METAPHORS OF LAWYERS' PROFESSIONALISM 833

METAPHORS OF LAWYERS' PROFESSIONALISM

JONNETIE WATSON HAMILTON•

This article examines three common metaphors in L 'auteure examine trois metaphores courantes
several professional codes of legal conduct and utilisees dans plusieurs codes de conduite
supporting documents. The metaphors are the professionnelle et documents connexes. Ces
"metaphoric networks" based on the military, metaphores sont /es «reseaux metaphoriques»
gentility and Christianity. Numerous examples of all enracines dans le secteur militaire, la haute
three metaphoric networks are given. bourgeoisie et le christianisme. Les exemples
Metaphors are non-arbitrary. The three abondent dans /es trois categories de metaphores.
metaphoric networks examined here are consistent Les metaphores sont non arbitraires. Les trois
with one of the most common orientation metaphors reseaux de metaphores examines ici suivent la
in the English language, the metaphor expressing tendance de la metaphore d'orientation la plus
relationships in bodily terms of "up" and "down." courante en anglais : celle qui exprime la notion
These metaphoric networks evoke a hierarchy of physique de superiorite [up] et d'inferiorite [down].
society based on a strictly male, ethnocentric Ces reseaux metaphoriques evoquent une
British-Canadian world. The lawyer reading the hierarchie sociale enracinee dans un monde
codes of conduct that contain these metaphors ethnocentrique britanno-canadien strictement
would see the image of the lawyer created masculin. Les membres du barreau qui parcourent
according to the lawyer's own inclusion within or ces codes de conduite riches en metaphores y
exclusion from that ideal. Also, this social elitism verraient une image de l'avocat ideal qui l'inclut ou
may contribute to the public's lack of respect for l'exclut. Cet elitisme social pou"ait contribuer au
the legal profession. manque de respect que la profession juridique
inspire au grand public.

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 833
II. METAPHORIC BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . 836
III. METAPHORIC NETWORKS IN THE
CODES OF CONDUCT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 839
A. MILITARY METAPHORS . . . . . . . . . . . . . . . . . . . . . . . . 839
B. CHRISTIANITY METAPHORS ..................... 843
C. GENTILITY METAPHORS . . . . . . . . . . . . . . . . . . . . . . . . 847
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 855

I. INTRODUCTION

This article explores some of the most common metaphors of lawyers'

professionalism. My analysis focuses on twentieth century North American codes of
conduct, produced between 1908 and 1992, and, to a lesser extent, on the words of

Assistant Professor,Faculty of Law, Universityof Calgary. I would like to thank W. WesleyPue,

Faculty of Law, Universityof British Columbia,for his encouragement,advice and commentson
an earlier version of this paper.
834 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

those who produced those texts. Predominant metaphoric networks in all of these codes
are clustered around the concepts of the military, Christianity and gentility. 1

The codes of conduct, as these metaphoric networks illustrate, embody the particular
values of a particular culture at a particular time. The values, culture and time are those
of the nineteenth century Christian gentleman, comfortable with his place in the social
ordering and the hierarchy of the institutions of the established church and the military.
Whether they were appropriate to the legal profession shortly after the tum of this
century when these codes of conduct were first promulgated may be debatable; at that
time the images were certainly commonplace enough in larger Canadian society.2
Whether they are still appropriate to a legal profession soon facing the turn of another
century is not debatable. The old ideal that lawyers should be gentlemen (and not
businessmen), ministers, and officers continues unexamined in the metaphoric networks
of even the most recent codes of conduct, with potentially harmful consequences.

I examine the codes of conduct produced by the American Bar Association in 1908,
1969 and 1983,3 those promulgated by the Canadian Bar Association in 1920, 1974,
and 1987,4 and a recent code of conduct .ratified by the Law Society of Alberta. 5 The

The most common metaphors, not dealt with in this article, are those clustered around the idea that
"seeing is knowing." Directives which tell lawyers expressing their views to give open and
undisguised advice that clearly discloses what the lawyer honestly thinks, to speak out if they see
an injustice when they observe the workings and discover the strengths and weaknesses of laws
and legal institutions, to do nothing that reflects adversely on the profession, to recognize the limits
of their competence, and to reveal potential conflicts of interest are illustrations of this metaphoric
network. More interesting in this context are the multiple meanings of appearance. For example,
lawyers are directed not to appear before a judge if their past association with that judge would
create the appearance of impropriety. A lawyer who appears on behalf of a client is representing
that other person.
See M. Valverde, The Age of light, Soap, and Water (Toronto: McClelland & Stewart, 1991).
American Bar Association, Canons of Professional Ethics ( 1908) [hereinafter ABA 1908 Canons];
American Bar Association, Model Code of Professional Responsibility ( 1981) (originally published
1969) [hereinafter ABA Model Code]; and American Bar Association, Model Rules of Professional
Conduct (1983) [hereinafter ABA Model Rules].
Canadian Bar Association, Canons of legal Ethics (1920) [hereinafter CBA 1920 Canons];
Canadian Bar Association, Code of Professional Conduct (1974) [hereinafter CBA 1974 Code];
and Canadian Bar Association, Code of Professional Conduct (1987) [hereinafter CBA 1987
Code]. The CBA 1920 Canons were adopted by the law societies in British Columbia, Alberta,
Saskatchewan, Manitoba, and Ontario between January and June of 1921. The CBA 1974 Code
was adopted by the associations' governing body, the National Council, without a dissenting vote
and by some provinces in its entirety. It formed the basis of other provinces' own ethical
standards. The CBA 1987 Code was also adopted by the National Council without a dissenting
vote.
The Law Society of Alberta, Alberta Code of Professional Conduct (1995: Alberta Law Society,
Calgary) [hereinafter 1995 Alberta Code]. In the original presentation of this article, the Proposed
Code of Professional Conduct (Discussion Draft -November, 1992) was referred to, as the 1995
Alberta Code had yet to come into effect. All references to the Proposed Code have been amended
to reflect the content of the 1995 Alberta Code. The November 1992 draft had been circulated to
all members of the Law Society. The text was substantially revised after more than one hundred
written submissions were received from members and numerous subsequent hearings were held
by the Code of Conduct Committee. An April 1994 draft was presented to the Benchers in June
1994. That draft was also revised. The September 1994 draft was considered by the Benchers at
 METAPHORS OF LAWYERS' PROFESSIONALISM 835

ABA 1908 Canons drew heavily on George Sharswood's Essay on Professional Ethics,
published in 1854.6 As is obvious from any side-by-side reading of the two, the genesis
of the CBA 1920 Canons was the ABA 1908 Canons, 7 in part because of long-
standing contacts between leading Canadian lawyers and their U.S. counterparts in the
early 1900s.8 The influence of the ABA Model Code is also apparent in the wording
of the two most recent codes of the Canadian Bar Association. The CBA 1987 Code,
the ABA Model Rules of 1983 and the 1995 Alberta Code are used as examples of
recent texts.

Why look to codes of conduct? First, the existence of a code of conduct "is often
thought to be the very essence of professionalism." 9 Insofar as most definitions of
professions consist of a set of attributes, the promulgation of ethical standards is
typically included in that set. Second, "professionals themselves play the most important
part in the definition or redefinition of their public image" 10 and these codes of
conduct were written by (some) members of the profession. 11 The meanings of the

a meeting on September 22, 1994. The September 1994 version was substantially adopted by the
Benchers and the new 1995 Alberta Code came into effect on January 1, 1995.
J.S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (New York:
Oxford University Press, 1976) at 41.
Proceedings of the Fifth Annual Meeting of the Canadian Bar Association (Winnipeg: Bulman
Bros., 1920) at 95 (statement of Angus MacMurchy, K.C., of Toronto, Convenor of the CBA's
Standing Committee on Legal Ethics).
W.W. Pue, "Becoming 'Ethical': Lawyers' Professional Ethics in Early Twentieth Century Canada"
(1991) 20 Man. L.J. 227 at 257 [hereinafter "Becoming 'Ethical"'] (also published in D. Gibson
& W.W. Pue, eds., Glimpses of Canadian Legal History (Winnipeg: Legal Research Institute,
University of Manitoba, 1991) 237).
H.W. Arthurs, "Codes of Professional Ethics" in H.W. Arthurs, D.L. Mills & G. Starr, eds.,
Materials on the Canadian Legal Profession (Osgoode Hall School of Law, 1985) [unpublished]
247 at 247, quoted in "Becoming 'Ethical,'" ibid. at 229.
10
M.S. Larson, "Depoliticization and Lawyers' Functions: Reflections for a Comparative Analysis"
(1986) 24 Osgoode Hall L.J. 743 at 744, 3n.
II
The members of the CBA's Standing Committee on Legal Ethics which drafted the CBA 1920
Canons were all male, all prominent in the profession. See Proceedings of the Fifth Annual
Meeting of The Canadian Bar Association, supra note 7. That Committee, like the CBA itself in
its early years, was dominated by elite Anglo-Canadian prairie lawyers and judges. See W.W. Pue,
"Lawyers and the Constitution of Political Society: Containing Radicalism and Maintaining Order
in Prairie Canada, 1900-1930" (Working Paper 93-4, University of Manitoba Canadian Legal
History Project) at 4 [unpublished] [hereinafter "Containing Radicalism"].
The CBA 1974 Code was drafted by a Special Committee on Legal Ethics under the
chairmanship ofS.E. Fennell, Q.C., LL.D., a Past President of the Association. The Committee had
eight other members, including one law school dean, one judge and four other Q.C. 's. All were
men. The two research directors and the Committee's counsel were also men. The CBA 1987 Code
was produced by a "Committee to Revise the Code of Professional Conduct" chaired by Robert
P. Fraser, Q.C. The other members of that Committee were: William Mingel, Q.C., of Halifax, also
a member of the original 1974 Committee; Barbara Stanley of Saint John, N.B.; Batonnier Guy
Pfpin of Montreal; Edward Greenspan of Toronto; Jim McCarthy of Toronto; Knox Foster of
Winnipeg; Donald McKercher of Saskatoon; and G.R. Birchsmith of Vancouver. "All of them but
one or two are Past Presidents or Treasurers of the Law Society of the province in which they
reside(d]." See The 1986 Year Book of the Canadian Bar Association and the Minutes of
Proceedings of its Sixty-Eighth Annual Meeting (Ottawa: Canadian Bar Association, 1986) at 161.
The Code of Conduct Committee of The Law Society of Alberta was chaired by Ed Molstad,
who was also the President of the Law Society in 1993. All the members of the Committee were
836 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

