581

"THE CLIENT COMES FIRST, UNLESS

HE'S CROOKED": LEGAL AND
PROFESSIONAL ETHICS IN RAYMOND
CHANDLER'S THE BIG SLEEP
JOSEPH ALLEGREIrif

INTRODUCTION
The study of literature can enrich our understanding of the world
of work, but few literary genres focus explicitly on work and work-
related ethics. Detective fiction is an obvious exception. As Ralph
Willett points out, "The hard-boiled detective novel is one of the few
fictional genres where the depiction of work is a major concern, some-
times pushing the original crime to the periphery. The central focus
becomes the detective at his job, reflecting, phoning, making notes,
following leads and suspects, interviewing witnesses-and engaging
in violent acts."' In detective fiction we observe the police officer or
private investigator going about his or her daily work with all its at-
tendant ethical issues and problems.
The most famous of the hard-boiled detectives is probably Ray-
mond Chandler's Philip Marlowe, the hero of such mystery classics as
The Big Sleep, Farewell,My Lovely, and The Long Goodbye. A number
of commentators have found lessons for business and professional eth-
ics in the stories featuring Marlowe, particularly the first Marlowe
novel, The Big Sleep. 2 In a short article on the Enron scandal, for
example, Amity Shlaes argued that accountants, consultants, and
board members could have avoided that ethical quagmire if they had
followed the professional ethics of Marlowe in The Big Sleep.3 As an-
other example, Harvard Business School professor Joseph Badaracco
recommended The Big Sleep for future business leaders. He called the
novel, "A classic American detective story, first published in 1939,

t Professor of Accounting and Business Law and Professor of Religious Studies,

Siena College, Loudonville, New York. Formerly the A.A. and Ethel Yossem Professor of
Legal Ethics, Creighton University School of Law, Omaha, Nebraska. J.D., Harvard
Law School, 1977; M.Div., Yale Divinity School, 1989.
1. Ralph Willett, Hard-BoiledDetective Fiction, BRITISH ASSOCIATION FOR AMERI-
CAN STUDIES, Pamphlet Number 23 (1992), www.baas.ac.uk/index.php?optiion=com
content&view=article&id=230%03Aralph-willett-hard-boiled-detective-fiction&catid=
187Hemid=11 (last visited June 3, 2010).
2. RAYMOwn CHANDLER, THE BIG SLEEP, in STORIES AND EARLY NoVELS 587-764
(1995).
3. Amity Shlaes, An Offer Enron's Advisers Could Have Refused, www.ami-
tyshlaes.com/articcles/2002/2002-02-04.php (last visited June 3, 2010).
582 CREIGHTON LAW REVIEW [Vol. 44

which can be read as a story about the pursuit of professional excel-

lence and the moral dilemmas arising from dedicated service to a cli-
ent."4 Indeed, The Big Sleep deals with some of the central concerns of
the professional-client relationship: What does it mean to be a profes-
sional?; What are my obligations to my client?; How do I balance these
obligations with my duties to myself and to the state?
This Article proposes to examine The Big Sleep in detail for its
lessons for professional ethics in general and legal ethics in particular.
This Article is divided into two parts. First, this Article examines
Marlowe's dealings with his client and his understanding of the pro-
fessional-client relationship. Second, this Article explores the rele-
vance of Marlowe's code of conduct for legal ethics and the lawyer-
client relationship. This Article's thesis is that a careful reading of
The Big Sleep can prove a valuable resource for lawyers struggling
with ethical issues at work.

I. MARLOWE AND THE CLIENT

The Big Sleep opened with Philip Marlowe's arrival at the home of
a potential client, the millionaire General Sternwood. Above the door
to the Sternwood mansion was a stained-glass window of a knight res-
cuing a damsel tied to a tree. Marlowe mused that the knight
was fiddling with the knots on the ropes that tied the lady to
the tree and not getting anywhere. I stood there and thought
that if I lived in the house, I would sooner or later have to
climb up there and help him. He didn't seem to be really
trying.5
Marlowe's comment was more revealing than he intended-the reader
learned that Marlowe saw himself as a modern knight rescuing dam-
sels in distress. In a later novel, The High Window, a character calls
Marlowe "[tihe shop-soiled Galahad."6 As we shall see, Marlowe's eth-
ics were curiously old fashioned for such a hard-hitting, tough-talking
wise guy. We were put on notice from the beginning of The Big Sleep
that traditional values such as client loyalty and honesty would be
important to Marlowe.
Yet there was more to Marlowe's ethics than client loyalty. Mar-
lowe told General Sternwood that he once worked for the district at-

