The ethics of advising

What should lawyers tell clients about the law when they advise them? Holmes offers one answer, which lies at the root of his judge-centrism. “People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves...

But why? Why not simply “his professional opinion as to what the applicable law actually requires”? The fact is that lawyers find it almost irresistible to turn the question of what the law means into the question of what courts would likely say it means. Answering law questions with court-talk (“a court would probably say... ”) may be little more than a harmless, residual verbal tic induced by the prevailing judge-centrism of our legal culture. I suspect, however, that the temptation to court-talk comes from a more dangerous motivation than verbal habit. It is a means of ducking personal responsibility for a judgment, by fobbing it off on hypothetical “courts” and couching legal judgments as mere predictions.

Lawyers who do this when there is no litigation pending and no reason to suppose there ever will be - and that will be true most of the time - are in denial. They are in denial of the fact that their conversation with the client marks the end of the road. From the client’s point of view, the lawyer’s pronouncement is what the client takes the law to be.