Telling stories about cases and clients: The ethics of narrative

Even if an author has a story about a case well in mind, no models exist for how to talk to clients about the content of the stories that we write about their cases. Clients may or may not be familiar with the world of legal practice; even fewer clients have experience with academia. It would be difficult to explain to clients the meaning of their case story in that world. But perhaps even more importantly, the author needs a clear vision of the boundaries of ownership and control over the story. These boundaries are entirely unclear, and from talking with other authors, I believe that many of us have a great deal of ambivalence about the propriety of writing about cases and clients without their consent. Until we have resolved our ambivalence, it will be difficult to have a meaningful conversation with our clients or former clients.

C. SOME ETHICAL CONSIDERATIONS: HAS THE CLIENT'S STORY BEEN APPROPRIATED?

If we use stories for ends not approved by our clients, are we guilty of appropriation or misappropriation?202 Although the charge is levied at lawyers and others who tell client stories,203 since the term is rather new to legal scholarship, its meaning is still elusive.204 As Kathleen Sullivan defines it, misappropriation "is sometimes the way the story is taken, sometimes the way it is told, and sometimes the way it is used by outsiders."25 This may be just a different way of asking whether the practice of telling stories outside of cases respects client autonomy and life experience, or whether clients can claim ownership of the underlying story.2

This is a different question than the question of whether confidentiality has been breached. For example, using a story about a gay client in the classroom is not a breach of confidentiality if the client's identity is not revealed and the story could not be traced to a particular individual. Nor is it a breach of confidentiality if the story is contained in a pleading filed in a case or a hearing transcript from a case. The use of the story without consent might, however, constitute appropriation if we consider that the client has the right to determine when and how that story is told.207 For some, even consent cannot cure the problems associated with appropriation, either because of the power differential between lawyers and clients, 208 or because white middle-class scholars can never understand the experiences of people of color.229

1. WHEN THE LAWYER VOICE MATTERS: ARE CONSIDERATIONS OF CLIENT VOICE AND AUTONOMY AS STRONG "OUTSIDE" THE CASE AS "INSIDE" THE CASE?

The first place to turn for questions about the ethics of storytelling is collaborative lawyering theory. Although the parameters of the ethical rules sometimes intersect with theories of lawyering, the rules do not by themselves provide a vision of client empowerment or address how responsibility is shared between lawyers and clients.211 While other theory-based movements rely on storytelling, they typically look at law through the prism of identity. In contrast, collaborative lawyering theory is explicitly concerned with the dynamics of the relationship between lawyers and clients, and how responsibility and control should be allocated between lawyers and clients in the process of representation. These lines are flexible, not rigid, and may change depending on the circumstances, but at bottom, these are the lines that matter to collaborative lawyers.