4. JOSEPH L. BADARACco, JR., QUESTIONS OF CHARACTER: ILLUMINATING THE

HEART OF LEADERSHIP THROUGH LITERATURE 208 (2006).
5. CHANDLER, supra note 2, at 589.
6. RAYMOND CHANDLER, THE HIGH WINDOW, in STORIES AND EARLY NOvELS 985,
1136 (1943). Chandler's original name for Marlowe was Mallory, echoing the name of
the author of the Medieval knightly romance, Le Morte d'Arthur. Julian Symons, An
Esthete Discovers the Pulps, THE WORLD OF RAYMOND CHANDLER 20 (Miriam Gross ed.,
1978).
20111 LEGAL AND PROFESSIONAL ETHICS 583

torney's office as an investigator. But he added, "I was fired. For

insubordination. I test very high on insubordination, General."7 Mar-
lowe was not fired for incompetence or immorality, but for his inde-
pendence. His courtly ethics did not mean that he blindly followed
orders. Instead, Marlowe possessed a sense of personal autonomy
that balanced his fealty to clients. In a later book, for example, we
learned that he would not do divorce work-no matter how lucrative it
might be.8 Marlowe and the aged, dying, General Sternwood quickly
forged a bond of friendship-General Sternwood, too, valued indepen-
dence-and Marlowe accepted the job of stopping a blackmailer who
was demanding that the General pay the gambling debts of his young-
est daughter, Carmen. During their meeting, General Sternwood also
talked about Rusty Regan, an ex-bootlegger married to his other
daughter, Vivian. Regan had disappeared a month earlier and it was
clear that the General missed him deeply. Marlowe suspected that
the old man was as worried about Regan's disappearance and possible
involvement in the blackmailing scheme as he was about Carmen.
Once Marlowe accepted a client, he would not allow any outsider
to interfere with his duty of loyalty. Marlowe's investigations led him
to the gambling boss, Eddie Mars. Mars was somehow involved in the
case-which at this point had expanded to include not only blackmail-
ing, but several murders-and was appreciative that Marlowe had not
told the police about Mars's possible involvement in one of the
murders. He offered to pay Marlowe for his silence, but Marlowe re-
fused. He told Mars, "One customer at a time is a good rule."9 Mar-
lowe suspected that Mars's real reason for offering the money was to
co-opt him. His refusal to work for Mars was part of a larger concern
for avoiding conflicts of interests. He would not fall into the trap of
serving two masters; one boss was enough.
Marlowe's sensitivity to conflicts of interest could also be seen in
the way he related to General Sternwood's two daughters. Carmen
was a nymphomaniac and a drug user. Vivian was a sexy vamp and a
gambler with connections to Eddie Mars. Marlowe spent the first half
of the novel cleaning up the messes Carmen had created and stopping
the blackmailing scheme aimed at her. One night, coming home to his
apartment, he found Carmen naked in his bed. Marlowe rebuffed her
sexual overtures because sleeping with a client's daughter would have
violated his professional ethics:

7. CHANDLER, supra note 2, at 594.

8. RAYMOND CHANDLER, THE LADY IN THE LAKE, in LATER NOVELS AND OTHER
WRITINGS 1, 8 (1995).
9. CHANDLER, supra note 2, at 688.
584 CREIGHTON LAW REVIEW [Vol. 44

