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Literature and the Legal Profession: Ethics, Morality, and the Lawyer in Great Expectations and To Kill a Mockingbird

 
 
By Catharine Parnell (Summer Associate)
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It is a regrettable fact that popular culture often portrays lawyers in a less than flattering light.  Throughout literature and film media, lawyers have been painted as rapacious, unethical, and arrogant misanthropes who profit off of others’ misfortune.  Irving Browne notes in Law and Lawyers in Literature that lawyers seem to be tolerated in society “because and when they are indispensible” [Irving Browne, Law and Lawyers in Literature iv (Wm. Gaunt & Sons, Inc. 1992) (1883)].  More recently, Geoffrey Hazard described lawyers as “highly compensated untouchables” responsible for a significant amount of society’s “dirty work” [Irving Browne, Law and Lawyers in Literature iv (Wm. Gaunt & Sons, Inc. 1992) (1883)].  Given that attorneys and legal professionals generally do aspire to ethical behavior, these curious descriptions suggest that either morality has no place in the law or that lawyers ascribe to a different kind of morality than society at large.  In both portrayal and practice, there appears to be a “discrepancy between a lawyer’s sense of justice and that of his surrounding society” [Richard Weisberg, Poetics and Other Strategies of Law and Literature 55 (Columbia University Press 1992)].

The tension between the professional and popular expectations of lawyers demonstrates an ethical conflict between two competing versions of justice and right.  The disconnect between modern legal ethics and public understanding represents a fundamental difference in the perceived role of the lawyer: popular culture perceives the lawyer as an individual in moral pursuit of justice, as opposed to the more variable and complex function of the attorney “as a professional wedded not only to his clients but also to the superb traditions of a remarkable system admittedly flawed but potentially fine” [Id. at 53].  In literature, Charles Dickens’ Mr. Jaggers in Great Expectations and Harper Lee’s Atticus Finch in To Kill A Mockingbird illustrate the differences in these roles for fictionalized attorneys and highlight the benefits and shortcomings of these opposing systems of legal ethics.

Legal Ethics v. “Moral Pluck”

Lawyers have not always ascribed to a separate system of professional values. American legal ethics emerged piecemeal in the nineteenth and twentieth century.  After the standardization of legal education in the late nineteenth century, prominent jurists attempted to codify professional standards in Canons.  Formal regulation intensified as courts began to rely on the professional associations of the bar.  The modern Code of Professional Responsibility emerged in the aftermath of Watergate and similar political scandals where prominent lawyers participated in unsavory practices.  Scholars and ethicists designed a code of conduct built for mechanical application with prescriptive tenets governing particular situations or conflicts.  Effectively, the Code presents a stylized, formalist view of professional ethics that aims to maximize attorneys’ abilities to act as principled advocates within the legal system.

These principles diverge sharply from what Professor William H. Simon of Stanford describes as popular moral understanding [Charles W. Wolfram, Toward a History of the Legalization of American Legal Ethics – II The Modern Era, 15 Geo. J. Legal Ethics 209, 210 (2002)].  In “Moral Pluck: Legal Ethics in Popular Culture,” he describes the curious reflection of legal ethics in popular culture and notes that the Code of Professional Responsibility has little tolerance for independent moral thinking or “principled noncompliance with unjust positive law.”  The system of modern legal ethics purports to encourage lawyers to serve the bar and the courts, but the black-letter version of the ethical law places lawyers in a position where adversarial practice is mercenary.  Where popular culture reflects these ethical considerations, they inevitably demonstrate the moral superiority of principled ethics violations.  The lawyer that acts with “moral self-assertion” against the rules carries the day.  In short, society’s expectations of lawyers is markedly different from what lawyers expect of themselves.   While both perspectives have some validity, they each have flaws that may be examined through the fictional portrayal of lawyers who embody their core values.

Ethics and the Portrayal of Lawyers

Ethical transgressions by “good” attorneys appear throughout popular culture.  Any John Grisham novel along with television series like The Practice and Boston Legal invariably depict lawyers violating the letter and spirit of ethical rules to serve their own ends.  Despite their disregard for professional standard, these characters are generally painted in a sympathetic light and deemed as ultimately correct in their moral judgment.  The difference in the portrayal of Charles Dickens’ Mr. Jaggers and Harper Lee’s Atticus Finch helps to shed light on the competing visions of legal practice espoused by the professional establishment and popular culture.  Mr. Jaggers’ amoral and dispassionate approach to the law belies his belief that the discretion and circumspection of the legal profession allows the adversarial system to function.  Atticus Finch seems to suggest that the goal of the law is the attainment of the best moral outcome.  This end is best served in the novel when Finch violates his professional ethics to obscure a just killing. Reflective criticism of both views demonstrates their strengths and shortcomings.

