Academic journal article University of Queensland Law Journal

Bounded Autonomy and Bounded Zeal

Academic journal article University of Queensland Law Journal

Bounded Autonomy and Bounded Zeal

Article excerpt

Many of the discussions of the proper model of lawyering dwell on the moral dilemmas a lawyer faces and the issue of the degree to which he or she ought to intervene in his or her client's choices. Some have argued that lawyers ought to act paternalistically to promote their client's interests. Others have rejected such an approach from a liberal defence of the paramount value of rights accorded by law and the right of clients to exercise their autonomy in availing themselves of those rights. A third approach might see the lawyer as having a responsibility to frame behaviour in a way which accords with the spirit of the law, or the interests of justice.

These theoretical approaches (and there are many other possibilities and variations) are generally presented in opposition to each other--after all how can one both respect the autonomy of a client and also act in a way which intentionally shapes their behaviour or pursues goals beyond the interests of the client. This paper is a tentative attempt to argue that these approaches, while coming from theoretically distinct positions, inform each other in important ways in a practical sense and may not be wholly inconsistent with each other.

This paper has been stimulated by three main factors. The first has been an ongoing frustration with the existing theoretical analyses of the lawyer--client relation. The second is a firsthand experience of the practical difficulties facing clients making hard decisions in complex cases. The third is a strand of emerging scholarship which has become known by the unflattering (and to my mind inaccurate) label of 'behavioural law and economics'.

Theories of lawyers' conduct need to mesh with the practice of the law. I suggest that some approaches to the proper model of lawyers are hopelessly idealistic and do not take into account the realities of who lawyers are, what they are capable of, and what clients want of them. The theories also fail to appreciate the normal psychological limitations which both lawyers and clients labour under and the cognitive methods used to overcome those limitations.

This paper first looks at the inherent and intractable difficulty of many legal problems faced by clients and their lawyers and examines some of the biases and heuristics that are used to render problems of this nature surmountable in practical terms. It then examines the standard conception of lawyering and considers whether it is tenable given the real world problems identified. The paper then embarks on a limited defence of paternalism arguing that it is broadly consistent with a respect for client autonomy properly construed. The underlying theme to this paper is that given the world as it is, it is impossible to provide a theoretical model of proper lawyer behaviour that accords decision making power to one party. In the lawyer client relationship a decision is made by virtue of a complex mediation between the law, the lawyer, and the client. It is impossible for the lawyer to be either a mere conduit for a client's autonomous exercise of rights, or for the lawyer to steer in an unfettered way the affairs of the client.

The idea that the lawyer-client relation is a complex and interdependent one is not new. Perhaps the interesting aspect of this paper is to formalise why this is the case and to highlight the fact that a new model of behaviour in light of this established indeterminacy needs development.

I The Complexity of Practice

When a lawyer is faced with a professional decision as to what course of action is proper to take, several considerations exist. Some will be pragmatic (such as the pressures of practice and financial constraints), others will be legal (such as the limits placed on acceptable conduct by the law and rules), and others will be ethical (such as whether a particular course of conduct fits with the lawyer's conception of right action). This does not exhaust the possibilities. …

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