"It isn't on account of the neighbors," I told her. "They don't

really care a lot. There's a lot of stray broads in any apart-
ment house and one more won't make the building rock. It's a
question of professional pride. You know-professional pride.
I'm working for your father. He's a sick man, very frail, very
helpless. He sort of trusts me not to pull any stunts. Won't
you please get dressed, Carmen?"' 0
Carmen tested Marlowe's code of ethics, but he would not surrender to
temptation because to do so would have betrayed his obligation to
General Sternwood. His professionalpride-hisethics-was more im-
portant than fleeting sexual pleasure.
Marlowe's relations with Vivian were more complex but also
demonstrated his single-minded commitment to his client. As he left
the General after their first meeting, Vivian invited him to her room.
She was lying on a chaise lounge, with her slippers off and her legs
exposed beyond the knee, sipping a drink. She tried to tease out of
Marlowe the real reason why he was hired. She dropped hints that
her father must have hired Marlowe to find her husband, but Marlowe
refused to rise to the bait. When she asked him point-blank if the
General wanted him to find Rusty Regan, he only answered, "[y]es and
no."" Later, when Vivian made a sarcastic crack about Marlowe's
cheaply-furnished office, he replied:
"You can't make much money at this trade, if you're hon-
est. If you have a front, you're making money-or expect to."
"Oh-are you honest?" she asked ....
"Painfully."12
Marlowe's painful honesty did not extend to revealing client
secrets. He continually rebuffed Vivian's attempts to discover
whether General Sternwood hired him to find Rusty Regan. Marlowe
was equally close-lipped with the other people he encountered. Even-
tually, the police brought in Marlowe when the blackmailing case he
was working on expanded to include several murders. He was willing
to tell the police most of what he knew, but kept a few "personal mat-
ters" private-particularly Carmen's possible involvement in one of
the murders.' 3 The police criticized him for not giving them informa-
tion that might have prevented the murder of Carmen's blackmailer,
Joe Brody. Marlowe responded, "I was in a pretty tough spot. I guess
I did wrong, but I wanted to protect my client and I hadn't any reason
to think the [killer] would go gunning for Brody."14 Marlowe insisted

10. Id. at 707.

11. Id. at 600.
12. Id. at 630.
13. Id. at 672.
14. Id. at 670.
2011]1 LEGAL AND PROFESSIONAL ETHICS 585

on remaining silent about some matters, "[blecause my client is enti-

tled to that protection, short of anything but a Grand Jury. I have a
license to operate as a private detective. I suppose that word 'private'
has some meaning." 15 His refusal to reveal all that he knew perplexed
the district attorney:
"What are you getting for it all?"
"Twenty-five dollars a day and expenses."
"That would make fifty dollars and a little gasoline so
far."
"About that."
He put his head on one side and rubbed the back of his
little finger along the lower edge of his chin.
"And for that amount of money you're willing to get your-
self in Dutch with half the law enforcement of this county?"
"I don't like it," I said. "But what the hell am I to do? I'm
on a case. I'm selling what I have to sell to make a living.
What little guts and intelligence the Lord gave me and a will-
ingness to get pushed around in order to protect a client. It's
against my principles to tell as much as I've told tonight,
without consulting the General."' 6
Throughout the seven novels featuring Marlowe, he would be
beaten up, shot at, drugged, abused, and imprisoned for his actions on
behalf of clients. In every novel there was this "willingness to get
pushed around in order to protect a client."17 That is what the client
was paying him for, that is what the client deserved.
Perhaps the clearest example of Marlowe's commitment to Gen-
eral Sternwood came at the end of the book. At this point the original
reason for his hiring had long been resolved-he had successfully
stopped the blackmailing of Carmen. But his efforts to find out what
happened to Rusty Regan had led him to other, darker, secrets. Regan
did not run away, nor was he involved in the blackmailing plot. In-
stead, Carmen killed him when he rejected her sexual overtures.
When Marlowe told Vivian what he had learned, she immediately as-
sumed that he expected to be paid for his silence. She offered him
fifteen thousand dollars, but he refused to take the money. He de-
tailed the risks he had encountered in the case and said,
I do all this for twenty-five bucks a day-and maybe just a
little to protect what little pride a broken and sick old man
has left in his blood, in the thought that his blood is not
poison, and that although his two little girls are a trifle wild,

