Faith-Based Legal Argument

 Posted on February 25,2008 in Uncategorized

The same sorts of questions, it seems, pop up over and over again where lawyers gather to discuss the law. Questions like:

"Isn't it a violation of the disciplinary rules for a lawyer to talk to another lawyer's client about taking his case?"

and

"Shouldn't I put my client on the stand, so that I can make a record that I have conveyed the State's offer and he has rejected it?"

The correct answers (no and hell no, in these two specific instances) are easily ascertained by someone with more than a passing familiarity with the DRs. It's okay for a lawyer to talk to another lawyer's client because the client is not the lawyer's property, and because the client has the right to a second opinion or even to change lawyers. It's not okay for the lawyer to make a public record of his communications with his client because such communications are privileged, it is not in the client's best interest to have them aired publicly, and airing them publicly sets the lawyer and the client at odds.

Even in the face of references to the appropriate rules and opinions, though, many lawyers continue to believe that these questions may be answered yes and yes. Why?

Because this is what they have always done, or because this is the way they wish the law to be. But this is the law we're talking about here. "I believe" or "I always thought" or "It should be" very rarely trump the letter of the law.

Faith-based legal argument doesn't happen only in the arena of ethics, either. I've been told by numerous lawyers that it's against Texas law to possess prescription medication out of the pill bottle. Challenge them on it, and they insist that it's so. Press them, and they are unable to point to a statute or case. There is none; this is a jurisprudential urban legend.

Lawyers substituting uninformed opinions about the state of the law for actual legal research skills are young and old, prosecutors and defenders. They feed on each other - when one faith-based legal scholar's opinion is not challenged by another, that opinion is confirmed and the need for actual legal research does not arise.

This can sometimes be frustrating to those whose first impulse, when faced with a novel legal question, is to fire up the laptop and research the answer - those who can point to at least an approximate source (if not a casename or cite) for most every legal position they take.

When the faith-based legal scholar is an adversary, though, frustration can turn to joy. I'd much rather try a case against someone who assumes she knows the law than against one who knows that she doesn't know the law. The latter is more likely to actually get it right.