The University of Texas at Austin

Law in Popular Culture collection

McGeorge Law Review 
Volume 31, Number 1 (1999)
reprinted by permission of the author and Law Review

The Sense and Sensibilities of Lawyers: Lawyering in Literature, Narratives, Film and Television, and Ethical Choices Regarding Career and Craft 
 

Carrie Menkel-Meadow *
 


We don't need another hero. We don't need to know the way home.1
 

I. INTRODUCTION

     In his moving book The Word and the Law,2 Milner Ball begins his discussion of the law with brief biographies of seven real lawyers. The Word and the Law explores the impulses that drew seven modern heroic figures to practice law. All are drawn to the law by the notion of achieving social justice. Included in Milner Ball's narrative is a biography detailing attorney Steve Wizner's decision to attend law school after reading a biography of Clarence Darrow, while others read a classic of the legal fiction canon, To Kill a Mockingbird.3 Likewise, Ralph Abascal, a pioneer and hero of legal services and champion of agricultural workers, claimed- just before his untimely death-that it was seeing the movie Inherit the Wind that caused him to redirect his studies from economics and toward law to fight for economic and civil justice.4
     Today's students are more likely to encounter lawyers through movies and television,5 or in popular best-selling legal thrillers by John Grisham or Scott Turow, than by what we like to think of as "high" literature. Milner Ball, like others 

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in the law and literature movement,6 or those who work with the new narrative studies of law,7 see stories and images of lawyers as an important part of what we both aspire to and know about the law and its practice.
     The humanistic study of lawyers views lawyers in their contextual complexity, making choices in fictional or real worlds that are layered with events, other actors, internal motivations, feelings and realized consequences of their actions. These worlds are often absent from the more abstracted discussions of legal reasoning and legal ethics taught through the conventional law school study of case law. To put it bluntly, these stories about lawyers reveal the subjectivities of -albeit sometimes fictional -"lived experience," in both the lawyers' internal life and the lawyers' effects on others. Not only the lawyers' clients, but court officers, adversaries and other third parties are affected by these lawyers' actions.8
     I believe that the images conveyed by literature-whether in high or popular culture, or in the written word or visual image-of lawyers in action are important to us because they reflect on the ethics and morality of lawyering.9 In this Essay I will explore examples from a variety of genres to illustrate the ethics and morality of lawyering.
     First, portrayals of lawyers in fictional narratives affect the career choices of many people. In the peak viewing period of the television series L.A. Law,10 applications to law schools generally, and my law school, UCLA, in particular, climbed to new heights.11 In the olden days of my youth, television programs like 

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Perry Mason and The Defenders presented noble pictures of lawyers fighting for truth and justice, often in the criminal justice system. Today's TV programs, movies and books are more cynical12 about lawyers, their goals (typically depicted as money and greed) and their methods (illustrated by deception, discovery abuses13 and extreme arguments).14 The most recent entry into the popular culture scene, Ally McBeal,15 is probably one of the first comedies to use the law firm setting, along with its unisex bathroom, to explore the comedic (and, in my view, pathetic) aspects of lawyering. Is it a coincidence that this is one of the first lawyer shows to "star" a woman lawyer, whose greatest dilemma is the length of her skirt?16
     By reading books and watching movies and TV, some young people, and older people considering career changes, decide whether they might want to be a lawyer, and then what kind of lawyer they might want to be-corporate, criminal defender, prosecutor, ambulance chaser, plaintiffs' class action lawyer or civil rights champion. Whether the portrayed and perceived motivations are money, status, power, glamour, prestige or justice matters. For those of us who teach, the images that students bring to their educations, formed in the crucible of media-watching and educational and recreational reading, are the "texts" against which we teach. As teachers, we counter those images with models we hope to project through our various methods of teaching- rational legal reasoning in the classroom, reflective practitioner in the clinic, and ethical decision-maker in professional responsibility courses.17
     Second, these depictions of lawyers affect how students and new lawyers experience both their legal educations and their first forays into legal practice. If a unique argument works in a story or on TV, it may embolden a young lawyer to try it (if the young lawyer works in a setting without a dictatorial hierarchy). Novels and movies that depict the individual heroism of American culture place a premium 

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on individual action, courage and bravery, not to mention the championing of unpopular causes and clients. Real life does not often present such opportunities, and the sociological organization of law practice even less commonly allows for individual action.18 
     As I discuss a few examples of literary treatments of lawyers, I will contrast them with a new genre of legal literature: the legal "bill and tell." These "bill and tell" stories are often disgruntled memoirs or journalistic reflections upon legal careers gone sour. This new genre demonstrates the great pains caused by the loss of individual autonomy and lost opportunities for heroism. This genre includes works such as Cameron Stracher's Double Billing,19 Paul Barrett's The Good Black,20 and William Keates' Proceed with Caution.21 These new books attempt to do for law practice what Scott Turow's 1L22 and John Osborne's Paper Chase23 did for legal education-tell a vivid story of competition by stressing the real-life experiences of the authors. Many of these authors have proceeded to write fictional accounts about lawyers and the legal system.
     Third, to the extent that literary and media portrayals of lawyers doing their work have been instructive about decisions made, actions taken and consequences suffered, narrative treatments of lawyers' work have become increasingly significant for those of us who teach legal ethics. The moral challenges faced by the lawyers in John Grisham's or Scott Turow's legal thrillers (or lawyers in Louis Auchincloss' short stories24 and the less well-known novels by Arthur Solmssen25) allow us to examine the decision process, the internal thinking and moral reasoning of the principal actors and those whose decisions are affected by the choices and 

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decisions lawyers make.26 The context is rich, actions are taken, decisions are made and the reader or viewer can form his or her own judgments about what has occurred-all without any harm having been done to real-world clients.
     Fourth, narratives about lawyers, in written or visual form, present us with assumptions about what lawyers and the legal system look like.27 Fictional treatments of legal institutions and lawyering are populated with more criminal lawyers, litigators, greedy ambulance chasers and deeply heroic defenders of causes than actually exist in real life. For the socio-legal realist instructor, it is often illuminating to contrast these fictional "assumptions" with empirical realities.28
     Recently, some of us have also found important lessons about lawyering in literary works which seemingly have little to do with lawyering. Kazuo Ishiguro's Remains of the Day,29 a story about a British butler in that classic of all literary times-the years between the "great wars" of the twentieth century-has become almost canonical in its use in legal ethics courses which explore the meaning of loyalty, craft and moral accountability between agents and principals.30 Some popular culture mavens also use films about the Old West to explore themes of justice, outlaws and the rule of law.31 In my own experiences, I have found TheScarlet Letter32 to be useful in teaching about occupational morality.33

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     In this Essay, I will explore a few examples of literature and other popular culture portrayals of lawyers (as distinguished from literature about law and more jurisprudential themes)34 from a variety of genres, and examine what those examples tell us about the "sense and sensibilities" of modern lawyers. I think it matters deeply what literary portrayals of lawyers tell us about ourselves, our students and the many would-be lawyers who are considering pursuing legal careers. Narratives taken from literature, the movies and television elucidate important ethical choices-at both the macro-level of choices regarding what kind of lawyer to be or career to pursue, and the micro-level of behavioral choices regarding what actions to take at specific junctures in one's career. 
     Literature illustrates and "teaches" us about ethics.35 William Simon once said that the "loss of moral agency is the most salient quality in modern literary portrayals of lawyers."36 To the extent that these portrayals might be accurate about modern legal life, it is important that our literature present alternatives of moral courage, or at least depict a dedicated sense of service to clients and society. In short, I disagree with Tina Turner; I think we do need heroes, as well as directions as to the way home, in order to motivate us to be the best we can be within our chosen profession. Consistent with William Simon's observation, the most recent realistic depictions of lawyers are cynical and less heroic than the portrayal of 

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Atticus Finch.37 For the most recent model of a possible hero in law, I had to turn to John Grisham's The Street Lawyer.38 This cultural change will provide the backdrop for the ensuing discussion of modern depictions of lawyers and lawyering.

