Remembering the human factor in the practice of law

The human factor in the practice of lawA century ago, Dean Roscoe Pound famously exhorted the legal profession to transform its institutions of justice and adjust its principles “to the human conditions they are to govern”, “putting the human factor in the central place”.

I read those words in law school but failed to appreciate their meaning – until I began to work with clients as a lawyer. A teacher wrongly accused of sexual assault by a pupil. A physician discriminated against because of race and gender, then subjected to retaliation and threats of violence. Parents who lost their only child because of a driver’s recklessness. These were the human faces of the law. No longer capitalized Law with imposing marble columns, law became human, substantially more than case book and statute, precedent and logic.

I thought of Pound’s words and remembered the faces of these long-ago clients when I read a letter in this week’s Massachusetts Lawyers Weekly from an attorney reflecting on the human element in the practice of law.

He described an experience in a family law class while he was still a student:

On the first day of class, [the professor] chose me to play the role of the lawyer advising a women in distress who was seeking legal advice about divorce….[The professor] played the role of the distressed woman client.

I jumped right in with both feet. I asked how she was doing. Well, you couldn’t have scripted a better blunder to demonstrate her point, and she let me know it right in front of my 100 or so classmates – a moment that is burned into my consciousness and I fear always will be.

The [professor’s] point was that, as lawyers, we are providing a service – a legal service. We are not counselors, comforters or friends. What the client needs at that moment from us is a clear dividing line, something she can rely on in a world turned upside down: clear, precise, level-headed guidance.

Many years after this incident, learning that a client was suffering a recurrence of cancer gave this lawyer a fresh opportunity to reassess his professor’s advice, concluding that “things aren’t quite as simple in life as she would have had us believe”.

I realized at that moment that sometimes our clients need us not to be lawyers; they need us to be human beings.

I can only imagine what this law professor might have thought of practices such as collaborative law or mediation – methods of resolving disputes that very much put “the human factor in the central place”.

It’s hard to believe that a commonplace act of civility could have provoked such punishment – public humiliation in front of an entire law school class – an experience the letter writer has plainly never forgotten. Where in the Rules of Professional Conduct does it say that you must abandon your humanity in exchange for the Esq. that adorns the end of your name?

What an extraordinary lesson to impart to students: that professionalism and compassion are somehow mutually exclusive.

5 responses to “Remembering the human factor in the practice of law

  1. Pingback: Tweets that mention Remembering the human factor in the practice of law | Mediation Channel -- Topsy.com

  2. Good question, Diane!

    Not that the RPCs serve as clear clarions calling us to be moral agents, but I love pointing out where they quietly suggest that just advising on The Law might not always be enough.

    RPC 2.1 permits us (noblesse oblige!) to advise on matters other than law, such as moral, economic, social and political factors. The comments suggest advice couched solely in legal terms may be of little value. One factor it names is advising clients on “practical considerations, such as cost or effects on other people.” Comment 2 to RPC 1.2, regarding the Scope of the Representation, coyly suggests the lawyer would normally defer to the client with concerns that others may be collaterally damaged by the legal means used to accomplish the objectives of the representation. A lawyer advising that litigation may be expensive, or that it might hurt others, then following the client’s decision — fancy that!

    These and other gems can be found when taking a client-centered stroll through the RPCs.

  3. Jeff, great insights. It’s always instructive to consider how things look from the client’s vantage point.

  4. Harry Manasweich

    I agree with your thoughts Diane, especially considering that I felt so strongly about this principle that I named my ADR practice Human Factor Dispute Resolutions in the mid 1980’s.

    • Harry, you always were a guy ahead of his time – and someone who walks the talk for sure. It’s a principle that clearly inspired you, and that I hope inspires us all. Many thanks!

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