metaphors in the codes of conduct are not contained within the boundaries of the texts
of the codes. A knowledge of the social contexts in which these texts were produced
is necessary. 12 These social relations - mainly of class, race/ethnicity, and gender -
cannot be ignored. 13 Indeed, these social relations are obvious in the metaphoric
networks in the texts of the codes to anyone who attends to them. One problem,
however, is that the metaphors which used to speak of lawyers' professionalism are so
commonplace within that particular discourse that they can be read literally, and thus
pass unnoticed. Third, the legal profession's norms as concretely (but not exclusively)
expressed in its codes and the content of those codes, show remarkable continuity, 14
as do the figures of speech contained in them. Indeed, a look at the metaphors of
professionalism in even the most recent codes of conduct suggests that this continuity
has been emphasized by their producers.

In the next part of this article, I provide some background on metaphors in general
and "dead" metaphors, such as those found in the codes of conduct, in particular. The
third, and largest, section of the article is organized around the metaphoric networks of
the military, Christianity and gentility. Examples are provided from each of the codes,
and from the words of those who produced those codes. Those networks are then, to
a limited extent, contextualized. The relationships among those networks are also noted.
In the conclusion, I raise some questions about the current contribution of each network
to the definition of lawyers' professionalism.

II. METAPHORIC BACKGROUND

Aristotle's definition of metaphor is the usual starting point: "Metaphor consists in

giving the thing a name that belongs to something else; the transference being either
from genus to species, or from species to genus, or from species to species, or on
grounds of analogy." 15 The terms "metaphor" and "metaphoric statement," as used

male; the draftsperson and the secretary were female.

The Committee appointed in 1964 to revise the ABA Canons was chaired by Edward L. Wright
and consisted of two law professors, two former judges, and eight lawyers in practice with
substantial law firms, including two former presidents of the American Bar Association and one
former chairman of its ethics committee. All were white, Christian and male. See M. Galanter and
T. Palay, Tournament of Lawyers: The Transformation of the Big Law Firm (Chicago: University
of Chicago Press, 1991) at 74-75.
Less than ten years later, the Kutak Commission was established to develop the ABA Model
Rules adopted in 1983. The original nine members of the Kutak Commission were all lawyers;
only three were private practitioners. That commission included a judge who was an outspoken
critic of the "hired gun" attitude, a woman who was a consumer advocate, a former law school
dean who was then president of the Legal Services Corporation, two law professors, and a retired
judge. See T. Schneyer, "Professionalism as Bar Politics: The Making of the Model Rules of
Professional Conduct" (1989) 14 Law & Social Inquiry 677 at 693-94.
12
Supra note 2 at 43.
ll
Ibid at 10.
14
G.C. Hazard, Jr., "The Future of Legal Ethics" (1991) 100 Yale L.J. 1239 at 1242.
IS
Aristotle, Poetics 1457 b 6-9 in R. McKeon, ed., The Basic Works of Aristotle, trans. I. Bywater
(New York: Random House, 1941) at 13, cited in P. Ricoeur, The Rule of Metaphor: Multi-
Disciplinary Studies of the Creation of Meaning in Language, trans. R. Czerny (Toronto:
University of Toronto Press, 1977).
 METAPHORS OF LA WYERS' PROFESSIONALISM 837

throughout this article, are not confined to metaphors as one figure of speech among
others, but rather refer to the transference principle common to all of them. 16 Part of
the thesis of this article is that the metaphors of lawyers' professionalism are not just
poetic or rhetorical devices with a merely decorative function. 17 They are a dominant
mode of comprehension and reasoning, as the inclusion of "analogy" in Aristotle's
definition should make apparent to lawyers.

One of the purposes of metaphors is to explain the unfamiliar in tenns of the

familiar. Like analogical reasoning, metaphors are a mapping of a previously known
source domain to a newer, less well-known target domain. 18 One idea is presented
"under the sign of another that is more striking or better known." 19 But in what sense
can one idea be called "previously known" or "more striking and better known"? It is
only in the sense of the idea as understood from the point of view of the producer or
speaker of the metaphor.

It may be more enlightening to say that "metaphor creates the similarity" than that
the "metaphor gives verbal fonn to some pre-existent similarity." 20 The underlying
rationale of the metaphor does not necessarily lie in direct resemblance. It can result
from a common attitude taken to both ideas. 21 The use of metaphors implies that
participants share the metaphors' cultural and psychological content, so that everyone
knows when a metaphor is appropriate and, more importantly, which metaphor is
appropriate and what it is intended to signify. 22

There are three other important points to note in connection with metaphors of
lawyers' professionalism. The first is that they are systemic, with a cognitive, non-
arbitrary dimension. The principal metaphors examined in this article are part of three
metaphoric networks. The referential function of the metaphor is carried by these
metaphoric networks, and not by isolated words or phrases.

16
N. Goodman, Languages of Art, An Approach to a Theory of Symbols (Indianapolis: Bobbs-
Merrill, 1968) at 81-83, cited in Ricoeur, ibid. at 237. The study of metaphors is interdisciplinary.
It is the province of linguists, psychologists, cultural anthropologists, philosophers, theologians,
literary critics and others. Metaphors have also received some attention from the legal profession,
or at least the academic branch thereof. See e.g. S.L. Winter, "Transcendental Nonsense,
Metaphoric Reasoning, and the Cognitive Stakes for Law" (1989) 137 U. Pa. L. Rev. 1105; P.
Schlag, "Missing Pieces: A Cognitive Approach to Law" (1989) 67 Tex. L. Rev. 1195.
17
Metaphors (along with hyperbole, metonymy, irony, etc.) can also be classed as merely one of the
ten or so tropes within semantics. Such a definition of tropes does, in fact, involve the idea of
single concepts and their ornamentation. See C. Segre, Introduction to the Analysis of the Literary
Text, trans. J. Meddemmen (Bloomington: Indiana University Press, 1988) at 259-60.
Ill
G.M. White, "Proverb and Cultural Models: An American Psychology of Problem Solving" in D.
Holland & N. Quinn, eds., Cultural Models in Language and Thought (Cambridge: Cambridge
University Press, 1987) I 51 at I 54; G. Lakoff & M. Johnson, Metaphors We Live By (Chicago:
University of Chicago Press, 1980) at 5.
19
P. Fontanier, Les Figures du discours (Paris: Flammarion, 1968) at 99, cited in Ricoeur, supra note
15 at 57.
20
Max Black, Models and Metaphor (Ithaca: Cornell University Press, 1962) cited in Ricoeur, ibid.
at 86.
11
Ricoeur, ibid. at 81-82.
11
R.T. Lakoff, Talking Power: The Politics of Language (New York: Basic Books, 1990) at 103.
838 ALBERTA LAW REVIEW [VOL. XXXIII,NO. 4 1995]

The second point is that the metaphors of lawyers' professionalism - or, at least,
the predominant ones examined here - are what have been called used, worn-out, or
"dead" metaphors.23 Dead metaphors are well-known truths, part of "popular
wisdom."24 Their usage is habitual. Some of them have been used in such a fixed and
standard fashion for so long that they act like a literal meaning. In fact, it is arguable
that dead metaphors are not metaphors at all, for once they are adopted by a significant
part of a culture, they become a common meaning, enter into the lexicon, and merely
increase polysemy.25 For example, the Oxford English Dictionary notes that the word
"gentleman" is "used (with more or less of its literal meaning) as a complimentary
designation of a member of certain societies or professions."26 We cannot interpret
metaphors unless we first perceive the incompatibility of the non-figurative meaning
of the metaphoric statement with the rest of the context.27 There is no incompatibility,
no tension between "is" and "is not, at the literal level with such banal metaphors.28
11

There is another way of looking at such metaphors, however. In the used, worn-out
metaphor, it is thought that metaphoricity functions in spite of us, behind our backs so
to speak, as a sort of linguistic surplus value functioning unknown to speakers.29 We
are unaware that the language has slipped from the literal to the figurative. One
category melts into another; metaphors are mixed promiscuously with literal truth.30
From this perspective, worn-out metaphors can be seen as even more powerful than
freshly coined ones, in much the same way that Niet7.schesaid "truths are illusions of
which one has forgotten that they are illusions."31

While the first understanding of dead metaphors may be appropriate to their use in
poetry, the second seems suited to their use in codes of conduct. These codes are
examples of the directive use of language, statements meant to persuade and to control
behaviour.32 The metaphors within these codes are indirect directives. They are
evaluative assumptions that take the form of descriptions, but have the effect of
suggestions or commands themselves.33 Telling lawyers to behave like "gentlemen"
is not a step-by-step directive. Rather, it is aimed at producing in those to whom it is

2)
Ricoeur, supra note 15 at 99.
24
White, supra note 18 at 151.
2S
Ricoeur, supra note IS at 99, 162.
26
Oxford English Dictionary, 2d ed. (Oxford: Clarendon, 1989) [hereinafter OED].
27
M. Le Guem, Semantique de la metaphore et de la metonymie {Paris: Larousse, 1973) at 16, cited
in Ricoeur, supra note 15 at 183.
28
Ricoeur, ibid. at 214.
29
J. Derrida, "White Mythology," trans. F.C.T. Moore (1974) 6:1 New Literary History 5 at 7, cited
in ibid. at 285.
30
Supra note 22 at 183.
)I
M. Heidegger, On the Way to Language, trans. P.D. Hertz (New York: Harper & Row, 1971) at
1S, quoted in Ricoeur, supra note IS at 286 [emphasis in the original].
S.l. Hayakawa & A.R. Hayakawa, Language in Thought and Action, 5th ed. (San Diego: Harcourt
Brace, t 990) at 65.
ll
White, supra note t 8 at t 52.
 METAPHORS OF LAWYERS' PROFESSIONALISM 839

directed the right type of consciousness.34 Having been told that lawyers should act
as gentlemen, readers are entrusted to know exactly how to put this into practice. 35

Another preliminary point needs to be added here about "literal meaning."