II. THEMES OF CAREER CHOICE: THE ALIENATION OF THE MODERN LAWYER AND HERMAN MELVILLE'S "BARTLEBY THE SCRIVENER

     In recent years, I have begun my Legal Profession and Professional Responsibility courses with some admittedly idiosyncratic selections from "lawyer literature" to demonstrate the variety in the types of work that lawyers do. My intended purpose is clear (to me, if not to my students).39 My aim is to motivate students to consider the choices that are available to lawyers-the kind of work that one takes, the clients one represents, the regional setting in which one chooses to practice, the commitment to particular organizational settings or the making of that increasingly rare choice to become a solo practitioner.40
      I start with Herman Melville's short story "Bartleby the Scrivener,"41 a sometimes-staple of the law and literature diet.42 I begin the discussion of this story with what some would regard as a strange question: with whom did you identify in the story? For many modern students, there is no one with whom to identify in this story of an 1850's solo practitioner on Wall Street who requires the services of a scrivener to copy by hand the scores of corporate documents, wills, trusts, deeds, bonds, mortgages and indentures produced by his practice. This story was written before the era of typewriters and female secretaries, and certainly long before the advent of word processors and copy machines.
      When forced to choose, of course, a majority of students pick the lawyer in the story, though he is far older than virtually all of the students. As the seemingly benign narrator of the story, the lawyer seems kind and comfortable, and appears to enjoy his work. More importantly, he is somewhat of an important personage and powerful professional in the growth of the commercial practice of Wall Street, even if unadorned by the accouterments of the modern law firm. He is, after all, a lawyer 

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and a professional. Why would any law student "identify" with Bartleby, the (eventually) homeless, almost speechless, and seemingly powerless worker stuck on the lower rungs of the labor hierarchy of the nineteenth century? This is precisely why most students go to law school -- to be more than Bartleby. They aspire to be self- actualizing professionals, who choose their own work, who make a sufficient living in order to have a fine home and car and to take vacations, and who have some semblance of control over their lives. Certainly the modern law student and lawyer would never choose to live at the office. (However, we now know that many lawyers in fact do live at the office, but no one seems to want to speak those words out loud.)
     Students are stymied by the reactions of the narrator in this story to the increasing implacability of Bartleby, who "prefers not" to work anymore and ceases to complete his copying tasks, and then "prefers not" to leave the office at all. The narrator seems reluctant, at least initially, to officially "fire" or "evict" this now-unproductive employee for the employee's passivity and refusal to work. To allow Bartleby to stay on at the office seems the modern equivalent of permitting an unproductive worker to stay in his or her job too long, to allow a non-paying tenant to "hold over," or to hand some coins and bills over to the homeless individuals who populate the cement canyons created by modern law firm offices. While the lawyer- narrator in the story seems somewhat kind, at least in the beginning, he also seems mystified and helpless in the face of the greater "passive" power of his law clerk. Bartleby's story has been read by both lawyers and literary critics as an indictment of the "injuries" of the modern contract labor system,43 and of the deadening quality of the work depicted in the story.44
     Students are reluctant to see that, at least at the beginning of their careers, they are far more like Bartleby than the lawyer-narrator who assigns the copying tasks to his clerk. New law clerks and associates, in both litigation and transactional practice, are much more likely to be the passive recipients of assignments that are the modern-day equivalents of "copying" jobs: completing tedious research assignments, requesting and producing documents, performing "due diligence" on transactions, and redrafting or redlining form clauses and provisions contained in the endlessly churning pages issuing from overly productive fax machines, computers, printers and photocopy machines. Bartleby's depicted "fed-upedness" with the endless supply of documents to be copied seems to be similar to the prodigious disgorging of papers from modern machines now occurring at record speeds. If Bartleby's eyes narrowed and closed, therefore preventing him from "seeing" enough to allow him to work, I can literally "feel his pain" as I 

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contemplate the endless piles of modern-day pages and demanding deadlines faced by today's young associates.
     With the recent rash of "tell all" accounts of life in the large law firms, it is surprising to me that students do not identify more with Bartleby. Both Cameron Stracher's Double Billing45 and William Keates' Proceed with Caution46 use the modern genre of memoir to describe stultifying document productions and marathon brief-writing sessions that leave the young authors literally panting for life-some air, some exercise, some non-office time. In their accounts, these authors are, at least initially, like Bartleby: more-or-less passive acceptors of their workloads, taking orders from older male-and, these days, occasional female- partners or senior associates, all of whom have little or no time for real human contact with each other. These new lawyers spend virtually as much time "living" in their offices as Bartleby does. Even worse, these same new associates sometimes spend the initial years of their careers existing in the even more cramped quarters of airplanes, standard-issue business hotels or, worse, overheated or underheated warehouses in mind-numbing suburban industrial parks. The vivid depictions of modern document productions, taking place in virtually indistinguishable remote client offices where Detroit blends into Houston blends into Atlanta blends into Chicago blends into Los Angeles, actually make the nineteenth century offices of Bartleby's boss sound quaint and urbanely interesting.
     Only the former paralegals in my classes recognize that they may be the modern counterparts of Bartleby: receiving assignments from others and working long hours, all while not being fully involved in the case. They will be the modern-day scriveners, integral to the deals and helping resolve disputes to make the modern lawyer feel that he or she is "making things happen" in our post-modern, post- industrial society. Indeed, it will be a very long road for the few of them who will ascend the upper rungs to partnership in the modern, big-city firm.
     The modern "scriveners" who have thus far written about life in the law firms of today are obviously the unhappy ones-they have taken the time to write about their experiences and, like Bartleby, they are able to "prefer not" to work for their senior lawyers anymore. Fortunately, unlike Bartleby, they do not have to choose death to avoid legal work. These books have clearly been written to tell a story about modern-day lawyering and to encourage other young lawyers to "choose" not to follow these career paths.
     Some literary critics have suggested that Bartleby, like his creator Herman Melville, has had a nervous breakdown in the face of mind-numbing hard work (while suffering from bad eyesight) and, in Melville's case, the added stress of supporting an extended family. Both Bartleby's and Melville's experiences resonate with Charles Reich's experience, which he depicted in his book The Sorcerer at

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Bolinas Reef.47 Like Bartleby and the modern-day law firm refugees, Reich was among the first to "prefer not" to work in the seemingly prestigious and powerful world of the large law firm-he felt stifled by the rigidity of work rules, dress, routines and power hierarchies. This was in contrast to what had been, for him, a life-enhancing engagement with the deep questions of law and justice as a law student and Supreme Court clerk, which evaporated with the detachment and impersonality of the large law firm. Reich describes himself and his workmates as "victims of our work."48 In his words: 
Our work was detrimental to us.
. . . 

The atmosphere in the firm was so often full of tension, overconcern, and uncomfortable pressure . . . .
. . . 

Questions of justice, wisdom or good policy were irrelevant for lawyers.
. . . 

The lawyer's life had a fundamental lack of limits.
. . . 

I think that even worse than the violation of the spirit was the destruction of consciousness. Few people respected my right to have my own thoughts and feelings for very long.
. . . 

Could one make a life out of this? Could one be a hired knife-thrower and enjoy it? For what pay and for what prestige could it make sense for a person to spend his days this way?49
Reich left the practice of law to become a brilliant and creative law professor (and the creator of the idea of the New Property50) who also told one of the first "coming 

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out" stories in modern legal literature. To this interesting and complex person, who was committed to issues of justice at both the societal and the individual levels, modern law practice was a great disappointment, and he walked away, eventually returning to teaching law after a long absence.
     Bartleby was ultimately not totally passive in his choices-eventually, he "prefers not" to live. In contrast, the narrator passively accepts Bartleby's resistance to him, offering him food, money and his -the narrator's -own home. We cannot really know if the narrator is motivated by kindness, frustration or a need to do something to change the new and unpleasant situation of having an unproductive permanent fixture in his office. Eventually, the "law" and other individuals take over; Bartleby is evicted and dies in the Tombs, an anonymous representation of "Humanity." The narrator returns to his more familiar world of legal documents, even as we, the readers, know that his own form of legal practice and way of life are soon to be destroyed by the coming of the modern Wall Street law firm.
     These stories, and others like it that I use, are depressing stories about the law. Students are anxious to get on with their professional development and learn the rules of law and the intricacies of practice; such students do not like to hear about the life-depleting ways of practice and work. They cannot identify with Bartleby because they do not believe they are the contracted labor of the ninteenth century; instead, they insist that they are like the professionals of the twenty-first. They will work on important corporate deals, conduct litigatation on behalf of major companies and help decide the fates of nations. Never mind that they will soon learn about the proletarianization of the professional class.
     Still, I persist in seeing these tales, both fictional accounts and those of the equally powerful new genre of legal memoir, as expressing somewhat accurately some of the senses and sensibilities of modern legal work. These accounts and memoirs show us why it is necessary to study the importance of choice in our professional careers. Bartleby says he "prefers not" to copy, to move, and eventually to eat and to live- all, we assume, because of the life-numbing and alienating qualities of his work- life. Can today's legal professionals find and choose meaningful work? 

