"Technical" Defenses: Ethics, Morals, and the Lawyer as Friend

This essay examines the question of lawyer-client counseling on the issue of raising "technical" defenses, such as statutes of limitations. The authors challenge the prevailing notion of American lawyers that technical defenses raise no moral issue worthy of dialogue between lawyers and clients. Looking at the history of legal ethics and modern treatment in European law, they suggest that questions of limitations do raise moral issues. They go on to explore how those moral issues ought to be discussed and decided between lawyers and clients, using the framework of lawyers as godfathers, hired guns, gurus, and friends that they laid out in their book, Lawyers, Clients, and Moral Responsibility. They conclude that although the moral questions are not different, the poverty law context suggests a need for sensitivity to the power imbalance between the lawyer and client and the level of intensity of moral persuasion.