Superficially, metaphors contrast figurative meaning with literal meaning. The
difference between the two is that the literal meaning is Iexicalized. 36 The task of
writing a dictionary 37 begins with the lexicographer reading what has been written by
writers of some literary or historical importance. As the lexicographers read, they note
every interesting or rare word, every unusual or peculiar occurrence of a common word,
a large number of common words in their ordinary uses, and also the sentences in
which each of these words appears. After these have been collected, there will be
anywhere from two or three to several hundred illustrative quotations for each word.
To define a word, a dictionary editor works with the actual uses of that word and what
the collected quotations reveal about that word. A lexical meaning therefore says
nothing about what a word ought to mean (its "proper" meaning):

The writing of a dictionary is not, therefore, the task of setting up authoritative statements about the
"true meanings" of words, but a task of recording, to the best of one's ability, what various words have
meant to authors in the distant or immediate past. The writer of a dictionary is a historian, not a
lawgiver. 38

The third point is the rather trite one (in some disciplines) that metaphors are
necessary to human thought. One cannot communicate without them. However, to say
that directives of lawyers' professionalism require the use of metaphors is not to say
that we should be content with metaphoric statements that persist when the reality that
lays behind them has changed.

III. METAPHORIC NETWORKS IN THE CODES OF CONDUCT

A. MILITARY METAPHORS

Judge George Sharswood, whose Essay on Professional Ethics, published in 1854

and a predecessor to the ABA 1908 Canons, introduced military metaphors to written
codes of conduct when he wrote:

Nothing is more certain than that the practitioner will find, in the long run, the good opinion of his
professional brethren of more importance than of what is commonly called the public. The good
opinion and confidence of members of the same profession, like the King's name on the field of battle,
is a tower of strength ... the title of legitimacy.39

~
Supra note 2 at 41.
3S
Ibid.
36
Ricoeur, supra note IS at 291.
37
See supra note 32 at 34-35.
38
Ibid. [emphasis in original].
39 Quoted in T.L. Shaffer, "The Profession as a Moral Teacher" (1986) 18 St. Mary's L.J. 195 at 195-
96. [Emphasis added. All emphasis used in this article has been added, unless otherwise noted].
840 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

Canon 22 of the ABA 1908 Canons speaks of lawyers as "ofjicer[s] of the law
charged ... with the duty of aiding in the administration of justice." Canon 29 requires
a lawyer to "aid in guarding the Bar against the admission to the profession of
candidates unfit or unqualified because deficient in either moral character or
education.1140

In Canon 1(4) of the CBA 1920 Canons, the lawyer is warned that it is "highly non-
professional in a lawyer to stir up strife or litigation." Canon 3(7) commands a lawyer
to "scrupulously guard and not divulge his client's secrets or confidences." He41 is to
agree to arrangements that suit the convenience of "opposing counsel" so long as the
"cause of justice will not be injured by doing so."42 In a repetition of Canon 29 of the
ABA 1908 Canons, Canon 5(2) of the CBA 1920 Canons states that "[i]t is the duty
of every lawyer to guard the Bar against the admission to the profession of any
candidate whose moral character or education unfits him for admission thereto."

These military metaphors would have spoken powerfully to the generation that wrote
the CBA 1920 Canons, a generation that had experienced the Riel Rebellion, the Boer
War and, contemporaneously, the Great War. Somewhat surprisingly, the number of
military metaphors actually increases in the more modem codes of conduct. Perhaps
this is only because the later codes are much longer, setting out not only the short rules
found in the tum-of-the-century codes, but also lengthy commentaries on those rules.
It is in these commentaries or elaborations and illustrations of the more prosaic rules,
that the more figurative language predominates.

The ABA Model Code uses a military metaphor in its preamble: "Lawyers, as
guardians of the law, play a vital role in the preservation of society." Many of the
ethical considerations speak of the need for lawyers to protect, guard and safeguard,
whether it be the lawyer's own reputation, his clients, the legal profession, the courts,
or the administration of justice. 43 Ethical Consideration 5-944 refers to the problem
of a lawyer "challenging the credibility" of another lawyer who acts as both advocate
and witness and insists that "the function of an advocate is to advance or argue the
cause of another." Note 2 to Canon 1 refers to the power of the court "to guard its
portals against intrusion." Note 14 to Canon I characterizes the lawyer "as a shield."
Note 1 to Canon 5 describes an advocate as a "champion." Note 23 to the same Canon

This metaphoric statement is also part of the gentility network. For one example from that network
warning of the danger to the profession when candidates are "deficient in either moral character
or education," see text accompanying infra note 135.
41
Unlike its use in the codes of conduct, my use of the masculine pronoun, here and elsewhere in
this article, is gender-specific, and not generic.
42
CBA 1920 Canons, supra note 4, Canon 4(2).
4)
See e.g. ABA Model Code, supra note 3 at EC 4-2, EC 5-13, and EC 7-29.
The ABA Model Code has three separate but interrelated parts: Canons, Ethical Considerations
[hereinafter EC], and Disciplinary Rules. As explained in the preliminary statement to that code,
the Canons are "statements of axiomatic norms"; the Ethical Considerations are "aspirational in
character and represent the objectives toward which every member of the profession should strive";
and the Disciplinary Rules, mandatory in nature, state "the minimum level of conduct below which
no lawyer can fall without being subject to disciplinary action."
 METAPHORS OF LAWYERS' PROFESSIONALISM 841

speaks of a lawyer's ''fealty," recalling feudal lords and their vassals,45 as do the
references to "allegiance" in Note 3 to Canon 7 and to "safeguard[ing] his fidelity as
a lawyer" in EC 5-13.46

The recent ABA Model Rules assert in their preamble that a lawyer, who "play[s]
a vital role in the preservation of society," is "an officer of the legal system," and must
be ready to "challenge the rectitude of official action." However, as stated in the ABA
Model Rules, the Rules themselves are not to be "invoked by opposing parties as
procedural weapons," for "an antagonist in a collateral proceeding or transaction has
[no] standing to seek enforcement of [a] Rule." The commentaries to various Rules go
on to speak of surrendering rights, 47 of being "not bound to press for every
advantage,"48 of the ''pursuit of an appeal,"49 of strategy and tactics, so of defending
against a charge,51 of "the potential intensity of the conjlict," 52 of the need that
evidence be "marshalled competitively by the contending parties, 1153 of prevailing, 54
and of overwhelming. 55

The prefaces to both the CBA 1974 Code and the CBA 1987 Code assert that
lawyers "must command the confidence and respect of the public" in order to satisfy
the public's need for legal services from a "trusted adviser" whose "integrity,
competence and loyalty are assured." Once again the lawyer is warned to guard against
numerous evils. 56 Note 6 to chapter 3 in both Codes contains the following quote:
"The arms which (the lawyer) wields are to be the arms of the warrior and not of the
assassin." Chapter 11, Commentary 7 of the CBA 1974 Code admonishes the lawyer
that he "should not desert his client at a critical stage of a matter or at a time when his
withdrawal would put the client in a position of disadvantage or peril." There are
numerous other examples of the military metaphoric network in the CBA 1974 Code
(and corresponding references in the CBA 1987 Code), such as references to securing

4S
Professor W. Wesley Pue pointed out to me that there may be an important difference between the
military metaphoric network and that derived more directly from feudal ordering (albeit that feudal
ordering itself can be seen as derived from military needs). He noted that feudalism invokes a
notion of reciprocity of obligation, which modem military structures are more reluctant to concede.
46
For an argument that "(t]he Feudal practices of patronage are alive and well in lawyering," see A.
Rhodes-Little, "Teaching Lawyering Skills for the Real World: Whose Reality? Which World? Or
the Closing of the Australian Legal Mind" in I. Duncanson, ed., (1991) 9:2 Law In Context,
Special Issue on Legal Education and Legal Knowledge 47 at 59.
47
ABA Model Code, supra note 3, r. 1.2, Comment, para. 5.
48
Ibid., r. 1.3, Comment, para. I.
49
Ibid., r. 1.3, Comment, para. 3.
so Ibid, r. 1.4, Comment, para. 2.
SI
Ibid., r. 1.6, Comment, para. 18.
S2
Ibid., r. 1.7, Comment, para. 13.
SJ
Ibid., r. 3.4, Comment, para. 1.
S4
Ibid., r. 7.2, Comment, para. I.
ss Ibid., r. 7.3, Comment, para. 2. This is a non-exhaustive list, for there are many examples of the
more commonplace guarding against, protecting, defending and challenging.
S6 See e.g. CBA 1974 Code, supra note 4 and CBA 1987 Code, supra note 4 at c. 4, Commentary
8 and c. 5, Commentary S. CBA 1974 Code, ibid. at c. 3, Commentary 6; and CBA 1987 Code,
ibid. at c. 3, Commentary 7 warn the lawyer to be on "guard against becoming the tool or dupe
of an unscrupulous client."
842 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995)

some advantage,57 to defeating or impairing a claim, 58 to breaches of rules, 59 to

orders of a client, 60 to seizing property, 61 to attacking evidence, 62 to justifying
withdrawal, 63 to being the target of unjust criticism, 64 and to offensive tactics.65