III. THEMES OF CAREER CHOICE: SOCIAL JUSTICE FROM HARPER LEE'S TO KILL A MOCKINGBIRD TO JOHN GRISHAM'S THE STREET LAWYER

     There are models in literature and life of the freely chosen, non-alienated work of lawyers. Since George Eliot's long meditation on the ethics of vocation in her classic novel Middlemarch,51 we have seen professionals who choose to commit themselves to the individual service of clients or patients while being concerned about the larger societal effects of their projects. In Middlemarch, Dr. Lydgate, the 

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modern "enlightened" doctor, wants to apply new scientific principles to the care of his patients and wants new institutions to develop to provide these services. Dr. Lydgate cares about both the particular and the general welfare. He is a visionary, if ultimately unsuccessful, in his youthful exuberance; but, clearly to the author, Eliot, Dr. Lydgate is alive and professionally engaged. He is not alienated from his work; rather, he has sadly chosen the wrong life partner with whom to share his vision. This important point is made none-too-subtly by Eliot: that the choice of life partners may also deeply affect the professional choices we have made and the aspirations we attempt to realize. In Eliot's literature, as in the blistering satires and caricatures of Dickens, values in the law and in one's chosen profession matter. People choose which institutions and people to affiliate themselves with and which careers to pursue, and ultimately bear responsibility for the consequences of their acts and choices.
     Perhaps the most revered lawyer in modern literature is To Kill a Mockingbird's Atticus Finch, the small-town lawyer with integrity and professional skill.52 I will not dwell on him here; others have done far better than I could.53 However, I do want to suggest that Finch did not really choose the representational act that is the cornerstone of To Kill a Mockingbird. Rather, he is a court-appointed lawyer for the black man accused of sexually assaulting a white woman. Still, he does make decisions regarding what to do with the case and how to relate to his family and others who are affected by the case, all of which are clearly a part of the larger matrix of professional choices he has made from the beginning of his career. Part of the ethical teaching of Atticus' story is that we do not often get the chance to make "big" ethical decisions that are dramatically different from the many daily choices we make. When those rare "big" moments come, our reactions to them are deeply informed by those "habits" of character formed in the dailiness of our ordinary ethical decisions. Atticus is his own person, with commitments to the legal system, to a "natural" law of justice that is bigger than, and certainly different from, the institutionalized law in his particular local legal setting. He is kind, honest, firm and clear. For those of you who have managed a legal education without having read this book, you must read it. And, if you have missed it, I believe that Sam Waterston's character on the recent television series (now repeating on PBS) I'll Fly Away54 is modeled, at least in part, on Atticus Finch-the somewhat-reluctant civil rights lawyer in a small southern town, trying to raise his children to care for their community and to do what is right. 

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     The worlds of To Kill a Mockingbird and I'll Fly Away are not easy to live in. There are no plush modern law offices. Small towns can be every bit as stultifying as the large cities in which modern law firms are found. Furthermore, working alone on cases to which you have been appointed is not easy, especially when most of your friends are against you. This kind of practice has virtually disappeared from modern legal professionalism,55 but the story of Atticus Finch continues to inspire new generations of young lawyers.
     I particularly like to emphasize the "choices within non-choices" aspects of these stories. Modern lawyers, like those depicted in Scott Turow's compellingly realistic novels56 and in the television series The Practice,57 work in the partially unchosen parts of law practice. These lawyers toil in the grit of criminal cases, labor as prosecutors and state-salaried attorneys, answer to demanding judges and accept court-appointed cases. These judges demand appearances, ask lawyers to take cases they do not particularly desire to accept, and require lawyers to go places that are often unpleasant (for lawyers, parties and judges; these places are often jails, public housing projects, schools and hospitals).
     Nevertheless, these lawyers still demonstrate a faith in something larger than themselves, and they exhibit care for their craft. They are heroes of the legal system as they explicitly speak about and justify their work based on the need for all to have representation, due process, a fair hearing and their "day in court," or simply based on the fact that they are representing individuals in need. Recent episodes of The Practice depict the former wife of Eugene, one of the attorneys, seeking sole custody of their son because of the bad influence she believes Eugene's criminal law practice is having on the boy.58 Their son has been discovered selling drugs and promising a friend that his lawyer-father can get anyone off. Eugene and his partners proceed to engage in probably the longest and most explicit discussion examining the role of criminal defense lawyers since the publication of an earlier legal memoir, James Kunen's "How Can You Defend Those People?" The Making of a Criminal Lawyer.59 Eugene does not lose his son, and-for the first time in a long time in popular legal culture-the value of the criminal defense lawyer is examined and explained by Eugene, his partners, his son, his wife and, of course, by viewers such as ourselves. Criminal defense lawyers who sometimes associate with bad people nevertheless can be good parents. The world is filled with evil, and 

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fathers and sons (and the rest of us) must realistically learn how to navigate this world by asking, "What is 'wrong?' What is proper personal responsibility? How does a job affect one's family, one's values and one's personal life?"60
     In the literature about choice of career, a surprising recent entry is John Grisham's The Street Lawyer,61 one of the few recent treatments of admirable lawyers. The narrator, a successful soon-to-be partner in a Washington, D.C., law firm, is held hostage by a homeless man who seeks to learn how much money his lawyer-hostages have given from their vast sums of salaries and perks to the homeless or other needy people and causes. When the homeless man dies, our hero combines a fast-paced Grisham formula62 with a search for his own inner worthiness. His marriage with a hard-driving modern female professional, a doctor, crumbles under the weight of his absence. This occurs just as he discovers the venality of his law firm's involvement in illegal eviction proceedings against the dispossessed.
     Whatever can be said for the sincerity of the hero and the realism of the plot, Grisham himself studied with and did research for his novel at the Washington Legal Clinic for the Homeless, and in the character Mordecai Green (and eventually in his lead character, Michael Brock), he creates one of the truly modern heroes of the legal profession. Green has chosen to be a poverty lawyer and spokesperson for the homeless. He does so at some personal financial sacrifice, but we know he is not alienated from his work. He believes in what he is doing, and we have no doubt that he is "doing right." In my view, Grisham successfully provides some of the most compelling and vivid testimony regarding the lives of homeless people, the conditions of shelters, the mobility and uncertainty of life on the streets, and the heroics performed by the lawyers, social workers, dedicated police officers and a few caring politicians who actually attempt to make the world a better place. His story contains litigation and advocacy, as well as depictions of communities organizing and participating in demonstrations. However, the story also illustrates the promise of transactional work-using and raising capital to fund rehabilitation projects, as well as the building of more housing and the search for more social services. The paralegals of this story are no Bartlebys: paralegal Sofia Mendoza knows more about getting things done than almost all of the professionals in the novel, while Hector Palma, another law firm paralegal, "smuggles"- at great personal risk-the information needed to discover what the "evil" corporate landlord is doing. This is modern courage.

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     The Street Lawyer63 presents a lawyer seemingly in the grip of big firm practice, ready to engage in the now-classic behaviors of tough, adversarial lawyering and manipulation of discovery and facts. The main character, Michael Brock, decides to leave his firm and start a new professional life with the 14th Street Legal Clinic, apparently rapidly learning the decidedly different skills of poverty lawyering.64 Brock commits some classic ethical violations when he steals a client file and reveals client confidences. Unfortunately, author Grisham does not really seem to know enough about real legal ethics to get the disciplinary procedures right or to imagine the defenses or justifications that Brock might use to defend himself (i.e., disclosure to prevent serious bodily harm or injury and rectification of client fraud).65 However, Grisham does attempt to present the larger ethical issues concerning the uses to which a legal career can be put. This book, which has remained on the fiction bestseller list for as long as Grisham's usually do, presents homelessness as a serious social issue about which lawyers can and, Grisham seems to suggest, should do something.66
     Unlike the heroic tales of yore, this modern lawyer tale ends not in a trial, but in a settlement conference,67 albeit with a structured settlement and an unrealistic 