“I’ll have no feelings here!” – Mr. Jaggers’ Nobler Expectations

Great Expectations tells the story of Pip, a boy of modest means who begins a steep social climb through the generosity of a mysterious benefactor.  Charmed by the lovely but ever-distant Estella, he grows under the tutelage of his guardian, Mr. Jaggers, but ultimately fails to appreciate the true nature of his success.  The novel ends with a humbled but mature Pip facing life as a gentleman. Throughout the novel, Dickens portrays Mr. Jaggers as “verbally acute, tyrannical, and distant” [Weisberg, supra note 3, at 55].  He uses his powers of verbal and social manipulation to the advantage of his clients while revealing very little of his true self.  In this role, Jaggers serves the law with a courtroom manner often described as omnivorous. Pip takes great care to describe his first encounter with Jaggers’ professional side, noting “the judges shivered under a single bite of his finger…. Which side he was on, I couldn’t make out, for he seemed to me to be grinding the whole place in a mill.”  Jaggers’ success at the bar stems directly from his circumspect and calculating nature, but also from his willingness to press his client’s advantages.  He refuses to allow “feelings” into his law practice and treats his assistant, his clients, and witnesses severely. Dickens’ characterization of Jaggers easily translates to the popular archetype of the modern corporate attorney or the hard-nosed prosecutor.  He appears as a surrogate who subtly moves the lives of others and personifies the “resentment lawyers sometimes both feel and evoke.”

Jaggers is professionally ethical but also morally ambiguous. He washes his hands with scented soap after seeing every client.  Sometimes, he even gargles with water and washes his face or cleans his fingernails.  These symbolic gestures may reveal a professional distaste for the mess of individual cases or suggest that Jaggers is equally ready to argue for any client; he begins each case from a clean slate.  Aside from a single instance when he defends the legal presumption of innocence, Dickens never reveals anything of Jaggers’ moral character.  Dickens’ characterization proffers the question of whether Jaggers’ personal morality ought to be at issue in his practice at all; despite being distrustful and intimidating, he practices the law with great passion.  Even Jaggers’ least attractive traits “come with the territory of his professionalism” as he shows “faithful assertiveness on behalf of [his] clients” in the harsh social and legal environment of Victorian England [Weisberg, supra note 3, at 62].  He conforms to the characterization of attorneys as mercenaries for their clients, but he seems to view his role as that of an “option-definer.”  For Dickens, the lawyer is an interpreter of complex situations and often the only individual with a full grasp of the big picture.

Through Jaggers’ characterization, Dickens makes the argument that a lawyer’s curious ethical behavior has ends of its own: the practice of the law has nobility, “for who else would be the champion of the Magwitches, the Mollies, and the other impoverished of this world?” [Id. at 63].  Jaggers embodies a system of law that functions through the professional sense of discretion.  His role suggests that lawyers ought not to be engineers of the “greater good,” but that their role functions precisely because of their allegiance to their clients.  Dickens reinforces this principle through Jaggers’ botched attempt at constructing “the good” in his professional career: the novel holds him partly responsible for Molly’s decline, Estella’s cold and haughty nature, and Ms. Havisham’s eventual descent into madness.

“I’ve got to live with myself.” – Atticus’s Moral Conscience

To many, Atticus Finch represents the ultimate fictional lawyer.  In To Kill a Mockingbird, Finch risks his position and the safety of his family to defend the innocent Tom Robinson from a rape charge brought by a white woman.  Finch boldly represents a black man in front of a white jury in a mid-century town in the South.  In doing so, he teaches his young children, Jem and Scout, about moral imperatives and the power of conviction.  This praise, however, obscures the fact that Lee’s novel concludes with Finch engaging in a classic case of   obstruction of justice. The “great legal hero” ultimately maintains the lie that vindictive Bob Ewell died accidentally, rather than subject the silent and reclusive Boo Radley to the same flawed legal system that condemned Tom Robinson.  The novel concludes with a strong inference that Finch’s behavior was morally upright, despite its violation of professional legal conduct.  Lee encourages the reader to forgive Finch’s ethical transgression and place faith in the lawyer, if not the law.  In doing so, she portrays the lawyer as a figure with an active moral conscience that aspires to the greater societal good – above even the proper functioning of the legal system.