The 1995 Alberta Code, in its preface alone, provides another illustration of the
prevalence of the military metaphoric network in modern codes of conduct. The Preface
includes references to lawyers' "vital role in the protection and advancement of
individual rights and liberties," to the need for their "obedience to the law," to the code
"prevail[ing] in the event of a conflict," to their need to "be vigilant" and to
''procedural weapon[s}." 66 Of course, there are many other examples within this text
of the banal: breach, challenge, evasion, defence, invasion, protection, threat, strategy,
shield, obstruct, force, and so on. 67

Part of the ideology of the legal profession at the turn of the century included an
emphasis on "duty" and "service." 68 At the time of the Great War and the 1919
Winnipeg General Strike, a need for respect for authority, implicit in military
metaphors, would have been commonplace wisdom to the leaders of the bar who
formed the Canadian Bar Association. Language recalling fidelity and duty to the state
would have been incorporated into the CBA 1920 Canons because it coincided with "a
genuinely held wider ideology [and) conception of appropriate social ordering." 69 The
organized bar of that time was only one of many volunteer organizations who thought
that it was "of vital importance that the traditional British respect for law, order, and
authority should be maintained at all costs. 1170

The military metaphors in the codes of conduct are coherent with the more generally
prevalent metaphor, within the Anglo-American adversary systems, that "argument is
war." 71 Claims are "indefensible"; we "attack weak points"; arguments are "shot

S7
CBA 1974 Code, supra note 4, c. 3, Commentary 8.
SI
Ibid, c. 3, Commentary 10.
S9
Ibid, c. 5, Commentary 6.
60
Ibid, c. 7, Commentary 4.
61
Ibid., c. 7, Commentary 6.
61
Ibid., c. 8, Commentary 9.
63
Ibid., c. 11, Commentary 6.
64
Ibid., c. 12, Commentary 4.
6S
Ibid, c. 16, Commentary 2.
66
1995 Alberta Code, supra note S at iii, iv.
67
See e.g. 1995 Alberta Code, supra note 5, c. 1, Commentaries 1, 2, 3, and 7; c. 2, Commentary
G.l(c)(v); c. 3, Commentaries 4 and S; c. 4, Commentaries G.2 and 4; and c. 6, Commentaries 3
and 5.
68
J.H. Cohen, The Law: Business or Profession? (New York: Banks Law, 1916) at 158-59, cited in
Pue, "Containing Radicalism," supra note 11 at 17.
69
Pue, ibid. at 21, 77n.
70
Supra note 2 at 1OS.
71
A version of the "argument is war" metaphor is "the sporting theory of justice." In his text on
professional responsibility, Gavin MacKenzie notes that "the resemblance between adversarial trials
and hearings and athletic contests and other games has frequently been recognized.": G.
MacKenzie, Lawyers and Ethics: Professional Responsibility and Discipline (Toronto: Carswell,
1993) at 2-1. In 1906, in a well-known address, "The Causes of Dissatisfaction with the
 METAPHORS OF LA WYERS' PROFESSIONALISM 843

down." This is not just talk. We actually "win" or "lose" legal arguments, characterize
others as "opponents," "attack" opposing counsel's arguments, and "defend" our own. 72

In addition to historical duties owed the state and respect for authority, both the
military metaphoric network in the codes of conduct and the "argument is war" concept
in the adversarial system invoke a "we" opposed to a "them." There are two sides: we
and our allies, who are "good" and they, who are "bad." 73 Irrelevant to such a
dichotomy are the proverbial "innocent civilians," the "public" whose interests are said
to be protected by the codes of conduct. 74 The use of military metaphors may also
invoke homogeneity, uniformity, and a hierarchical "no-questions" mode of behaviour
and thinking.

Military metaphors may also have been, at the time they were introduced into the
codes, connected to the "law is a profession, not a business" aspect of the gentility
metaphoric network explored later in this article. 75 One reason for the use of the war
metaphor, aside from invoking the goal of defeat of an enemy, is that war, traditionally,
was an activity that was not supposed to be subject to calculations of profitability. 76
No financial sacrifice was seen as excessive. So too, lawyers are expected to sacrifice
their own time and financial interests in certain instances. Insofar as such sacrifices
were, and are, expected in the case of legal services for the poor, there is also a
connection to the Christian metaphoric network. 77

B. CHRISTIANITY METAPHORS

David J. Brewer, an associate justice of the Supreme Court and a member of the
committee that drafted the ABA 1908 Canons, noted in their support that the ideal
lawyer "looks above the golden calf and the shouting crowd, and ever sees on the lofty
summits of Sinai the tables of stone chiselled with imperishable truth by the finger of
God."78 The preamble to the ABA 1908 Canons pontifies that "[t]he future of the

Administration of Justice" 29 ABA Rep. 395 at 404, quoted in ibid. at 2-1, Harvard Dean Roscoe
Pound identified the pervasiveness of this metaphor as one of the causes of the public's
dissatisfaction. I would note that athletic contests and other games have resemblances to war and
the military, and it is not surprising that lawyering is described both in terms of war and in terms
of sports, both of which are described in terms of each other as well.
71
See Lakoff & Johnson, supra note 18 at 4.
7J
Lakoff, supra note 22 at 195.
See e.g. the preface to the CBA 1974 Code ("The principle of protection of the public interest will
serve to guide the reader to the true intent of the Code") and the preface to the 1995 Alberta Code
("[R]ules and regulations [of the legal profession] must be cast in the public interest...").
7S
See text accompanying infra note 134.
76
Ibid. l use the past tense after noting the prevalence of market terminology in media reports
concerning the invasion of Haiti approved by the United Nations in the summer of 1994. See e.g.
D.H. Hackworth, "A Soldier's-Eye View" Newsweek (22 August 1994) 33: "The American
invasion fleet should be brought home and the costly embargo lifted. U.S. national security is not
at stake. Embargoes don't work. And American taxpayers' pockets aren't deep enough to bail Haiti
out of a mess that has been 500 years in the making."
n See text accompanying infra notes 105 and 106.
78
David J. Brewer, "The Ideal Lawyer" Atlantic Monthly (November 1906) 596 cited in Auerbach,
supra note 6 at 5 I.
844 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

Republic, to a great extent, depends upon our maintenance of Justice pure and
unsullied." The ABA 1908 Canons also speak of "brethren at the Bar," 79 "brother
lawyers, and ... their widows and orphans, 1180 and of "the law whose ministers we
are."81 While the lawyer may owe "entire devotion to the interest of the client," 82 he
was also warned to "never minister to the malevolence or prejudices of a client." 83

The CBA 1920 Canons adopted the ecclesiastical title of its American predecessor.
The preamble to the CBA 1920 Canons, however, begins with a more prosaic and
common-place Christian metaphor (as well as a military one): "The lawyer is more than
a mere citizen. He is a minister of justice, an officer of the Courts, his client's advocate,
and a member of an ancient, honourable and learned profession."

In the discussion following the introduction of the motion to adopt the CBA 1920
Canons, the Honourable John B.M. Baxter, K.C. used other religious metaphors when
he stated:

[I]n setting any guide, we ought to remember that there is a something that distinguishes the reaJ
professions from those which in this very modem day acquire the name of professions without having
the spirit. The spirit of a profession is, I think, the spirit of service. When the spirit of service is lost,
the soul of the profession, without which it cannot exist, is gone. 84

The text of the ABA 1908 Canons and the CBA 1920 Canons, and the speeches of
those who produced them, may strike contemporary readers as value-laden and
excessive, as the mere flowery rhetoric of another time. 85 Rather than dismiss them,
however, contemporary readers should bear in mind that what now seem to be
rhetorical excesses were invisible to the reader of their period, and invisible precisely
because they were familiar. 86 The concept of moral reform, of the need for "better
men," was part of the dominant culture of the Anglo-Canadian middle and upper classes
of that period. As recently as 1982, a former Chief Justice of the Trial Division of the
Supreme Court of Alberta, J.V.H. Milvain, in characterizing his vision of law professors
and their role in fostering ethical behaviour within the profession, used similar rhetoric
when he stated that "[t]hey should be priests in the Temple of Law, and not
iconoclasts."81

In connection with the metaphors of Christianity, it should also be noted that the
discourses of the legal profession - the "organized sets of signifying practices that

79
ABA 1908 Canons, supra note 3, Canon 7.
80
Ibid, Canon 12.
RI
Ibid., Canon 32.
112
Ibid., Canon 15.
R)
Ibid., Canon 18.
M
Proceedings of the Fifth Annual Meeting of The Canadian Bar Association, supra note 7 at I 02.
IIS
Supra note 2 at 34.
86
Ibid.
87
The Honourable J.V.H. Milvain, Calgary Bar Association Oral History Project (26 May 1982) at
72 [unpublished].
 METAPHORS OF LAWYERS' PROFESSIONALISM 845

often cross the nineteenth-century boundary between 'reality' and 'language"' 88 -

include more than linguistic formulations. The signifying practices of the legal
profession include the architectural design of its courtrooms, which are constructed
along the lines of a medieval church. They have a "nave," where the public sits; an
enclosed "chancel," for the prisoners, jury, lawyers, and clerks; and an elevated
"sanctuary," for the judges. 89

The ABA Model Code, first promulgated in 1969, contains the following Christian
metaphors in its preamble and preliminary statement: "standards by which to judge the
transgressor"; "within his own conscience"; and "inspirational guide." One of the
Ethical Considerations to Canon 4 on Confidentiality90 (the ABA Model Code retains
the ecclesiastical chapter titles) refers to "the sanctity of all confidences and secrets,"
calling to mind the confessional. Part of Canon 9, which requires a lawyer to avoid
even the appearance of professional impropriety, states that "[e]very lawyer owes a
solemn duty to uphold the integrity and honour of his profession," which includes a
duty "to cooperate with his brother lawyers in supporting the organized bar through the
devoting of his time, efforts, and financial support." 91

The ABA Model Rules direct the lawyer to "hold inviolate" the confidential
information of the client. 92 It is said that an advocate "does not vouch for the evidence
submitted in a cause." 93 Comment 1 to Rule 3.8 notes that "[a] prosecutor has the
responsibility of a minister of justice and not simply that of an advocate."