15. Id. at 672-73.

16. Id. at 674.
17. Id.
586 CREIGHTON LAW REVIEW [Vol. 44

as many nice girls are these days, they are not perverts or
killers.' 8
Marlowe surprised Vivian by telling her that he would not give Car-
men's name to the police if she would take her deranged sister to an
asylum where Carmen could be treated. Why did he do this? Not be-
cause he would personally benefit, or because he was hired to save
Carmen from a murder prosecution, but in order to protect the dying
General Sternwood. His refusal to turn in Carmen may have violated
a moral duty to the state-shouldn't he tell the police who murdered
Regan?-but was consistent with his primary allegiance to his client.
The famous ending of the novel expresses just how far Marlowe would
go for a client:
Me, I was part of the nastiness now. Far more a part of it
than Rusty Regan was. But the old man didn't have to be.
He could lie quiet in his canopied bed, with his bloodless
hands folded on the sheet, waiting. His heart was a brief, un-
certain murmur. His thoughts were as gray as ashes. And in
a little while he too, like Rusty Regan, would be sleeping the
big sleep.' 9
Marlowe became part of the nastiness out of loyalty to General
Sternwood. But recall that General Sternwood had not explicitly
hired Marlowe to find Regan, and had certainly not hired Marlowe to
cover-up Regan's murder. There was thus a tension between Mar-
lowe's specific assignment (to stop the blackmailing of Carmen) and
what he took to be the real reason for his hiring (to find out what
happened to Regan). This tension was dramatized in a pivotal scene
near the end of the novel. General Sternwood was angry at Marlowe
for going beyond the explicit terms of his employment:
"I didn't ask you to look for my son-in-law, Mr. Marlowe."
"You wanted me to, though."
"I didn't ask you to. You assume a great deal. I usually
ask for what I want."
I didn't say anything.
"You have been paid," he went on coldly. "The money is
of no consequence one way or the other. I merely feel that
you have, no doubt unintentionally, betrayed a trust."20
Marlowe's reaction was particularly instructive. He immediately
offered to return his fee. "It may mean nothing to you. It might mean
something to me." What does it mean to Marlowe? "It means that I
have refused payment for an unsatisfactory job. That's all."2 1 Mar-

18. Id. at 761-62.

19. Id. at 764.
20. Id. at 748.
21. Id.
2011] LEGAL AND PROFESSIONAL ETHICS 587

lowe's response reflected the double-sided nature of his code of ethics.

On the one hand, he believed that the client is always right, and if the
client is unhappy about his performance, his professional pride and
ethics will not let him accept payment. On the other hand, he did not
hesitate to act in ways that he believed were in the client's best inter-
ests even when he had not been directly instructed to do so. Although
Vivian and others assumed that he was looking for Regan, and even
the General seemed as concerned about his missing son-in-law as he
was about Carmen's predicament, it was nevertheless true that Gen-
eral Sternwood did not directly authorize Marlowe to search for Re-
gan. Marlowe had exceeded his instructions and taken upon himself
to do what he thought his client wanted him to do. What made him
think so? He told the General, "I was convinced you put those [the
blackmail] notes up to me chiefly as a test, and that you were a little
afraid Regan might somehow be involved in an attempt to blackmail
you." Or, as he ruefully admitted, "I guess I just don't like to admit
that I played a hunch."2 2 Marlowe's hunch proved right; General
Sternwood eventually relented and offered him a thousand dollars to
find Regan.23
Here we saw Marlowe walking a fine line between doing what his
client told him to do and doing what he thought his client wanted him
to do. As he moved beyond his explicit instructions, and did what he
thought his client wanted, he ran the risk of seizing control of the case
and acting paternalistically towards the client. He justified his ac-
tions in terms of his role as an independent agent and professional:
When you hire a boy in my line of work it isn't like hiring a
window-washer and showing him eight windows and saying:
"Wash those and you're through." You don't know what I
have to go through or over or under to do your job for you. I
do it my way. I do my best to protect you and I may break a
few rules, but I break them in your favor. The client comes
first, unless he's crooked. Even then all I do is hand the job
back to him and keep my mouth shut. 24
Marlowe's statement is crucial for understanding his vision of the
professional-client relationship. He was hired to do a job, but it was
not a job that can be fully known at the outset. It was not like wash-
ing windows. Things happened, the case moved in new and unantici-
pated directions, and he must have had the leeway to use his
professional judgment as he saw fit. Nobody, not even the client,
knew what he had to do. He demanded the freedom to act as he
chooses-but limited always by his understanding of the client's best

22. Id. at 749.

23. Id. at 751.
24. Id. at 750.
588 CREIGHTON LAW REVIEW [Vol. 44

interests. He may have broken some rules, but only on the client's
behalf. And Marlowe was prepared to back up his actions by refusing
payment for any job that the client found unsatisfactory. His solution
was not perfect-there was still the risk that he would act paternalis-
tically on a mistaken view of the client's best interests. But it did
serve to balance professional autonomy and client loyalty in a way
that preserved Marlowe's independence of action while at the same
time assured that the client retained overall control of the case. This
was the lynchpin of his code of professional ethics.