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"split the difference" bargain detailing a temporary bar suspension.68 Perhaps even more interestingly, the eighty-year-old senior partner at Brock's former law firm also sees the "social justice" light at the end of this particular tunnel. He comes to visit young Brock in his new role as "lawyer/social worker" because he can no longer sleep after fifty-six years of conventional big firm law practice. His firm has been responsible for the deaths and wrongful evictions of many innocent people. Arthur, the senior partner, decides he can expiate his guilt at the age of eighty by requiring all 400 of his lawyers to perform mandatory pro bono service.69 Furthermore, Arthur is persuaded to rehire the paralegal who originally facilitated the stealing of the important and incriminating law firm file, and make him the permanent coordinator of the firm's pro bono projects. All of this happens with typical Grisham-like alacrity and vivid drama-hardly the subtlety of the many difficult and morally complex decisions that Atticus Finch makes in his representational choices. However, these choices are still different from those of the typical legal thriller. Wrongs are righted, and lawyers at least attempt to address difficult and messy equal-justice issues, all without the usual ending fanfare of the jury verdict. While other modern mysteries and lawyer books of popular culture demonstrate craftsmanship and "good" lawyering in the sense of skills, The Street Lawyer is one of the few modern novels to dramatize the work of the lawyer seeking social justice.70

IV. THEMES OF ETHICS AND CRAFT

     When lawyers (or non-lawyers, for that matter) make their peace with their choice regarding what kind of lawyer to become, they then must face the inevitable choices within that choice: how to go about doing their work. Literary sources have been particularly helpful in illuminating those difficult and dramatic "choice" points in the professional's life. Most evocative among this literature has been the depiction of Stevens the butler in Kazuo Ishiguro's The Remains of the Day71 as the personification of the perfection of craft-the perfect servant who does his 

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employer's bidding without much reflection upon the ends to which his service is put. For ethics teachers, Stevens is the ultimate "agent" to a "principal" who clearly has inappropriate ends.72
     Ishiguro's depiction raises important ethical issues about when the agent may "judge" the principal and when good service is, in fact, bad service. Stevens slavishly adheres to duty, for, as he sees it, "[a] butler's duty is to provide good service. It is not to meddle in the great affairs of the nation."73 This "duty," as he sees it, causes him to do several things which we, as readers, are likely to find abhorrent. He follows the order of Lord Darlington, his employer, to fire two Jewish housemaids before some important German dignitaries (and officials of the Nazi regime) are to be entertained at Darlington's country house. During the important meeting itself, he is so consumed with his service duties that he foregoes visiting his dying father (the death of whom is a harbinger of the many "unnoticed" deaths to follow in World War II and the Holocaust). Furthermore, he is so intent on doing his duty and following orders that he cannot imagine any morality apart from his identification with his employer. His unrelenting adherence to duty prevents him, sadly, from seeing the possibility of love and affection with and for Miss Kenton, the housekeeper. Stevens, the consummately skilled technician, fails to see both the larger moral system in which he is implicated, as well as the small circle around his own personal being. He is Technique without a moral soul on either the global or personal level. Craft perfectionism has emptied him of any meaningful personhood. His excellence of craft justifies his stance toward the world around him, both regarding the people he serves and the people he might have served and loved (and who would have loved him back).74
     While not in any way a story about lawyers, Remains of the Day demonstrates the morality of means and the non-accountability of the agent. Such a presentation could not be better made in a legal text. Indeed, as I have suggested above, it is precisely because it is located in a beautifully written and contextually rich fiction that the arguments made in this novel are, perhaps, better made in Remains of the Day than in a dry law review article.75 Of course, the argument that such non- 

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accountability of the agent empowers the principal is dramatically realized here and makes counter arguments difficult. How is a butler to judge a lord? How is a lawyer to judge a client? When should a lawyer refuse to use his or her craft or technical skill? Legal ethicists (and I am one of them) have long argued that agents and principals should discuss the use of the professional's craft, engaging in what some have called a "moral dialogue"76 about the use of such craft and skill. Rob Atkinson, in his commentary on this novel, suggests that Stevens would have been well- advised to discuss the uses of his craft with both his employer and superiors as well as his colleagues and fellow servants.77
     Louis Auchincloss, another teller of aristocratic tales, has provided an instructive example of such a moral dialogue about the use of craft. In his novel Diary of a Yuppie,78 Auchincloss describes an ideal setting in which to examine how the moral dialogue of professional colleagues is marked by different ethical commitments to profession, to clients and to fellow human beings. This description beautifully represents the clash of the older, more gentlemanly approach to law practice, pitted against the more brutish and rapacious aggressiveness of the younger lawyer who must "kill" so he or she can "eat." 
     In a portion of Diary of a Yuppie, the fictional character Robert Service, a thirty-two-year-old associate, is about to make partner in his 150-lawyer law firm circa 1980. He is a specialist in that most modern of crafts--the corporate takeover. His client, Atlantic Rylands,79 seeks to aggressively take over Shaughnessy Products. The parties to the takeover are engaged in a mutual "scorched earth" strategy. Using the common strategy "all is fair in such warfare," Mr. Service (at your service, Mr. Client) conducts a "routine" search of his target's discarded garbage. He learns 

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through this search that the brother of the target's president is an alcoholic who has remained on the company payroll and whose debts have been paid, with company funds, by his president-brother. What's the problem? Mr. Service seeks to facilitate a takeover settlement by threatening to press suit, via a shareholder derivative action, to cause Shaughnessy's President to be removed on the basis of this "embezzlement." The trouble is that Mr. Blakelock, Service's supervising partner, decidedly of the old school, knows the President and the President's alcoholic brother (Blakelock belongs to the same country club and plays golf with them), and does not want to destroy them. He actually thinks that Albert Lamb, the President of Shaughnessy, is a good human being for taking care of his needy and psychologically troubled brother. 
     What's more, he does not like the slightly sleazy, if marginally legal, "abandoned property" search that produced the relevant evidence. He does not believe that the adversary system justifies any and all means. "You'd really sling that kind of mud, Robert?" he asks. "It's legal mud," is the retort. Mr. "B" says, "There is no place in my practice for obscenity," (and he clearly knows it when he sees it). Mr. B dismisses the associate Service with shock regarding his "amorality" and sends him home to his wife, whom he assumes will agree with Mr. B. Wives and women, of course,80 are better keepers of the ethical hearth than rapacious and greedy young men. 
     The plot thickens. Alice Service, like a good Gilliganite,81 is also concerned with the ethics of relationships. However, her concern is not only for the danger to the targets-she also does not want her husband to upset his boss. Service delivers a lecture to his wife, complaining that neither she, a non-lawyer, nor Blakelock, one who is ready for "benching," understands modern legal practice: "[i] t's all a game, but a game with very strict rules. You have to stay meticulously within the law, the least misstep, if caught, involves an instant penalty. But there is no particular moral opprobrium in incurring a penalty, any more than being offside in football."82 The Atlantic Rylands takeover fails, but not before Albert Lamb, the President of Shaughnessy, loses his job. Mr. Blakelock has lost his friend, and other lawyers in the firm tell Service he was not aggressive enough.
     Eventually, Service leaves the established firm of nineteenth century aristocrats living by a dated code of ethics, and joins a younger and more aggressive group. His precious marriage fails as well. For the rest of the story, you will have to read 

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the book. Still, Auchincloss' message is clear (and is present throughout many of his legal stories): the aristocracy may have been exclusionary, but it did have a gentlemanly code of ethics--the means and uses to which a craft could be put did matter. Both Auchincloss and Mr. B lament the passing of the old ways. Mr. B's moral dialogue forced Robert Service to abandon his planned aggressive tactic, but now Mr. Service is in his own law firm, of more modern means and, presumably, of more modern legal ethics.
     Modern treatments of lawyers are much more likely than "traditional" stories and novels to depict the various forms of the aggressive usage of craft. In a fictionalized treatment of Alan Dershowitz' involvement in both the Mike Tyson rape trial and the O.J. Simpson murder trial, a rising young basketball player is accused of rape, and Dershowitz' alter ego, Abe Ringel, engages in every form of aggressive criminal defense known to humankind (forms that are objected to by women such as Ringel's feminist daughter, Emma). From bad and overly directive interviewing83 to strategic use of the media, disingenuous jury selection, the use of perjurious testimony and the cross-examination of a truthful witness,84 Alan Dershowitz' The Advocate's Devil85 reads like a textbook in criminal legal ethics for the morally challenged. Dershowitz clearly intends a fictional depiction regarding his otherwise "real crime" defenses of both his own tactics (though he is almost always an appellate, and not a trial, lawyer) and other justifiable defense strategies meant to put the ever-powerful state to its burden of proof. His protagonists knowingly admit that they are "tiptoeing through a lot of ethical tulips."86 Not surprisingly, the "guilty" defendant is found not guilty, but the novel does not end until the successful defense lawyer is put through several other challenging moral tests (where his own family is affected), including the controversial ethical rule about revealing client confidences to prevent serious bodily harm.87 I will not reveal the end, but in reading this book one cannot help considering not only the rich, yet starkly, presented ethical dilemmas in terms of the litigators' craft, but also wondering how the author really feels about the use of his own considerable craft in the acquittal, reversal and release of a variety of known malefactors he has represented. The skillful use of craft ultimately does return us 