Both the CBA 1974 Code and the CBA 1987 Code speak of "sacrifice," in terms of
"the public interest [that] must not be or appear to be sacrificecf' 94 and of the lawyer's
duty not to take advantage of another lawyer's mistakes not involving "the sacrifice of
the client's rights."95 The last rule in both of the CBA's most recent codes of conduct
requires the lawyer to "observe the rules of professional conduct set out in this Code
in the spirit as well as in the letter."96 This is necessary, in part, the commentary goes
on to say, in order "to inspire the confidence, respect and trust of his clients and the
community."97

88
Supra note 2 at IO.
19
Manner, Morals and Mayhem: A Look al the First Two Hundred Years of Law and Society in New
Brunswick (Fredericton: Public Legal lnfonnation Services, 1985) at 38. Peter Fitzpatrick, writing
about the legal profession in another context, argues that "[t]he whole community professionally
organized around law is redolent of religion, not just in the perception of outside observers but
also in its own self-presentation." (P. Fitzpatrick, The Mythology of Modern Law (London:
Routledge, 1992) at 181-82).
90
ABA Model Code, supra note 3 at EC 4-2.
91
Ibid at EC 9-6.
92
ABA Model Rules, supra note 3, r. 1.6, Comment, para. 2.
9)
Ibid., r. 3.3, Comment, para. I.
?4
CBA 1974 Code, supra note 4, c. 8, Commentary 10. In the equivalent provision of the CBA 1987
Code, supra note 4, c. 9, Commentary 12, the phrase was changed to "[t]he public interest and the
client's interests must not, however, be compromised by agreeing to a guilty plea."
9S CBA 1974 Code, ibid., c. 16, Commentary 4; CBA 1987 Code, ibid., c. 16, Commentary 4.
96
CBA 1974 Code, ibid., c. 17; and CBA 1987 Code, ibid, c. 19.
en CBA 1974 Code, ibid., c. 17, Commentary 9; CBA 1987 Code, ibid., c. 19, Commentary 10.
846 ALBERTA LAW REVIEW [VOL. xxxm, NO. 4 1995]

Even the 1995 Alberta Code makes use of a few religious metaphors. The preface
refers to the spirit of the Code. Commentaries to several of the rules refer to lawyers'
"dedication" such as their "dedication to the client's welfare." 98 Lawyers have to be
wary of pre-existing relationships that might "taint others by association." 99 References
to "good faith" arguments are commonplace, 100 as is the necessity for lawyers to
"devote" their attention. 101

The metaphors of Christianity and the references to law as one of the "real"
professions and an "ancient, honourable and learned" profession are historically and
definitionally related. One definition of "profession" is a "declaration, promise, or vow
made by one entering a religious order." 102 Another definition refers specifically to
the "three learned professions of divinity, law and medicine": those vocations "in which
a professed knowledge of some department of learning or science is used in its
application to the affairs of others or in the practice of an art founded upon it. 11103
Thus, the vocation of law is lexically (historically) connected to the action of avowing
a practice, or professing knowledge and skill.

The references to a "learned profession" and to law as one of the three "ancient and
learned professions" seem to be appeals. to the sort of ancient lineage that was the basis
of the aristocrat's position in the social hierarchy. Both antiquity and hierarchy are
connoted, as are respectability, refinement and class. 104 In adopting the archaic
"learned," the legal profession implies continuity with a great historical tradition, and
in doing so distances both itself from other occupations and its practitioners from
ordinary persons.

The notion in the preamble to the CBA 1920 Canons and in the quotation from
Baxter 105 - that "real" professions can be differentiated from those occupations only
claiming to be professions - appeals to "the spirit of service." This public service
claim ties into the "law is a profession, not a business" assertions to be explored in the
gentility metaphoric network. It also ties into the idea of the "sacrifice" of financial
gain. The "spirit of service" evoked is like that of the ministers of the Church, another
of the three "ancient and learned professions." This concept appears most clearly in the
rhetoric of legal aid to the poor, such as the following quotation from an American
writing in 1926 about the newly founded Legal Aid Bureau:

91
1995 Alberta Code, supra note 5, c. 2, Commentary 0.l(a).
99
Ibid., c. 6, Commentary 0.1 (conflict of interest prohibitions on lawyers acting personally, where
the disqualifying circumstance is sufficiently personal to the lawyer that it will presumably "not
taint" other members of the firm). See also ibid., c. 10, Commentary 9.1 (a lawyer's past
relationship with a judge is contemplated to be "sufficiently personal that others in the lawyer's
finn should be tainted by association").
100
See e.g. ibid., c. 10, Commentary 0.2.
IOI
See e.g. ibid., c. 14, Commentary 2(c).
102
OED, supra note 26.
103
Ibid.
1114
Professor W. Wesley Pue made these connections more explicit for me in his comments on an
earlier draft of this article.
IOS
See text accompanying supra note 84.
 METAPHORS OF LAWYERS' PROFESSIONALISM 847

The Legal Aid Bureau needs the fostering care of its spiritual parent, the Bar Association, as a
boarded-out child needs its natural mother. But the Bar Association needs the Legal Aid Bureau as an
aristocrat in Russia needs calloused hands. 106

However, even the ABA Model Rules of 1983 refer, in the preamble, to the need for
lawyers to "devote professional time and civic influence" on behalf of the poor.

C. GENTILITY METAPHORS

The other network of metaphors common in these codes of conduct, which both
speaks of the status of a professional and is tied historically to the military metaphors,
is that surrounding the image of a "gentleman." 107 A "gentleman" is, lexically, "a man
of gentle birth ...; properly one who is entitled to bear arms, though not ranking among
the nobility, ... but also applied to a person of distinction without precise definition of
rank. 11108 As previously noted, the literal meaning of "gentleman" has since become
almost synonymous with "professional. 11109

Mr. Justice William Renwick Riddell of Ontario was one of only a few members of
the legal profession to oppose the development of a written code of ethics by the
Canadian Bar Association. 110 In an address delivered to that association in 1919 on
the topic of "A Code of Legal Ethics," he noted that lawyers should be encouraged to
aspire to the highest standards of conduct of a "scholar, gentleman, and Christian." 111
A code imposing only this requirement was seen by him as "superfluous,
unnecessary." 112 However, Riddell's paternalistic vision of professionalism apparently
seemed anachronistic to the vast majority of the leading members of the bar who were
in favour of a written code of ethics. 113

This _anachronistic vision of the lawyer as "scholar, gentleman, and Christian" was
written into the first Canadian code. The last rule in the CBA 1920 Canons, Canon
5(7), maintained:

He should also bear in mind that he can only maintain the high traditions of his profession by being
in fact as well as in name a gentleman.

106
J.A. Hamilton, "Legal Aid Work and the Bar" (1926) Annals 124 at 147, quoted in M. Grossberg,
"Counsel for the Poor? Legal Aid Societies and the Creation of Modem Urban Legal Structure
1900-1930" (University of British Columbia Legal History Papers, 1994-95) [unpublished].
107
As Professor W. Wesley Pue noted, in commenting on an earlier version of this article, the cultural
construction of the qualities of a "gentleman" merits a full article in its own right by someone,
some time.
IOI
OED, supra note 26.
109
See text accompanying supra note 26.
110
The ways in which the CBA first moved toward adoption of a "Code of Professional Ethics" and
the debate among the eminent lawyers as to the desirability of adopting any such code at all is set
out in "Becoming 'Ethical,'" supra note 8.
Ill W.R. Riddell, "A Code of Ethics" in Proceedings of the Fourth Annual Meeting of The Canadian
Bar Association (Ottawa: 1919) 136 at 139.
112
Ibid. at 140.
Ill
"Becoming 'Ethical,'" supra note 8 at 258.
848 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

The 1990-91 Alberta Bar Admission Course materials still included direct references
to the ideology of the "gentleman." "In general this duty has been expressed historically
in phraseology to the effect that lawyers are gentlemen and should act like gentlemen.
If lawyers act like gentlemen towards each other no problem should arise."114

Other examples of the gentility metaphoric network occur in the CBA 1920 Canons.
Canon 4(1), governing lawyers' "conduct and demeanour towards each other or towards
suitors in the case," required that "[a]ll personalities between them should be
scrupulously avoided as should also colloquies between counsel which cause delay and
promote unseemly wrangling." Canon 4(4) requires a lawyer to do nothing "repugnant
to his own sense of honour and propriety." Warning against advertising, Canon 5(3)
notes that "self-laudations defy the traditions and lower the tone of the lawyer's high
calling."

In the discussion following introduction of the motion to adopt the CBA 1920
Canons, Mr. R.B. Henderson of Toronto questioned whether it was desirable to adopt
a code of ethics at all, alleging that:

If we are careful to admit into our Bar the proper kind of men, then we are going to be protected from
the abuses which the code is meant to prevent One hesitates to use a word which has been very much
prostituted, but really the old idea, using the word in its best sense, of what a gentleman should be,
is what we want among our legal practitioners; and that cannot be taught, it seems to me, by codifying
the rules of ethics or morality. us

Colonel W.N. Ponton, K.C. responded to Mr. Henderson with a religious analogy,
saying:

Mr. Henderson has said, 'Let us close the portals, let us tile the door. Let us keep out those members
who are unworthy.' How can we? We have no means. We have no means of regulating the character
of those who are admitted to the various law societies. On the great moral law were founded the
churches - and, after all, the lawyers have helped the churches - and churches have their creeds ...;
and they are, after all, the great nuclei, the anchors, the strengtheners of religion. And so I believe a
creed like this cannot do any harm in this, which is the sorriest of trades and noblest of
professions ....We must be 'tall men, sun-crowned, who stand above the fog' in public duty and in
private thinking. 116

Both of these quotations also illustrate another part of the "gentility" metaphoric
network - that of "the law is a profession, not a business" - in their use of the
concepts of "prostituted' and "the sorriest of trades."

