New Zealand’s first Legal Complaints Review Officer, Duncan Webb is a partner of Lane Neave in Christchurch. He is recognised as a leading New Zealand expert in lawyers’ ethics and professional responsibility.
Questions like what makes a good lawyer really are not fair. The person asking the question knows full well that it is full of ambiguity and that there is an underlying tension as to what it means to be “good” and “a lawyer” and whether in fact those two things can ever exist in the same person at once.
Let’s start with the most basic proposition: for a person to be good (whatever that means) there must be an absence of badness. At root a good lawyer needs to be competent – to be able to undertake the task of lawyering without mucking it up. A lawyer who is not competent is no use to anyone – and of course when prospective clients ask “do you know a good lawyer?” this is what they mean.
One of the reasons the law is so moreish is that it requires an unusual mix of skills to be really good at it. Not only does it require empathy and an understanding of human nature, but it also requires a high degree of objectivity and an analytical mind, an ability to research and collate fact and law, a high degree of energy and perseverance, outstanding judgement and on top of all of this that special magic of creative brilliance which sets an excellent lawyer apart from the rest.
Of course we don’t want evil lawyers. A lawyer who is dishonest is a bad lawyer. The archetype of the dishonest lawyer is the fellow with his fingers dipping into the trust account. Such unauthorised, secret, long-term loans are clearly impermissible and lead to striking off and a long residence at Her Majesty’s pleasure. However dishonesty rarely presents in such a stark manner. Lawyers tread a delicate line between frankness (to their client) and secrecy (to all others); candour to the Court, and standing by while the judge makes an error in the client’s favour.
While superficially it appears that a good lawyer should be honest, this may not be entirely true. I suspect that there are cases where a lawyer is expected to be deceptive, if not outright dishonest. A lawyer is sometimes required to engage in conduct which would not generally be considered admirable. For example, a lawyer may well present a negotiating position which is not entirely true (that is my final offer…), or take a stance that might be considered overbearing or even bullying (we will drag this through the courts for years…) So one client’s “good” lawyer might be considered a very bad person by the individual they are working against.
When we speak of the good lawyer sometimes well known characters spring to mind – like Atticus Finch. To Kill a Mockingbird is worth reading again and again. Of course if you have seen the movie Gregory Peck is portrayed as a brilliant trial lawyer (who inevitably loses given the context of the case). However not everyone agrees that Atticus makes a good lawyer. He is also a patrician who makes decisions on the basis of what he thinks best. Ultimately defending the case in the way he did may not have been best for Tom Robinson the accused. Tom is convicted, attempts escape and is shot dead.
Tim Dare of Auckland University argues articulately that Atticus is flawed.1 He cites the incident where Bob Ewell, (the father of the Mayella who Tom is accused of raping), is stabbed to death by Boo Radley (the odd reclusive neighbour) when Bob attacks Scout and Jem one night after the trial. The sheriff arrives on the scene and says that the death was accidental and Bob fell on his knife despite the obvious facts. This is presented as a fitting end and rounds out the plot with a sense that finally, in respect of Boo at least, justice is done. Implicit is the suggestion that there would be no sense in putting Boo (an outsider like Tom) through a flawed judicial process. The sheriff’s insists that Tom Robinson died for no reason and now the man responsible is dead: “Let the dead bury the dead” he says. Atticus reluctantly accedes.
Was Atticus a good lawyer, or did he stand by and let the sheriff usurp the entire American justice system? Was he again acting as a paternalistic lawyer and deciding for others what was best? Or perhaps, more worryingly, was he protecting his children Scout and Jem from the trauma of the inevitable trial in which they would be witnesses if the matter was dealt with by due process?
Of course Atticus is presented as a good lawyer not so much for his flaws (which at the time of authorship may well have been considered virtues). Rather he is presented as a moral hero and it is worth considering why. Most obvious is Atticus’ courage. He acted for Tom, a poor black man accused of raping a white girl in a deeply racist community. He did so despite the fact that he knew that he would be vilified and that it would be costly to both him and his family.
He is also portrayed as deeply empathetic (for example recognising that a young house guest was unfamiliar with cutlery and eating his peas off his knife to make him feel comfortable). He has outstanding judgement, and also considerable modesty. A telling anecdote is when he shoots, at considerable distance, a rabid dog. His children had no idea he was the best shot in town – a fact that tellingly Atticus is not proud of. Arguably this is an allegory for his humanity and humility. Not only did Atticus not brag of his marksmanship, but he took no pleasure in shooting the animal.
However probably the most heroic aspect of Atticus’ character is his apparent belief in the system. He worked hard and brilliantly for Tom and it becomes clear that Tom did not rape Mayella Ewell, rather she wooed Tom. Even when the jury inevitably convicts, Atticus insists that an appeal would right matters. Whether such unerring faith in the system was a virtue is moot – but there is a certain sense that Atticus knew his role within it and was prepared to fulfil his role strictly and absolutely whatever the cost.
Atticus was an exemplar and there are few lawyers who could approach the lofty heights of such literary heroism. However it is clear that any good lawyer need to have those attributes – courage, empathy, judgement, and a belief in the system – albeit in perhaps in slightly lesser measures.
I wonder what makes a great lawyer.
1. T Dare, “Lawyers, Ethics, and To Kill a Mockingbird”, Philosophy and Literature Volume 25, Number 1, April 2001.