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to the questions of choice and accountability raised by Stevens, the butler, and Michael Brock, the street lawyer.
     Before I conclude, I would like to briefly focus on two final lawyer narratives that demonstrate ethical choices in the use of craft. In these works we find ourselves inside the heads of two "actual" lawyers: one fictional, one real. Mitchell Stephens, Esq., is the self-proclaimed angry and "pissed off" personal injury lawyer of The Sweet Hereafter.88 He honestly tells us about his motivations, his crummy personal life, how he actually "chases ambulances" to solicit plaintiffs, how he plans his strategies and how he "shapes" his witnesses and clients. "There are no accidents," he says. In effect, someone is always to blame; someone did or did not do something, and the lawyer's job is to figure out on whom he or she can affix blame and then collect-for the client and, of course, for the lawyer. While this powerful novel is really about the unknowability of "truth" and "facts" and what really happened, we, the readers, see the workings of the lawyer's craft and the lawyer's development of a single story (when, in fact, there are many "stories") regarding the fatal bus accident which kills many children from a small town in upstate New York. To develop a "legal story" that will work, either in a provoked settlement or in a sympathetic presentation to the "right" jurors, the modern lawyer is a narrative craftsperson and, like the author of legal fictions, develops a theory of the case that will "sell" to juries, if not to readers. Mitchell Stephens selects his deep pockets, decides there is no gain in blaming the community bus driver, and decides to purposefully alienate a possible "spoiler" of his legal theories-a potential plaintiff and grieving father, whom he needs as a "neutral" witness, not an interested plaintiff. Unfortunately, Stephens is a grieving father himself, and therefore the irony of his work and the "loss" of his key witness-as she decides to tell her own story to right her private wrongs against her own father-is not lost on us. Mitchell Stephens tells us that he is not unlike that other Stevens, the butler, in that he is a craftsman: 
Everyone has a specialty, and I guess this is mine. For twenty-five years now, . . . I've been the guy who handles these disaster negligence suits. . . . Nothing else provides me with the rush that I get from cases like this. 
. . .
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It's almost like a drug. It's probably close to what professional soldiers feel, or bullfighters.89 
Mitchell Stephens plans his legal strategy, determining on whom to place blame and who will testify to what-the "truth" doesn't matter, for, as we the readers know, the "truth" of the cause of the accident is unknowable. But other "truths" will have their ways with this story, as one of the injured daughters decides the lawsuit is a bad idea, and she figures out how to destroy the lawsuit and get "justice" for her own private harms. The lawyer's machinations "don't amount to a hill of beans" in this world and, despite his craft and previous successes, this lawyer cannot control his "story."
     Containing the stories and perspectives of a variety of participants, this novel contrasts sharply with a recent effort by a skilled litigator and ethics teacher to justify with a moral force the lawyer's art of narrative. Steven Lubet argues that the lawyer uses his or her craft to construct a narrative that will tell a better "truth" than the layperson can construct without the lawyer's help.90 Extending and fictionalizing a real altercation of his own, Lubet presents a compelling case that shows how the lawyer, who knows how "stories" will sell to juries or to adversaries across a settlement table, asks skillful questions to elicit a story that is both believable and consistent with the legal requirements of the elements of a cause of action. In convincing and unfolding prose, Lubet reports the known facts of the incident, imaginatively presents the types of interviews to which both parties likely will be subjected by the opposing counsel in a prospective criminal or civil assault case, and suggests that only factual consistency and a truthful and moving story will actually work. (We must imagine the motives and replies of the potential defendant who has theoretically assaulted Professor Lubet.) Lubet's is an adept piece of advocacy, and most of the story seems quite believable. Unfortunately, the story belies the lawyer's crafty approach to truth.
     We learn in the original telling of the story that the assailant was wearing an American Legion hat, as recounted by the author during an imaginary conversation between the defendant and the defendant's lawyer. But the fact of the American Legion hat's existence emerges from the Epilogue, which recounts Lubet's actions subsequent to the alleged assault. It is "true" that the defendant was wearing an American Legion hat, but the plaintiff has learned this after the incident, in his own informal investigation and discovery, and then uses this fact to create an impression of aggressiveness on the part of the potential defendant. I do not doubt any of these facts or the "truth" of the story; but what it illustrates is that lawyers will "use" anything they can to make their story seem more believable, and thus they may 

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indeed persuade themselves of the story's veracity.91 As we "know" from The Sweet Hereafter, we often don't really know the facts, yet lawyers will tell themselves, and sometimes their clients and witnesses, whichever stories are most likely to work. Lubet's moral justification of narrative may work in his own story because he has proved himself "right" in this instance with that story. Likewise, Banks' character in The Sweet Hereafter, Mitch Stephens, shows that when the facts can't truly be "known," lawyers will manipulate them.

V. CONCLUSION

     The irony in the exploration of the role of literature and narrative in the sense and sensibilities of modern lawyers is that lawyers themselves use literature and narrative. Literature and narrative are part of the craft they use to present their cases, exist in the stories they tell themselves to litigate those same cases and, more recently, are part of their own stories, which they relate to us.92 The stories interpreted in this Essay illustrate the variety of choices that lawyers face, choices about what to do with their careers and how to use their professional craft. Like others who have analyzed the literary canon for knowledge and empathic understanding of lawyers and legal institutions,93 I believe that the examination of stories about lawyers, and stories told by lawyers, illuminates the ethical choices lawyers make, both about the fields of law in which they practice and in how they practice within those fields.94 
     This brief review of an unrepresentative sample of narratives depicting lawyers reveals that lawyers and professionals in the modern age have complex senses and sensibilities about their work. Confusion or disagreement about the uses to which craft and professional excellence should be put, and how professional skills should be used, demonstrates that, at the turn of the century, we have little agreement about what appropriate sensibilities are. No fewer than five organizations are continuing 

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their attempts to define ethical codes, rules and standards for lawyers.95 This confusion regarding the proper use of craft exists, in part, because we no longer inhabit (if indeed we ever did inhabit) the homogeneous community of Louis Auchincloss' New York law firms or Atticus Finch's individual world of personal integrity. Nevertheless, it seems clear that such stories and depictions of lawyers matter -- both because these stories reflect what we think about lawyers, and because they can shape what readers, viewers and would-be attorneys may think about lawyers in the future.96 I think it is time for a few more "heroes" who can indeed show us "the way home." For those of you who are contemplating becoming lawyers, you should be careful in choosing your career, how you use your craft and, ultimately, how you live your life, for perhaps a few of you will even write the heroic stories of the future. 

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ENDNOTES

* Professor of Law, Georgetown University Law Center; Phyllis W. Beck Visiting Chair in Law, Temple University Law School, 1999. This paper was originally presented as part of University of the Pacific, McGeorge School of Law's Distinguished Speaker Series on April 15, 1999. Thanks to Michael Vitiello for a second invitation to visit McGeorge, to Robin West, my friend, colleague and teacher in matters literary and jurisprudential and to Meredith Weinberg, for superb research assistance. 

1. Tina Turner, We Don't Need Another Hero, on SIMPLY THE BEST (Capitol Records 1991).

2. MILNER BALL, THE WORD AND THE LAW (1993).

3. HARPER LEE, TO KILL A MOCKINGBIRD (1960).

4. Tim Golden, Ralph Abascal, 62, Dies, Leading Lawyer for the Poor, N.Y. TIMES, Mar. 19, 1997, at B11.

5. For a discussion of lawyers as they are portrayed in movies and on television, see PRIME TIME LAW: FICTIONAL TELEVISION AS LEGAL NARRATIVE (Robert M. Jarvis & Paul R. Joseph eds., 1998) [hereinafter PRIME TIME LAW]; Anthony Chase, Lawyers and Popular Culture: A Review of Mass Media Portrayals of American Attorneys, 1986 AM. B. FOUND. RES. J. 281; Lawrence M. Friedman, Law, Lawyers and Popular Culture, 98 YALE L.J. 1579 (1989); Stewart Macaulay, Popular Legal Culture: An Introduction, 98 YALE L.J. 1545 (1989).