Finch’s behavior at the end of the novel may be deemed “noble” or “moral,” but it is nevertheless problematic.  When Finch agrees to lie about Bob Ewell’s death, his decision undermines the very rule of law that he has sworn to protect.  His faith in the system fails after Robinson’s conviction, but Lee assures readers of Finch’s strong moral compass:  Finch’s critics point to the painful juxtaposition of the novel’s main events: the trial of an innocent black man versus the covering of a crime committed by a white man.  By opting to lie about Bob Ewell’s murder, Finch demonstrates a willingness to singlehandedly decide when the law works and when it does not.  While Finch is seemingly correct about the impossibility of obtaining justice in Maycomb, his behavior does nothing to ameliorate the situation.  Whereas Jaggers was professional to a fault, Finch abandons legal professionalism to procure an outcome that settles his conscience.

Lee deliberately paints Finch as a man devoted to traditional natural law views of morality.  From the outset, she paints Maycomb as a place “where the rule of law does not exist, where murder is tolerated by the authorities, where racism is brutal and rampant, and where the jury system is a mockery” [John Jay Osborn, Jr., Atticus Finch: The End of Honor – A Discussion of To Kill a Mockingbird, 30 U.S.F. L. Rev. 1139, 1141(1996)].  Yet Finch cannot – or perhaps will not - accept the truth.  He willingly partakes in a trial he knows he cannot win to its terrible, mocking conclusion.  Finch represents an almost child-like faith in a disintegrated system.  His morality, while touching and idealistic, is also impractical, and manages to protect the eccentric Boo Radley even as it fails innocent Tom Robinson.  This, also, demonstrates the differences between Lee and Dickens’ views of the legal system – criminal justice in Lee’s Maycomb fails good people whereas the troubled social structure of Dickens’ Victorian England produces undesirable clients who destabilize and undermine the law.

Despite the futility of the rape case, Finch’s conviction that he served a higher moral purpose reinforces the hope that the practice of law does not require a sacrifice of personal values.  After all, Atticus ceaselessly attempts to raise his own children to become moral and righteous adults. He fosters empathy in both his personal and professional life and resists racial stereotypes.  As he tells Scout, "You never really understand a person until you consider things from his point of view - until you climb into his skin and walk around in it."  His empathy stands in stark contrast to the professional distance always maintained by Jaggers, who segregates his feelings entirely from his legal practice.  One attorney affects a “right” outcome through questionable actions and the other follows his cases to conclusion despite moral imperatives to do otherwise.  In the end, neither Finch nor Jaggers paints a complete picture of the ethical dialogue necessary for competent legal practice.

Popular Morals, Professional Conduct

In the larger conversation about legal ethics, Finch represents the popular view that lawyers should privilege moral justice and “good” in their practice even when it places them in conflict with the ethics of the profession.  For his part, Jaggers demonstrates that the lawyer’s function in the system demands discretion and ethical diligence even when pursuing a client’s desires could result in “immoral” consequences.  Neither portrayal addresses the reality of legal practice, nor suggests how to reconcile the distasteful perception of lawyers with the strictures required by responsible advocacy.  By focusing solely on the moral good, a lawyer may risk taking justice into his own hands at the expense of others and the legal system.  Conversely, when he fails to exercise empathy and ignore the larger ethical consequences of their actions, he may appear amoral, conniving, and heartless.

In practice, Jaggers’ position appears more pertinent to the proper role of an attorney in our present legal system.  Unlike the alternative, it seems to acknowledge that there may be multiple truths and few wholly moral outcomes.  While the Finch approach likely has populist appeal on grounds of moral rectitude, it also presumes a singular understanding of justice.  The popular view of legal ethics underestimates the complexity of the law and the requirements of professionalism by presuming that there exists a single “good” outcome.  In spite of Jaggers, however, Finch makes a compelling argument for greater social and political context in legal ethics.  The profession could well benefit from a system that allowed lawyers to develop and exercise a larger moral conscience. While it might not reduce popular contempt for the profession, a sense of public morality could help temper the persistent negative perceptions.  By illustrating the values ascribed to competing views of legal ethics, Atticus Finch and Mr. Jaggers contribute to the conversation about the nature of the legal profession and its relationship to a diverse and complicated society.

 

 

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