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Lessons for lawyers from a butler 'Remains of the Day' joins list of texts on legal ethics

FOR DECADES, law students have had to stock up on texts by Sophocles and Melville along with books on torts and contracts. Venerated works such as "Antigone" and "Billy Budd" offer explicit musings on justice and order with obvious lessons for lawyers. Some professors have even mined the TV show "L.A. Law" for anecdotes about attorneys.

At the University of Maryland School of Law, however, two professors who teach sections of a mandatory legal ethics course have assigned a book that, on its face, has nothing to do with the law and features an unlikely role model: a repressed butler in pre-World War II England.

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Stevens, the retiring servant of the book "The Remains of the Day," is being used by professors David Luban and Deborah S. Hellman to undermine the archetypical notion of the lawyer as a hired gun.

While Maryland students offered mixed reviews, legal scholars nationally say reading the 1989 novel by Kazuo Ishiguro offers an innovative way to illuminate the pitfalls that await lawyers concerned only with what is legal, rather than what is right.

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"I think it's ingenious," said Thomas Shaffer, a professor of law at the University of Notre Dame in South Bend, Ind., who teaches courses on legal ethics.

The decision to avoid making moral choices often leads to immoral acts, Mr. Shaffer argues. Lawyers cannot absolve themselves of responsibility, he said, by "taking refuge in professionalism, which is what a lot of the legal establishment wants young lawyers to do nowadays, and which, the novel shows, is probably a bad idea."

"Lawyers have to take responsibility [for] who they select as clients and how they represent them," Mr. Luban said. "They can't hide behind the adversarial system."

In "The Remains of the Day," the butler Stevens is consumed with upholding the ideals of his profession. He must, he believes, find a worthy master and offer him dignified, unyielding loyalty. That Stevens may disagree with Lord Darlington, who turns out to be an anti-Semite and an active Nazi sympathizer, is less important than providing loyal service.

When told by Lord Darlington to dismiss two housemaids simply because they are Jewish, Stevens immediately has misgivings. "My every instinct opposed the idea of their dismissal," he tells readers, but continues: "Nevertheless, my duty in this instance was quite clear, and as I saw it, there was nothing to be gained at all in irresponsibly displaying such personal doubts."

He justifies his act to the chief housekeeper by saying: "Surely I don't have to remind you that our professional duty is not to our own foibles and sentiments, but to the wishes of our employer."

When Ms. Hellman encountered the book in a Harvard University program on ethics several years ago, she thought it would be a perfect text to include in courses on legal ethics, and pitched the idea to Mr. Luban, who specializes in the field.

"It's a nice analogy," Ms. Hellman said in comparing Stevens' dedication to the principles of butlering with the conventional approach to morality among lawyers. The book, she said, "raises the issue of whether the profession is accountable of the goals or aims of whom he serves. Lawyers like to think of themselves as not accountable for that."

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Books selected for law courses typically have explicit themes of law and justice. In Shakespeare's "Merchant of Venice," for example, Shylock is treated to a rough form of justice when he tries to get a pound of flesh the particularly cruel collateral for a failed loan.

Rob Atkinson, associate professor of law at Florida State University, said the true temptation for law students is to believe that "a lawyer can be a good person if he does whatever the law allows, for any client, no matter how immoral," Mr. Atkinson said. "The nice thing is that Stevens shows, in another context, how awful that can be."

University of Maryland law students interviewed who have taken the legal ethics course this year suggested the novel's point did not hit its target. Several students expressed frustration at a class which offered so many ambiguities at a time when they were hungering for clear-cut direction.

"There's always shades of gray" instead of the practical guidance she wanted, said Abby Kelman, a third-year Maryland law student from Silver Spring. So, she said, the book did not grab her attention. "I don't really remember why [the book] was relevant."

Susan Winchurch, a third-year law student from Baltimore, said students are often keenly aware of ethics on a legal front witness campus conversations about accounts of lawyers hounding the families of victims of the Silver Spring train crash.

While Ms. Winchurch said she enjoyed reading the novel, she also said the lessons of "Remains of the Day," if heard at all, fell on the wrong ears. "It's almost so subtle a point that it could be lost on the type of person who would go out and do that kind of solicitation," Ms. Winchurch said, referring to the lawyers aggressively seeking to sign survivors of the train wreck as clients.

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And at least one scholar who teaches on literature and the law understands those criticisms.

"The students in some way are shrewd about the question of literature," said Brook Thomas, chairman of the department of English and comparative literature at the University of California at Irvine. "It's one thing to read the book and it's quite another to practice those lessons learned outside the classroom."

Dr. Thomas said students might not see the relevance of "Remains of the Day" to their career. "You can see the constraints of professionalism, but [students] could come out and say, 'Hold it, I'm not working for a fascist' ", he said.

In general, law professors acknowledge, legal ethics is one of the toughest classes to teach.

"A lot of students doze through the course," Mr. Luban said. "Most students don't want to be there." And Mr. Luban and Ms. Hellman said they hope to enliven discussion of professional responsibility by incorporating a lively novel into a curriculum that also demands that students sift through turgid prose.

"From the teacher's point of view, it's all on faith," Mr. Luban said of teaching legal ethics. "Whether they're learning from it, I can't know for another 20 years."

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E9 David Folkenflik covers higher education for The Sun.

Pub Date: 3/24/96


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