6. James Boyd White is often considered the "father" of this school of thought, which sees law as a study of humanities rather than the "science" of Langdell or the social science of the legal realists. For further discussion of this school, see generally JAMES BOYD WHITE, ACTS OF HOPE: CREATING AUTHORITY IN LITERATURE, LAW AND POLITICS (1994); JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW (1985); JAMES BOYD WHITE, THE LEGAL IMAGINATION (1985). Others have also written extensively on this topic. See, e.g., RICHARD WEISBERG, THE FAILURE OF THE WORD: THE PROTAGONIST AS LAWYER IN MODERN FICTION (1984); ROBIN WEST, NARRATIVE, AUTHORITY, AND LAW (1993) [hereinafter WEST, LAW]; Robin L. West, The Literary Lawyer, 27 PAC. L.J. 1187 (1996). For a different view of both the role of literature in teaching law and legal institutions and the role of literary studies in legal interpretation, see generally RICHARD POSNER, LAW AND LITERATURE: A MISUNDERSTOOD RELATION (revised ed. 1998).

7. E.g., LAW STORIES (Gary Bellow & Martha Minow eds., 1996).

8. I have called this the "ethical externalities" produced by lawyer behavior-work performed by lawyers for clients that affects others outside the lawyer-client relationship. For an extended discussion of this theory, see generally Carrie Menkel-Meadow, Toward a Theory of Reciprocal Responsibility Between Clients and Lawyers: A Comment on David Wilkins' Do Clients Have Ethical Obligations to Lawyers? Some Lessons from the Diversity Wars, 11 GEO. J. LEGAL ETHICS 901 (1998).

9. For a few of the most important accounts of how literature and stories illuminate issues of professional ethics, see generally ROBERT COLES, THE CALL OF STORIES: TEACHING AND MORAL IMAGINATION(1989); THOMAS L. SHAFFER, AMERICAN LEGAL ETHICS: TEXT, READINGS, AND DISCUSSION TOPICS(1985); RICHARD WEISBERG, POETHICS AND OTHER STRATEGIES OF LAW AND LITERATURE (1992).

10. L.A. Law (NBC television program).

11. I do not claim here a causal relationship between the success or popularity of particular TV shows or movies and applications or admissions. Others do, however, and an interesting set of empirical studies attempts to explore these questions. See CHARLES LONGLEY, LAW SCHOOL ADMISSION COUNCIL REPORT, LAW SCHOOL ADMISSIONS, 1985-1995:  ASSESSING THE EFFECT OF APPLICATION VOLUME (1998); LINDA F. WIGHTMAN, LAW SCHOOL ADMISSION COUNCIL REPORT, LEGAL EDUCATION AT THE CLOSE OF THE TWENTIETH CENTURY: DESCRIPTIONS AND ANALYSIS OF STUDENTS, FINANCING AND PROFESSIONAL EXPECTATIONS AND ATTITUDES (1995). However, others attribute the increase in law school applications to a disillusionment with business following Wall Street scandals or collapses. It would also be interesting to trace medical school application rates through the periods of viewing of St. Elsewhere, Chicago Hope and ER--some of the most popular shows on television. Applications to law school may be more "elastic" than applications to medical schools, because there are virtually no major requirements or prerequisites to law school, except the taking of the LSAT.

12. See Michael Asimow, Bad Lawyers in the Movies, 24 NOVA L. REV. (Winter 2000) (discussing the cynical view of lawyers today).

13. See, e.g., CLASS ACTION (20th Century Fox 1991) (depicting discovery abuses in civil litigation); THE VERDICT (20th Century Fox 1982) (portraying lawyers who blatantly misuse the discovery process).

14. See, e.g., The Practice (ABC television program) (demonstrating lawyers who utilize some of the most outlandish and "over-the-top" legal arguments).

15. Ally McBeal (Fox television program).

16. For a discussion of women lawyers and their portrayal on television, see Christine Alice Corcos, Portia and Her Partners in Popular Culture, 22 LEGAL STUD. F. 269 (1998), and Christine Alice Corcos, Women Lawyers, in PRIME TIME LAW, supra note 5.

17. See generally Carrie Menkel-Meadow, Can a Law Teacher Avoid Teaching Legal Ethics?, 41 J. LEGAL EDUC. 3 (1991) (explaining that legal ethics permeates all law school courses).

18. For descriptions of the empirical reality of law practice, see LINCOLN CAPLAN, SKADDEN: POWER, MONEY AND THE RISE OF A LEGAL EMPIRE (1993); MARC GALANTER & THOMAS PALAY, THE TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM(1991); MICHAEL KELLY, LIVES OF LAWYERS: JOURNEYS IN THE ORGANIZATION OF PRACTICE (1994); ROBERT NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM(1987); CARROLL SERON, THE BUSINESS OF PRACTICING LAW (1996); EVE SPANGLER, LAWYERS FOR HIRE: PROFESSIONALS AS SALARIED EMPLOYEES (1986). For less empirically based meditations and speculations on what is wrong with the legal profession, see MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); ANTHONY KRONMAN, THE LOST LAWYER (1993); SOL LINOWITZ, THE BETRAYED PROFESSION: LAWYERING AT THE END OF THE  TWENTIETH CENTURY (1994).

19. CAMERON STRACHER, DOUBLE BILLING (1998).

20. PAUL BARRETT, THE GOOD BLACK: A TRUE STORY OF RACE IN AMERICA (1999).

21. WILLIAM KEATES, PROCEED WITH CAUTION: A DIARY OF THE FIRST YEAR AT ONE OF AMERICA'S  LARGEST, MOST PRESTIGIOUS LAW FIRMS (1997). For a more scholarly work in this genre, see Patrick Schiltz, On Being a Happy, Healthy and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 861 (1999).

22. SCOTT TUROW, 1L (1977).

23. JOHN OSBORNE, PAPER CHASE (1971).

24. E.g., LOUIS AUCHINCLOSS, POWERS OF ATTORNEY (1963).

25. For an example of but one of these works, see ARTHUR R. G. SOLMSSEN, THE COMFORT LETTER (1975).

26. Lawrence Fox, a practicing corporate litigator in Philadelphia, has in fact written a book of short stories with the express purpose of illustrating, through thinly disguised fiction, the ethical dilemmas of modern-day lawyers. LAWRENCE FOX, LEGAL TENDER: A LAWYER'S GUIDE TO HANDLING PROFESSIONAL DILEMMAS (1995). Mr. Fox has served for many years on the ABA Standing Committee on Professional Responsibility, and has been a frequent commentator and contributor to legal ethics issues.

27. That is, we are provided with the authors' perspective through these narratives, at least.

28. See generally Friedman, supra note 5 (comparing fictional characters in popular culture with the reality of everyday law practice).

29. KAZUO ISHIGURO, REMAINS OF THE DAY (1989).

30. For examples of legal writings discussing Remains of the Day, see Rob Atkinson, How the Butler Was Made to Do It: The Perverted Professionalism of the [sic] Remains of the Day, 105 YALE L.J. 177 (1995); David Luban, Stevens's Professionalism and Ours, 38 WM. & MARY L. REV. 297 (1996).

31. See THE MAN WHO SHOT LIBERTY VALANCE (Paramount Studios 1962) (depicting "justice" in an Old West town); see also Cheyny Ryan, Print the Legend: Violence and Reorganization in The Man Who Shot Liberty Valance in LEGAL REELISM 23 (John Denvir ed., 1996) (discussing this classic Old West film and its implications for the legal realism movement).

32. NATHANIEL HAWTHORNE, THE SCARLET LETTER ( Nina Baym ed., Penguin Books 14th ed. 1986) (1850).

33. Carrie Menkel-Meadow, From Hester Prynne to Kelly Flinn: The Scarlet Letters of Sex, Work, Religion, Law and Community (forthcoming) [hereinafter Menkel-Meadow, Scarlet Letter]. By occupational morality I mean something similar to, but different from, more conventional role morality. For someone else's opinion on this subject, see Richard Wasserstrom, Roles and Morality, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS (David Luban ed., 1983). In The Scarlet Letter, we can ask whether the minister Arthur Dimmesdale is somehow more morally accountable for his hypocrisy with respect to adultery because of his position as leader of the church and "pillar" of his community. The recent scandals surrounding adultery in the military also raise questions of whether certain occupations ought to have particular ethical standards. Kelly Flinn, for example, has asked why the military often maintains "higher" but more hypocritically enforced standards with respect to sexual behavior and drinking. See generally KELLY FLINN, PROUD TO BE: MY LIFE, THE AIR FORCE, AND CONTROVERSY (1997). Many of the difficult controversies about how to interpret President William Clinton's sexual conduct and his recent behavior during the impeachment proceedings turned on whether the President as a President, Chief Law Enforcer, or simply as a lawyer had different responsibilities or obligations with respect to both truth-telling and the underlying sexual conduct. Carrie Menkel- Meadow, Watergate, Whitewater and Monica Lewinsky: What National Political Scandals Tell Us About Legal Ethics (manuscript on file with the author, Kharas Lecture, Syracuse Law School, April 21, 1999). Should Thomas Jefferson, as a slaveholder, be held to higher standards than his contemporaries because he penned the words "all men are created equal"?