114
"The Lawyer's Obligations to his Profession" in The Legal Profession: Management and
Professional Skills (1990/91 Alberta Bar Admission Course materials, Legal Education Society of
Alberta) 1-28 at 1-28 (unpublished).
llS
Proceedings of the Fifth Annual Meeting of The Canadian Bar Association, supra note 7 at 98.
116
Ibid. at 105-06.
 METAPHORS OF LAWYERS' PROFESSIONALISM 849

The gentility metaphoric network in the early codes of conduct and the concept of
social ordering it invokes, as well as concerns with lawyers' status in the social order,
have cultural and political roots in a variety of nineteenth and early twentieth century
concerns - concerns which differed by region within this country. For example, in
New Brunswick shortly after the American Revolution, the governing elite of that
"unique Loyalist colony" sought to impose a "gentlemanlike" society, based on
principles of deference and hierarchy - an effort that floundered within the first twenty
years of the founding of the province. 117 In the Loyalist revival of the 1880s, that
province's legal profession lamented the passing (which was blamed on the rise of
responsible government and social egalitarianism) of the "polished, Anglican legal-
military elite." 118

In the mid-1800s in Ontario, the legal profession struggled to maintain what they
called a "government of gentlemen." 119 At that time and in that place, some of the
leaders of the bar felt that the order of society required the maintenance of a graded
social structure and that this structure's continuance was inseparable from the
aristocracy.120 Order was first secured by religious instruction, connecting to the
metaphors of Christianity (for that was the only meaning of religion in that time and
place). For many like Christopher Alexander Hagerman (militia officer, lawyer,
politician, and judge), "the established church was the key bulwark against immorality,
equality, and a godless democracy."121 The second source of order was the "advice and
example" of gentlemen, or the "regularly bred," as Sir John Beverley Robinson once
called them. 122 However, as an aristocracy was absent from the Upper Canadian
scene, lawyers were to fill the gap in the social structure.123 As John Strachan, the
Church of England Rector of York (Toronto) stated in 1826, "[l]awyers must, from the

117
Manners, Morals and Mayham, supra note 89 at I 0-11.
118
D.G. Bell, "Judicial Crisis in Post-Confederation New Brunswick" in D. Gibson & W.W. Pue, eds.,
supra note 8, 189 at 20 I.
119
R.L. Fraser, "' All the Privileges which Englishmen Possess': Order, Rights, and Constitutionalism
in Upper Canada" in R.L. Fraser, ed., Provincial Justice: Upper Canadian Portraits from the
Dictionary of Canadian Biography (Toronto: University of Toronto Press, 1992) xxi at xxix
[hereinafter "All the Privileges"].
120
Ibid.
121
R.L. Fraser, "Christopher Alexander Hagerman" in Provincial Justice, supra note 119, 85 at 95.
The reference to "a godless democracy" expresses the monarchical and aristocratic faith of many
members of the legal profession in Upper Canada and a fear of the influences of the revolutionary
changes in the late 1700s in France and in the Thirteen Colonies. "All the Privileges," supra note
119 at xxv. Similar sentiments were expressed by Winnipeg lawyer and founding President of the
Canadian Bar Association, Sir James Aikens, in his official address to that association in 1920,
when he asserted that the neglect of "popular suffrage" carried with it an "imminent danger of the
despotism not so much of individuals as of classes ...." (James Aikens, "The President's Address"
(1920) 56 Can. L.J. 308 at 309).
122 "All the Privileges," ibid. at xxxviii. Sir John Beverley Robinson (1791-1863) was a lawyer,
politician, judge and hereditary baronet who, more than any other single individual, is said to have
incarnated the hierarchical spirit at the heart of the rule of gentlemen (ibid.).
123 Reproduced in J.R.W. Gwynne-Timothy, Western 's First Century (London, Ont.: 1978) at 428,
cited by G. Blaine Baker, "Legal Education in Upper Canada, 1785-1889: The Law Society as
Educator" in D. Flaherty, ed., Essays in the History of Canadian Law, 2:55 (Toronto: Osgoode
Society) quoted in ibid. at xlvii.
850 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

very nature of our political institutions - from there being no great landed proprietors
- no privileged orders - become the most powerful profession, and must in time
possess more influence and authority than any other."124

The status of professionals tends to be questioned most vigorously in times of

populist politics, and the early decades of the twentieth century on the Canadian prairies
saw the ascendancy of the Progressive and United Farmer political parties, the massive
display of the Winnipeg General Strike, and waves of new immigrants to the west from
southern and eastern Europe.' 25 The profession's concerns with social order and
status, and its ethnocentrism, are illustrated by the following quotation from the
Committee on Legal Ethics to the annual meeting of the Canadian Bar Association in
1919:

In view of the changed and changing conditions of this country, and the large number of students now
admitted to practice, many of whom come from various countries whose traditions and surroundings
have not been similar to those of our own and the Motherland, the time may be considered as having
arrived when it is necessary to reduce to writing for the informationof members of the Bar and the
guidance of our law students some of the most general important principles governing the conduct of
the profession....126

The CBA 1920 Code, a justification of the continuation of the status quo, was a
response to the populist reforms of its times and of the place of the association's
founding members, 127 but it also recalled the nineteenth century concerns of the more
established profession in Ontario and the east.

The gentility metaphoric network and concerns with lawyers' status in the social
structure carry through into the more recent codes and conversations of the bar. The
Preamble to the ABA Model Code refers to law as a "noble profession." Ethical
Consideration 9-6 states: "Every lawyer owes a solemn duty ... to act as a member of
a learned profession."

In the CBA 1974 Code, Commentary 9 of Rule XVII requires a lawyer to

"endeavour to conduct himself at all times so as to reflect credit on the legal
profession." Chapter 8, Commentary 3, notes that a lawyer who appears as a witness
"should not expect to receive special treatment by reason of his professional
status." 128 Chapter 11, Commentary 12 disdains "unseemly rivalry."129 In
Commentary 3 to chapter 12, a reference to the lawyer's "position in the community"
notes that "[h]is responsibilities are greater than those of a private citizen."130
Commentary 3 in chapter 14 of the CBA 1974 Code states that there is a "proper tone

124
Ibid at xxix.
125
"Becoming 'Ethical,'" supra note 8 at 257.
126
"Report of the Committee on Legal Ethics" (1919) 55 Can. L.J. 294 at 296-97.
127
"Becoming 'Ethical,"' supra note 8 at 258.
128
See also CBA 1987 Code, supra note 4, c. 9, Commentary 5.
129
See also ibid., c. 12, Commentary 10.
IJO
See also ibid., c. 13, Commentary 3.
 METAPHORS OF LAWYERS' PROFESSIONALISM 851

of a professional communication from a lawyer."131 Commentary 6 to Rule VII in the

CBA 1987 Code, concerning outside interests of the lawyer, states that in order to be
compatible with the practice of law, an outside interest "must be an honourable one that
does not detract from the status of the lawyer or the legal profession generally." One
would have to concede that lawyers are still respected, because of their social position,
at a time when practitioners are lamenting the lack of prestige and esteem accorded to
them and their profession. 132

In chapter 1 of the 1995 Alberta Code, the Statement of Principle refers to the
"privileges accorded the legal profession." The elaboration of this principle, in
Commentary G.l, states that because of such "privileges" and "exclusive entitlement,"
lawyers "have certain enhanced responsibilities to society." Commentary 1 in the same
chapter states that behaviour that is "notorious" or has a "dishonourable element ... is
the kind of conduct that may invoke ethical sanction." Commentary 6 in the same
chapter refers to lawyers' "position of privilege," to the ''position in society held by a
member of the legal profession," and to lawyers' "dominant position." In chapter 13 on
fees, Rule 1(d) refers to the "customary charges of other lawyers of equal standing in
the locality," and Commentary G.l warns that fee disputes may "discredit the
profession in the eyes of the public." In chapter 14 on withdrawal, Rule 1(b) states that
a lawyer is entitled to withdraw if a "client's conduct in the matter is dishonourable"
by the lawyer's standards. Commentary l(b) elaborates that such conduct includes
"persistently rude, offensive or abusive behaviour towards others involved in a matter."
A lawyer may also withdraw if"acceptance of the client's position would reflect poorly
on the lawyer," according to the same Commentary.

Preoccupation with status is evident in chapter 15, which governs activities that a
lawyer may engage in other than the practice of law. The Statement of Principle states
that such activities cannot, of course, "bring discredit to the profession" (although there
are few occupations with lower reputations among members of the public). There is a
requirement that "lawyers should aspire to the highest standard of behaviour" at all
times." Commentary 2 elaborates that "[m]embership in a professional body is often
considered evidence of good character in itself."

