ized system of federal bodies charged with supervision over the
observance of laws on the entire territory of the country.’’35 The
Procurator General is appointed by the Federation Council on
nomination by the President for a term of five years.36 The Procurator
General then appoints lower level procurators.37 The procuracy
undertakes three major activities: supervision of state organizations,
criminal prosecution, and representation of the state in civil
proceedings.38
‘‘An ‘advocate’ is the principal lawyer in the Russian system
who is permitted to represent clients in court or out of court for a
fee. As might be expected, the types of economic and legal changes
that have taken place in Russia since 1991 have increased the need
for qualified advocates. The advokatura almost doubled its size
from 28,000 in 1988 to 48,000 in 2002.’’39 ‘Advocates’ have certain
responsibilities and privileges. Privileges include the right to use
the title ‘advocate’ and some tax advantages. Responsibilities include
complying with ethical rules, taking certain types of cases for
free or for a reduced fee, and refraining from all other gainful
activity except teaching, scholarly research and writing and ‘creative
work’ (writing, producing movies, etc.). This limitation on work
is rather striking. It would appear to prevent advocates from
becoming managers of businesses—work that lawyers regularly
perform in other countries.’’40
‘‘In all civil law countries, notaries represent a separate branch
of the legal profession. While in the U.S. a notary usually has
limited powers, such as administration of oaths to persons who sign
sworn documents or verification of signatures on such documents,
Russian and other civil law notaries perform many functions which
in the US would be done by lawyers. This institution is called the
notariat in Russian.’’41 Certification of legal transactions which
require stricter formal requirements in order to be valid is one of
the notariat’s most important functions.42 However, notaries also
certify wills and the accuracy of copies and translations.43 In doing
so, the notaries often provide legal advice and assistance.44
‘‘The legal status of all Russian judges is established by the
1993 Constitution and the 1992 Law ‘On the Status of Judges.’
Laws governing different court structures may contain additional
normative prescriptions concerning the status of judges.’’ For example,
the 1994 Federal Constitutional Law ‘‘On the Constitutional
Court determines the legal status and the process of appointment of
judges of the Constitutional Court.’’45 During the Soviet era, the
judiciary was considered ‘‘an arm of the prevailing ideology’’ and a
system that allowed dismissals assured the political allegiance of
the judges.46 Today, judges are appointed to serve for life or a
specified tenure in order to enhance their independence.47
Discussion Questions:
1–1: Lawyer knows that his client, Sandja, has committed the
crime with which she is charged. He advises her of all her
options but because the evidence against her is weak, he
tells her that he thinks she should plead not guilty. Has
Lawyer acted immorally?
1–2: Lawyer’s client, Dr. Nikoli´c, admits to Lawyer that he made
a mistake during surgery on one of his patients. His patient
is unaware of the mistake and has not yet suffered any
harmful side effects from the mistake. In fact, the odds are
good that whatever problems the patient does develop will
not be traceable to Dr. Nikoli´c’s mistake. Dr. Nikoli´c wants
Lawyer’s advice on how to handle this situation. If Lawyer is
a morally activist lawyer, what would she counsel Dr. Nikoli
´c to do?
1–3: Draft a ‘‘Preamble’’ for a code of lawyer ethics that expresses
your sense of the proper role of a lawyer and the legal
profession.