34. See the works of James Boyd White, Robin West, Paul Gewirtz and Martha Nussbaum, among others, for more extended uses of literary works to focus on the meanings of justice and the jurisprudential and philosophical underpinnings of legal institutions and legal decision-making.

35. See generally JOHN GARDNER, ON MORAL FICTION (1978) (explaining how literature teaches us about ethics). Jane Baron and Richard Greenfield have been teaching a course entitled "Ethical Perspectives on the Practice of Law" at Temple Law School which focuses on the "stories" of both literature and cases. However, this course does not focus on the ethics rules of the profession, the Model Rules of Professional Conduct, at all. Some think that lawyers will learn better ethical deliberation skills by focusing on non-technical, and not rules-based ethics choices. See, e.g., Heidi Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 So. CAL. L. REV. 885 (1996) (making just such an argument). Rob Atkinson of Florida State University also teaches a course in Law and Literature that teaches ethics in the broadest sense and asks: Can a good person be a good lawyer? Somewhat ironically, Jane Baron has recently counseled against the misappropriation of literature by law and literature scholars who seek to make too-direct applications of literary method or content in the study of law. Jane Baron, Law, Literature, and the Problems of Interdisciplinarity, 108 YALE L.J. 1059, passim (1999). The debate about whether law is literature or whether literature really does illuminate issues of legal interpretation has been part of the law and literature movement since its inception. See PAUL GEWIRTZ , LAW'S STORIES (1997); POSNER, supra note 6; Paul Gewirtz, Aeschylus' Law, 101 HARV. L. REV. 1043 (1988); Robin West, Adjudication Is Not Interpretation, in WEST, LAW, supra note 6.

36. William H. Simon, Ethics, Professionalism, and Meaningful Work, 26 HOFSTRA L. REV. 445, 450 (1997).

37. Atticus Finch is, of course, the main character in Harper Lee's classic, To Kill a Mockingbird, supra note 3. See Thomas Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181 (1981).

38. JOHN GRISHAM, THE STREET LAWYER (1998).

39. I will, for the moment, forswear discussion of authorial intentionality, reader-response theory and other theories of literary interpretation that could be applied to both my pedagogical choices and the uses that are made of them by the recipients of my teaching. However, an excellent discussion of these alternative theories is contained in Terry Eagleton's Literary Theory: An Introduction. TERRY EAGLETON, LITERARY THEORY: AN INTRODUCTION (2d ed. 1983).

40. SERON, supra note 18.

41. HERMAN MELVILLE, Bartleby the Scrivener, in THE WRITINGS OF HERMAN MELVILLE: THE PIAZZA TALES AND OTHER PROSE PIECES, 1839-1860 (Harrison Hayford et al., eds., 1987).

42. Others have also discussed this short story and its applicability to the legal profession. See generally Robin West, Invisible Victims: A Comparison of Susan Glaspell's Jury of Her Peers and Herman Melville's Bartleby the Scrivener, 8 CARDOZO STUD. IN L. & LITERATURE 203 (1996).

43. E.g., BROOK THOMAS, CROSS EXAMINATIONS OF LAW AND LITERATURE: COOPER, HAWTHORNE, STOWE AND MELVILLE (1987).

44. In fact, it is "rumored" that Bartleby's previous job was the position of a clerk in the Post Office's "Dead Letter Office"; thus, Bartleby may be the first character in modern literature to "go postal" by not conforming to his employer's requirements.

45. STRACHER, supra note 19.

46. KEATES, supra note 21.

47. CHARLES REICH, THE SORCERER AT BOLINAS REEF (1976). I have occasionally assigned this book to my students and it too appears in some legal ethics anthologies, such as DVORKIN ET AL., BECOMING A LAWYER: A HUMANISTIC PERSPECTIVE ON LEGAL EDUCATION AND PROFESSIONALISM (1981).

48. REICH, supra note 47, at 24.

49. Id. at 24-43.

50. See Charles Reich, The New Property, 73 YALE L.J. 733 (1964). The theory of "New Property" was developed by Professor Reich to describe new substantive and procedural rights derived from statutory entitlements and enforced through Constitutional interpretation.

51. GEORGE ELIOT, MIDDLEMARCH (David Carroll ed., Oxford Univ. Press 1992) (1872).

52. LEE, supra note 3.

53. For example, see Thomas Shaffer, The Moral Theology of Atticus Finch, 42 U. PITT. L. REV. 181 (1981) (depicting and describing, in great detail, the ethical choices and reasoning that presumably drove Atticus Finch); cf. Steven Lubet, Classics Revisited: Reconstructing Atticus Finch, 97 MICH. L. REV. 1339, 1339 (1999) (arguing that perhaps "Atticus Finch was not quite the heroic defender of an innocent man wrongly accused" that we believe him to be).

54. I'll Fly Away (CBS television program 1991-1993).

55. For an updated empirical view of the solo practitioner and depiction of what solo practitioners care about today, see JEROME CARLIN, LAWYERS ON THEIR OWN: A STUDY OF PRACTITIONERS IN CHICAGO, (1994, 2d ed.) and SERON, supra note 18.

56. Scott Turow, unlike John Grisham, has not stopped practicing law and, as a result, seems well-informed regarding the modern practice of law.

57. The Practice (ABC television program).

58. This drama was played out in two episodes of The Practice -- The Practice: Target Practice (ABC television broadcast, Mar. 7, 1999), and The Practice: Cross-Fire (ABC television broadcast, Mar. 4, 1999).

59. JAMES S. KUNEN, "HOW CAN YOU DEFEND THOSE PEOPLE?" THE MAKING OF A CRIMINAL LAWYER (McGraw-Hill Book Co. 1985) (1983).

60. See also THE DEVIL'S ADVOCATE (Warner Brothers 1997) and CAPE FEAR (Universal Studios 1991) for cynical views of criminal defense work. These movies also raise questions about the morality of those who defend the guilty. Moreover, these films seem to reverse the earlier trend of viewing criminal defense lawyers as American heroes.

61. GRISHAM, supra note 38.

62. This is typically done by solving a mystery contained within a lawsuit.

63. GRISHAM, supra note 60.

64. For one of the most moving and realistic accounts of poverty lawyering, see MELISSA FAY GREENE, PRAYING FOR SHEETROCK (1991) (chronicling both the legal and political struggles for racial and class justice in a small Georgia town in the 1970s).

65. See possible disclosure permissions or exceptions in various state forms of Rule 1.6 of the Model Rules of Professional Conduct and the crime-fraud exception to the appropriate evidentiary statutes or doctrines. See IN THE NAME OF THE FATHER (Universal Studios 1993) (portraying an attorney who lies to access evidence wrongfully denied to her falsely accused and incarcerated client). In the Name of the Father dramatically raises the issue of whether an ethical violation may be justified because the ethical violation corrects an even more egregious violation. For a discussion regarding this proposition, see MICHAEL ASIMOW & PAUL BERGMAN, REEL JUSTICE: THE COURTROOM GOES TO THE MOVIES (1997).

66. One does wonder how much of the profits of the book have been donated to homeless- or poverty-related legal efforts or institutions.

67. Consider that several of the excellent books about real litigation currently being used in legal education, including Jonathan Harr's A Civil Action and Gerald Stern's Buffalo Creek Disaster, also terminate with negotiated settlements. Because this is my field, I suggest that we need some good stories about effective negotiators as modern lawyers, to more realistically depict where modern heroic acts occur. The skilled mediator, the consensus manager, the problem-solving negotiator-these are all more modern functions of the skilled lawyer. Our fictional and non-fictional accounts of lawyering have not really kept up with legal practice reality. Some years ago I was approached by a Hollywood producer who wanted to pitch a TV show about mediation because he had received training himself and was a true believer in the possibilities of peacemaking lawyering. His proposals were rejected by the studios while L.A. Law was airing because the studio executives did not think that a mediation session was as "dramatic" as the stylized combat of trials. Only studio-heads who had never been to a mediation could think they are not dramatic enough. I suspect the real reason is that mediation sessions are somewhat harder to "script" than the easily formulated dramatic units of openings, closings, cross-examinations and objection arguments. Law and Order is one of the few television programs that has occasionally shown plea negotiations or appellate arguments (even if the appeals are decided in "television time," not in "real" time).