One of the definitions of "gentleman" is "a man of superior position in society, or

having the habits of life indicative of this; often, one whose means enable him to live ·
in easy circumstances without engaging in trade, a man of money and leisure." 133 In

131
See also ibid., c. 15, Commentary 3.
132 See e.g. F. Kay, Transitions in the Ontario Legal Profession: A Survey of lawyers Called to the
Bar Between 1975 and 1990 (foronto: Law Society of Upper Canada, 1991) at 73-74, 81-82.
(Comments made by surveyed practitioners include: "Respect for the profession continues to
decline"; "Being a lawyer increasingly becomes less prestigious"; "Lawyers are not held in high
esteem by the public at large"; "It is sad that the prestige once associated with the profession has
(and is continuing) to decline"; "Too little prestige"; "I am also disturbed by the low esteem in
which the public holds the profession in general.")
133
OED, supra note 26.
852 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

his 1919 Presidential Address to the CBA, Sir James Aikins 134 most eloquently
explained:

The administration of justice has always touched the nadir of its decline when the profession has been
lowest in morals and least educated. In such times there is seen a tendency on the part of practitioners
to regard the work of the Bar as a trade and not a profession, a thing to be bartered and not a national
service to be sought after; then also is found the pettifogger, the ambulance chaser, the fabricator of
evidence and the trickster, and the man who is alien to the professional spirit and its traditions,
destitute of gentlemanly instincts, disrespectful to his seniors, and a slanderer of Judges. m

Concerns that the legal profession suffers if seen as, or conducted as, a "trade" have
been common since codes of conduct were introduced, and probably date back even
further.136 One of the core notions of professional ethics - the ideology of
professionalism - is the idea that a legal career should not be pursued as a
business.' 37 The first two decades of this century, when the first codes of conduct
were written, coincided with the rise of an affluent industrial class which was seen as
challenging the status of the professional class. 138 Efforts to maintain the status of the
legal profession and its traditional ethical duties are evident in the "law is a profession,
not a business" metaphors of the codes.

In the ABA 1908 Canons, Canon 12 warns that "it should never be forgotten that the
profession is ... not a mere money getting trade." Canon 3(10) in the CBA 1920 Canons
words the same sentiment almost identically: "He should always bear in mind that the
profession is ... not a mere money getting trade." Decades later, the 1983 ABA Model
Rules echoed this sentiment in a forthright assertion: "The practice of law is a
profession, not merely a business. Clients are not commodities that can be purchased
and sold at wi//." 139

134
Sir James Aikins, President of the CBA from 1915 until his death in 1929, bencher of the Law
Society of Upper Canada for 50 years, and Lieutenant-Governor of Manitoba from 1916, was a
"self-made millionaire," with the help of his father's influence. See "Becoming 'Ethical,'" supra
note 8 at 240 43n.
13S
J. Aikins, K.C., "The Legal Profession in Relation to Ethics, Education and Emolument" (1919)
55 Can. L.J. 335, quoted in ibid at 242.
136
MacKenzie, supra note 71 at 1-7. See also text accompanying supra notes 112 and 113.
137
"Becoming 'Ethical,"' supra note 8 at 227-28. In an earlier article, Professor Pue notes that a major
paradox in the historical development of common law capitalist states has been the simultaneous
development of free market economies and "professional" monopolies: W.W. Pue, "'Trajectories
of Professionalism?': Legal Professionalism After Abel" (1990) 19 Man. L.J. 384 at 386 (also
published in A. Esau, ed., Manitoba law Annual, 1989-1990 (Winnipeg: Legal Research Institute,
1991)) [hereinafter "Trajectories"]. I would note another contradiction between the "law is a
profession, not a business" ideology and the definition of "elite" law firms in this country. Law
firms with the highest "status" are those who serve commercial interests - those that have direct
associations (one or more partners serving as directors or senior executives) with one or more of
the largest Canadian corporations and those whose most time-consuming work includes a large
percentage of corporate and commercial law for major businesses and financial institutions. See
B.D. Adam & K.A. Lahey, "Professional Opportunities: A Survey of the Ontario Legal Profession"
(1981) 59 Can. Bar Rev. 674 at 676.
138
Auerbach, supra note 6 at 5.
139
Commentary I, r. 1.17.
 METAPHORS OF LAWYERS' PROFESSIONALISM 853

The "law is a profession, not a business" explanation is also expressed in statements

using the metaphor of "prostitution." In 1915, Sir James Aikins warned that "[p]ersons
who have ... sought to commercialize it [i.e. the practice of law], to prostitute it to such
an end in itself [i.e. making money] have lowered the professional tone and so lost the
respect and esteem of their fellow-practitioners and of the people." 140

The rejection of market principles in the concept of professionalism has continued

to this day. 141 It is most evident in the regulation of lawyers' advertising. Canon 5(3)
in the CBA 1920 Canons warned that "self-laudations defy the traditions and lower the
tone of the lawyer's high calling." In the CBA 1987 Code, subsequent to court
challenges of the profession's right to ban advertising, only advertising that is "so
undignified, in bad taste or otherwise offensive as to be prejudicial to the interests of
the public or the legal profession" is unethical. 142

The "law is a profession, not a business" aspect of the gentleman concept of a

lawyer, situated within a hierarchy similar to that of the established churches and the
military, is also more noticeable in the absence of one metaphoric network that could
have been expected to appear in institutional texts written after the turn of the century.
Following the industrial revolution, the metaphor of the machine (especially the
clockwork metaphor at first, and the computer metaphor later) became the new model
for the explanation of institutions. 143 The only example from the machinery
metaphoric network in the ABA 1908 Canons is in the preamble which notes that "it
is peculiarly essential that the system for establishing and dispensing Justice be
developed to a high point of efficiency." There is nothing similar in the CBA 1920
Canons.

The ABA Model Code, promulgated in 1969, refers to the "machinery of law" in
Note 2 to Canon 2, and to the "machinery" available to change advertising regulations
in Ethical Consideration 2-10. Competent professional judgment is styled a "product"
in Ethical Consideration 3-2. Otherwise, metaphors consequential to the industrial
revolution are absent. Even by 1983, when the ABA Model Rules were promulgated,
only a few more of these modern metaphors appeared. The preamble includes
references to "performs various functions," "cast in the terms," "rules not designed to
be a basis for civil liability," and "work product privilege." Other examples, from the
Commentaries to various rules, include "joint undertaking," 144 "[b]y the same

140
Aikins, supra note 135 at 245. See text accompanying supra note I 15.
1'1
"Becoming 'Ethical,"' supra note 8 at 229.
142
CBA 1987 Code, supra note 4, c. 14, Commentary 3.
143 H. Haste, The Sexual Metaphor: Men, Women, and the Thinking that Makes the Difference
(Cambridge, Mass.: Harvard University Press, 1994) at 47. Metaphors from this network support
the idea that Professor W. Wesley Pue has advanced in stating that the legal profession is
consistent with "a vision of society in which rationally constructed expert knowledge is brought
to bear on the problems ... facing humanity." ("Trajectories," supra note 137 at 407) [emphasis in
original].
144
ABA Model Rules, supra note 3, r. 1.2, Comment. para. I.
854 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

token," 145 "adjust a relationship," 146 "measures employed," 147 and "information
transmitted." 148

The CBA 1974 Code and the CBA 1987 Code contain relatively few examples of
the machinery metaphoric network as well. Commentary I in chapter 12 of the CBA
1974 Code insists that "judicial institutions will not function effectively unless they
command the respect of the public." 149 Commentary 2 in the same chapter notes that
the lawyer's background enables him "to observe the workings and discover the
strengths and weaknesses" of the legal system. The rule in chapter 13 states that
"[l]awyers should make legal services available to the public in an efficient and
convenient manner." 15° Commentary 7 of the same chapter refers to actions "designed
primarily to attract legal business" (which are prohibited). Commentary 5 in chapter 14
of the CBA 1974 Code, 151 encouraging lawyers' participation in law reform,
continuing legal education, and the like, maintains that "the individual lawyer should
do his part in assisting the profession to function properly and effectively."

It is not until the 1995 Alberta Code that metaphors of machinery predominate,
surpassing the metaphors of Christianity and gentility in number. Even there, however,
they occur less frequently than do the metaphors of the military. The preface refers to
an "enforcement mechanism." The preface concludes with a note stating that it is
improper to use any provision of that Code "as an instrument of harassment" (although
the next words in the sentence are "or as a procedural weapon"). In chapter l, entitled
"Relationship of the Lawyer to Society and the Justice System," we read about the
"justice system in operation," "perceived weaknesses in the system," "reform to the
justice system," "maintaining the integrity of the justice system and ensuring that it
functions properly," and of certain rules "operat[ing] independently." 152 Chapter 2, in
addition to references to "operation" and "functioning," adds to the network in
describing lawyers' duty to make legal services available to all, regardless of ability to
pay, with such phrases as "implement support systems," "facilitate optimum
performance," "facilitate the monitoring of competence on an ongoing basis," and
"monitored on an ongoing basis." 153 Commentary G.2 in chapter 4 notes that good
relations between la)V)'ers "contribute to the effective and expeditious dispatch of
clients' business." Commentary 2.2 in chapter 6 states that multiple representation is
no justification for "cutting corners." Chapter 10, Commentary 8.1 lists "[c]ertain
factors [that] will prevent the adversary system from functioning at its optimum level."

10
Ibid., r. 1.2, Comment, para. 3.
146
Ibid., r. 2.2, Comment, para. 3.
147
Ibid., r. 5.3, Comment, para. I.
148
Ibid., r. 7.3, Comment, para. 7.
149
See also CBA 1987 Code, supra note 4, c. 13, Commentary I.
uo See also ibid., c. 14. Commentary JO to the same rule echoes these words in suggesting that
lawyers who breach the restrictions on advertising should perhaps be dealt with leniently if they
"acted in good faith in making legal services available more efficiently, economically, and
conveniently than they would otherwise have been."
m See also CBA 1987 Code, ibid., c. I 5, Commentary 4.
IS2
See 1995 Alberta Code, supra note 5, c. I, Commentaries 2, 3, and 7.
1Sl
See ibid, c. 2, Commentaries G.I, 4.1 and 4.2.
 METAPHORS OF LA WYERS' PROFESSIONALISM 855

Lawyers' actions are variously described throughout this Code in such terms as
weighed, designed, implement, formulate, convey, calculated and process. Matters are
broken down into phases or steps, and corporations into constituent parts.