68. In the real world, the ethics violations could not be part of the underlying substantive case concerning wrongful evictions, and the trial judge would have no authority to discipline Michael Brock; but what's a little dramatic license when we actually have a discussion of ethics violations in a best-selling novel?

69. Cf. DISTRICT OF COLUMBIA BAR RULE 6.1 (encouraging, but not requiring, practicing lawyers to provide pro bono legal services). Many law schools have adopted mandatory pro bono service requirements for their students. My law school, Georgetown Law Center, has begun deliberations about whether the faculty should impose a mandatory pro bono requirement on itself.

70. I am also a fan of Scott Turow's nuanced and complex 1996 novel The Laws of Our Fathers, which traces the social activism of some 1960s Berkeley radicals (with whom I may overly identify) into the more complex and corrupt quagmire of Chicago's 1990s housing projects, drug gangs, politics and criminal justice system. While one could suggest that Turow is more cynical than Grisham (he is easily the better writer), Turow is still working as a lawyer. This is a message of great importance to our students; lawyers can still do good from within the system (even when they have the option to retire on book and film royalties).

71. ISHIGURO, supra note 29.

72. The inappropriateness of the "principal's" ends are made even more dramatic in the movie version of Remains of the Day. REMAINS OF THE DAY (Columbia/Tristar Studios 1993).

73. ISHIGURO, supra note 29, at 199.

74. I find Stevens to be one of the most maddeningly complex protagonists of modern literature. The eloquence in his retelling of his life's story is unparalleled, he is sympathetic, he is a man of considerable integrity and he seems, even before Anthony Hopkins' masterful performance, sweet, despite his clearly chilly competence. As readers, we (I) literally want to get inside the book and scream at him to take Miss Kenton into his arms. We can palpably feel her attraction to him and her desire to comfort and "warm" him.

75. The law review literature on the moral non-accountability of lawyers includes: Charles Fried, The Lawyer as Friend: The Moral Foundation of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976) ; Warren Lehman, The Pursuit of a Client's Interest, 77 MICH. L. REV. 1078 (1979); Stephen Pepper, The Lawyers' Amoral Ethical Role: A Defense, a Problem and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613. Some films also explore the agent-principal relationship, and the extreme ethical dilemmas that accompany that relationship. See, e.g., A FEW GOOD MEN (Columbia Pictures 1992) (depicting the following of unlawful orders of a military superior); THE GODFATHER (Paramount Pictures 1972) (portraying the following of illegal orders issued by a mafia organization).

76. E.g., DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY (1998); Lehman, supra note 74; Menkel-Meadow, Scarlet Letter, supra note 33, at 911.

77. See Atkinson, supra note 30, at 194-216 (suggesting, and then playing out, the moral dialogues that Stevens and Kenton could have had with each other (a dialogue between peers), and the dialogue they should have had with their employer (a dialogue between professional and client), about the firing decision. He locates the sources of their moral dialogue in three possible alternatives for legal ethics-"ordinary morality," the constraints or limits of the "spirit, rather than the letter of legal rules or standards that defend the professional's role," and the "personal commitments" of religious, communitarian or personal values.).

78. LOUIS AUCHINCLOSS, DIARY OF A YUPPIE (1986) [hereinafter AUCHINCLOSS, DIARY]. In my view, almost all of Auchincloss' stories and novels regarding the legal profession illustrate points made within this Essay. Auchincloss' lawyers are all contextually situated (usually in a large Wall Street law firm), they have professional and personal choices to make (within the confines of a mostly homogeneous social and cultural circle), and their actual choices affect themselves, their legal colleagues, their clients and often family members and other third parties. The Auchincloss oeuvre could easily form an ethics course in itself. For some of his less-recent stories, see LOUIS AUCHINCLOSS, POWERS OF ATTORNEY (1963); but even the most recent collection, LOUIS AUCHINCLOSS, THE ATONEMENT AND OTHER STORIES (1997), provides a rich and modern source of discussion regarding craft and ethics choices.

79. Rylands v. Fletcher, anyone??? Is this reference to a case about an "inherently dangerous activity" purely coincidental? The case mentioned is, of course, the famous decision of Rylands v. Fletcher, 3 L.R.-E. & I. App. 330 (1868).

80. For my own participation in this claim of women's ethic of care and morality to others, see Carrie Menkel-Meadow, Portia in a Different Voice: Speculations on a Women's Lawyering Process, 1 BERKELEY WOMEN'S L.J. 39 (1985); Carrie Menkel-Meadow, Portia Redux: Another Look at Gender, Feminism and Legal Ethics, 2 VA. J. SOC. POL'Y & L. 75 (1994); Carrie Menkel-Meadow, What's Gender Got to Do with It: The Morality and Politics of an Ethic of Care, 22 N.Y.U. REV. L. & SOC. CHANGE 265 (1996).

81. See CAROL GILLIGAN, IN A DIFFERENT VOICE: PSYCHOLOGICAL THEORY AND WOMEN'S DEVELOPMENT (1982) (observing that women consider relationships, not abstract principles, in moral reasoning).

82. AUCHINCLOSS, DIARY, supra note 78, at 26-27.

83. For the classic treatment of this subject, see ROBERT TRAVER, ANATOMY OF A MURDER (1958).

84. For the classic defense of these common criminal defense tactics, see MONROE FREEDMAN, LAWYERS' ETHICS IN AN ADVERSARY SYSTEM (1975); MONROE FREEDMAN , UNDERSTANDING LEGAL ETHICS (1990); Monroe Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 MICH. L. REV. 1469 (1966) .

85. ALAN DERSHOWITZ, THE ADVOCATE'S DEVIL (1994).

86. Id. at 252.

87. Dershowitz' noncommittal ending to the story dealing with a proposed change to the ethics rules (a change that is now reflected in many states' ethics codes and the Restatement of the Law Governing Lawyers) suggests that he, like other lawyer-authors, recognizes that once we tell legal stories for lay audiences, the complexities of lawyer craft and ethics may be harder to sell. Literature and popular fiction, as George Eliot demonstrated last century, may depend more on "ordinary morality" than on specialized professional codes.

88. RUSSELL BANKS, THE SWEET HEREAFTER (1991). Some believe that this novel is a fictionalized account of a school bus accident resulting in the death of many school children in a small community. However, the account is taken from actual events. For a discussion of these events, see Austin Sarat, Imagining the Law of the Father: Loss, Dread, and Mourning in The Sweet Hereafter, L. & SOC'Y REV. (forthcoming) (discussing the film version of The Sweet Hereafter and its teachings about law, lawyering, fatherhood and human frailty).

89. BANKS, supra note 88, at 120-21.

90. Steven Lubet, Moral Adventures in Narrative Lawyering, 2 GREEN BAG 179 (Winter 1999).

91. "Facts" learned in discovery or in subsequent investigations are often craftily "folded" into a chronology of events, even if those "facts" were not apparent to the witnesses at the time; lawyers do this so that they may tell a better or more "truthful" story than might a witness relying solely on his or her memory. However, the "facts" have, in fact, been "planted" (after the fact, as it were).

92. For a new genre which I have not discussed in this Essay, see LAWRENCE JOSEPH, LAWYERLAND: WHAT LAWYERS TALK ABOUT WHEN THEY TALK ABOUT LAW (1997). This book portrays a set of "fictionalized" "portraits" of lawyers, drawn from Joseph's interviews of and conversations with actual lawyers.

93. See MARTHA NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLIC LIFE (1995) (examining legal institutions and legal ethics), and Robin West, Law and Fancy, 95 MICH. L. REV. 1851 (1997) (reviewing Nussbaum's book).

94. See, e.g., Carrie Menkel-Meadow, The Power of Narrative in Empathetic Learning: Post-Modernism and the Stories of Law, 2 UCLA WOMEN'S L.J. 287 (1992) (book review) (discussing, among other things, the stories of actual lawyers and the ethical choices those lawyers make).

95. Some of these groups include the ABA Ethics 2000 Commission, ALI Restatement of the Law Governing Lawyers, Georgetown-CPR Commission on Ethics and Standards for ADR, Judicial Conference Committee on Federal Practice Rules, State Supreme Court Justices and ABA Task Force on No-Contact Rules. There is also the revision of state codes and promulgation of sectoral speciality ethics codes.

96. On the relation of public attitudes toward lawyers as gathered from polling data, to popular culture depictions of lawyers, see ASIMOW, supra note 12. 

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