IV. CONCLUSION

Metaphors, including the Christian, military, and gentility metaphors in the

statements from the codes of conduct and those who produced the codes, are systemic.
They are used as models for how things work, for how things should be valued, and
for how they relate to (can be analogized to) other things. 154 One indication of the
non-arbitrary nature of the three metaphoric networks examined in this article is their
consistency with one of the most common orientation metaphors in the English
language. That orientation metaphoric network expresses relationships in bodily terms,
such as "up" and "down." 155 Up metaphors are positive and down metaphors are
negative. For example, "happy" is expressed in terms of being up, as are "more,"
"good," and "virtue." More closely connected to the codes of conduct, "having control"
is up, as in such phrases as "being on top of," "superior," and "ranks above." "High
status" is also a relevant up metaphor. On the other hand, "sad" is expressed in terms
of being down, as is "less," "bad," and "depravity." "Being subject to control," as in the
phrase "fall from power," is also down. So is "low status."

There are numerous "up" metaphors in the quotations from the codes of .conduct and
those who produced them. Some of the most original and clearest illustrations of this
orientation metaphor occurred when codes of conduct were first being written. Judge
George Sharswood evoked the "tower of strength" that resulted from the good opinion
of fellow Iawyers. 156 David J. Brewer, a member of the committee that drafted the
ABA 1908 Canons, referred us to the lawyer who "looks above" and "sees the lofty
summits." 157 During the Canadian Bar Association's debate on the adoption of the
CBA 1920 Canons, Colonel W.N. Ponton, K.C. evoked "tall men, sun-crowned, who
stand above the fog." 158 Even in the codes of conduct promulgated in the past twenty-
five years, however, we find phrases such as "uphold the integrity and honour of his
profession," "highest standards," "uphold the dignity of the profession," "enhance the
respect," and "dominant position."

There are also some "down" metaphors. In connection with the idea that law is a
profession and not a business, and especially those rules concerned with outside
interests, and advertising, the phrases "not detract from the status of lawyer," "nadir of
its decline," and "lower the tone" were noted.

Each metaphoric network equates up with "good" and down with "bad." They are
coherent in terms of the values they express. Their underlying rationale comes from the

IS4
Haste, supra note 143 at 38.
ISS
Lakoff & Johnson, supra note 18 at 14-17.
IS6
See text accompanying supra note 39.
IS7
See text accompanying supra note 78.
IS8
See text accompanying supra note 116.
856 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

common attitudes taken towards them all. To be a lawyer, a gentleman, a minister, and
an officer was to be above "what is commonly called the public" 159 and dedicated to
a "high calling." 160

What does each of these metaphoric networks currently contribute to the definition
of lawyers' professionalism? The words we used and still use to describe the conduct
required of lawyers contribute to the hierarchy within the profession on the basis of
class, gender and ethnicity. They may also contribute to the "low esteem" in which the
profession as a whole is held.

The metaphoric networks of gentility, religion, and the military are all hierarchical.
They evoke a stratified social ordering. Power is most easily wielded in a hierarchical
society, where there are explicitly followed distancing conventions and linguistic pomp
and solemnity. 161 Non-linguistic signifying practices within the profession also
illustrate this hierarchy through conventions such as bowing when entering or leaving
a courtroom where a judge is presiding and the architectural design of a courtroom with
its raised bench and the bar as boundary.

The metaphoric networks also evoke a strictly male world. Military officers,
ministers and gentlemen were all men when these codes were promulgated. And yet,
by the time the first national codes of conduct were produced, a few women were
members of the legal profession, albeit they were admitted over the protests of the
governing bodies of the profession and the bench. In Canada, the first woman, Clara
Brett Martin, was admitted to practice as a solicitor in Ontario in 1893.162

The metaphoric networks in the codes of conduct also invoke an ethnocentric British-
Canadian world. The first black lawyer, Delos Rogest Davis, was admitted to the bar
in Ontario in 1886, and black lawyers were not unknown in Nova Scotia by the turn
of the century. 163 However, the social construction of a "gentleman" was restricted not
just to those who were white but to those who were from the "Motherland." 164

As noted in the explanation of metaphors that began the body of this article, the
essence of a metaphor can be said to be the understanding and experiencing of one kind
of thing in terms of another. 165 The point is not that the metaphoric networks that

1'9
See text accompanying supra note 39.
160
See text accompanying supra note 142.
161
Lakoff, supra note 22 at 266. The use of titles such as "My Lord" or "My Lady" is one example.
162
C. Harvey, "Women in Law in Canada" (1970) 4 Man. L.J. 9 at 17. The first Canadian woman
lawyer was refused admittance for three years by the Law Society of Upper Canada because that
institution interpreted the word "person," in the legislation allowing "persons" to be admitted, so
as to exclude women. It took a statutory amendment to allow her to practice law. See C.
Backhouse, "'To Open the Way for Others of My Sex'; Clara Brett Martin's Career as Canada's
First Woman Lawyer" (1985) 1 C.J.W.L. 1 at 31.
163
P. Girard, "The Roots of a Professional Renaissance: Lawyers in Nova Scotia 1850-1910" (1991)
20 Man. L.J. 148 at 177. Delos Rogest Davis also had to be admitted by an act of the legislature,
because he could not find a lawyer with whom to article (ibid., 66n).
16-l
See text accompanying supra note 126.
16S
See text accompanying supra note 18.
 METAPHORS OF LA WYERS' PROFESSIONALISM 857

analogized lawyers to gentlemen, ministers, and military officers would not have
explained who the ideal lawyer was to those excluded from the profession by their
ethnicity, class or gender. To say that a lawyer was a Christian gentleman, with duties
similar to those of an officer, is comprehensible to those situated otherwise. The point
is that everyone, regardless of class, ethnicity, or gender, would read the texts of the
codes of conduct and see the image of the lawyer produced thereby according to their
own inclusion within or exclusion from that ideal. Analogizing lawyers to ministers,
gentlemen, and officers is empowering for those who could or can assume those roles;
it is disempowering for the "others." 166 The metaphoric networks in the codes of
conduct - still in our codes of conduct - tell us not only of the social situation of
those who produced them, but also who the readers of those texts are "supposed" to be.

There are more ways to exclude and disempower than by simply refusing admission;
the method in use prior to the tum of the century. There are more ways to exclude and
disempower than the current segregation and marginalization within the profession. 167
The predominant metaphors of the role of lawyers continue to exclude and disempower
those whom these metaphors do not describe. The three metaphoric networks examined
in this article rely for their meaning and practical effect on a pre-existing organization
of social groups according to various factors, notably class, gender and ethnicity. 168
The images reflect pre-existing power relations. Examining the metaphors unmasks
those power relations.

The three metaphoric networks may also contribute to the public's lack of trust in
and respect for the legal profession. The profession's preoccupation with its
"image" 169 and the negative public perception of lawyers may be related to these
metaphoric networks of hierarchy and deference. The language that sets the profession
apart from "mere money-getting trades" sets the profession above even its most
favoured clients. 170 The elitism inherent in the conceptualization of the legal
profession in terms of Christian, gentility and military metaphors - "dead" metaphors
within the profession - may be more easily perceived from positions outside the
profession. The incompatibility of the non-figurative meaning of the metaphoric
statements with their context may be most apparent to those who do not share the
"popular wisdom."

166
Thanks to W. Wesley Pue for his emphasis of this point.
167
For example, in a variety of civil and common law countries, including Canada, women are
clustered in particular occupations and particular tasks that are the least valued forms of legal
practice in the particular culture. See C. Menkel-Meadow, "Excluded Voices: New Voices in the
Legal Profession Making New Voices in the Law" (1987) 42 U. Miami L. Rev. 29 at 40. Women
of colour, Aboriginal women, women with disabilities and lesbians are not well represented in
large, "elite" law finns, even in proportion to their (small) numbers in the legal profession. See
Touchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar
Association, 1993) at 85.
168 The same perhaps may be said for all metaphoric networks. See e.g. supra note 2 at 42.
169 See e.g. the July 1993 Decima Research poll conducted for The Lawyers Weekly in which
subscribers asked to name the major issues facing the legal profession ranked "professional image"
second, after the cost of legal services (J. Miller, "Off the Record" The Lawyers Weekly (11 March
1994) 3).
170
See text accompanying supra note 137.
858 ALBERTA LAW REVIEW [VOL. XXXIII, NO. 4 1995]

Metaphors provide the framework within which we are able to think, serving as
categories for grouping things and setting the agenda for the way that we conceptualize
issues and the solutions we will find. 171 Ethical judgments within the North American
common law legal professions are still governed by concepts - framed in words -
from the tum of the century and earlier. How would the profession describe the "duty"
of confidentiality between lawyers and their clients if it was not conceptualized in terms
of the confessional or in terms of property to be guarded? What effect would a new
analogy have on the duty of "loyalty" or the formulation of conflict of interest rules?
What would lawyers' professionalism be like if framed in terms of cooking instead of
war, of forests instead of Christianity, of equality instead of hierarchy?

The metaphoric networks that have continued in the codes of conduct from the tum
of one century almost to the tum of another evidence the continued existence of
obsolete institutional habits and forms. Lawyers' professionalism has not changed
rapidly enough to keep up with changes both within and without the profession. It
might seem amusing, rather than intellectually embarrassing or violent, 172 if one takes
a sufficiently distant point of view, that a legal profession looking forward to the
twenty-first century is still constructed and governed, to a large degree, by the images
of the nineteenth century. But it is not amusing for those disempowered by these
nineteenth century conceptions, however. Ethnocentricity, elitism, sexism and
conservatism are part of the metaphoric networks of the Christian gentleman with his
military duties. It is long past time to change the words and the ideas that have
persisted when the reality behind them has changed.

171
Haste, supra note 143 at 43.
172
Schlag, supra note 16 at 1248.