II. MARLOWE, LEGAL ETHICS, AND THE LAWYER-CLIENT

RELATIONSHIP
What can lawyers learn from Marlowe and his understanding of
the professional-client relationship? To begin to answer this question,
consider two models that Marlowe rejected. Marlowe repudiated what
Richard Wasserstrom called the idea of the "amoral technician." 25
The amoral technician is the lawyer (or other professional) who sees
herself solely as the instrument of her client. Her only loyalty is to her
client-not to the law, not to her own ethics, not to her own con-
science. She is little more than a "hired gun" who does her client's
bidding without question. Many lawyers, it has been argued, fall into
this category-for example, litigation lawyers who approach their job
as a kind of winner-take-all gunfight. 2 6 At the same time, Marlowe
rejected the opposite view of the lawyer (or professional) as a domi-
neering boss who is totally in control of the case and need answer to no
one, not even the client. Critics claim that many lawyers fall into this
category by manipulating clients, telling them lies and half-truths,
and violating client autonomy. 2 7 In The Big Sleep we saw Marlowe
struggling to maintain a position between these extremes, as any ethi-
cal lawyer must do. His loyalty was to his client, certainly, but not
only to his client. As he told the General, hiring him "isn't like hiring
a window-washer." 28 He must have the freedom to approach the case
as he sees fit, to do what he thinks is right. 29 His conscience was his

25. Richard Wasserstrom, Lawyers as Professionals:Some Moral Issues, 5 HUMAN

RIGHTS 1, 5-6 (1975).
26. Joseph Allegretti, Have Briefcase Will Travel: An Essay on the Lawyer as Hired
Gun, 24 CREIGHTON L. REV. 747 (1991).
27. Joseph Allegretti, Lawyers, Clients, and Covenant: A Religious Perspective on
Legal Practice and Legal Ethics, 66 FoRDHAM L. REV. 1101, 1111-12 (1998).
28. CHANDLER, supra note 2, at 750.
29. It is often said that the "ends" or "purposes" of the representation are for the
client and the "means" or "tactics" are for the lawyer. See, e.g., Judith L. Maute, Alloca-
tion of DecisionmakingAuthority Under the Model Rules of ProfessionalConduct, 17 U.
C. DAVIS L. REV. 1049 (1984). The Model Rules provide that a lawyer "shall abide by a
client's decisions concerning the objectives of representation and . . . shall consult with
2011] LEGAL AND PROFESSIONAL ETHICS 589

ultimate guide, but he was willing to pay the price-quite literally, by

returning the General's money-if he took upon himself more than the
client could accept.
Some scholars argue that Marlowe's willingness to keep silent
about the murder of Rusty Regan proved the futility of his code of eth-
ics.3 0 In this way of thinking, Marlowe's refusal to turn in Carmen to
the police revealed that his fundamental values of loyalty and chivalry
were obsolete. His compassion attested to his moral failure. These
critics seem to assume that Marlowe's only allegiance was to the state
and that he had betrayed this allegiance by refusing to surrender Car-
men. They forgot that as a professional, Marlowe was not an agent of
the state. He was no longer an investigator for the district attorney,
as he once was, but his own boss making his own decisions about what
jobs to take and how to carry them out. While he was licensed by the
state, he was an independent contractor, a private investigator. His
allegiance ran to his client and to himself. John Irwin put it well:
Marlowe knows that he is not simply a detective, not someone
whose job it is to solve mysteries, apprehend killers or black-
mailers, and bring them to justice. That was his task as an
investigator for the district attorney, the job from which he
was fired for insubordination. Now he is a private detective,
hired by individuals, not by the public, to investigate what
are often confidential matters and to keep the results of those
inquiries private, a paid agent who must, in deciding upon a
course of action, weigh the conflicting demands of loyalty to a
client against the moral and legal responsibilities of
citizenship.3 1
In other words, as Peter Wolfe reminded us, "Marlowe wasn't
hired to stamp out crime. He's only responsible for protecting his cli-
ent and his [client's] family . . . ."32 Marlowe's decision to keep silent
was not a betrayal of his values, but a testament to those values. He
would not abandon his client. He would do what he could to protect
the dying General Sternwood from one last fatal blow-for, as Vivian

the client as to the means by which they are to be pursued." MODEL RULES OF PROF'L
CONDUCT R. 1.2(a) (1983). Sometimes, of course, it is difficult to draw a sharp line be-
tween ends and means. In The Big Sleep, however, the problem is not really the confu-
sion of ends and means. As Marlowe sees it, the problem is that General Sternwood has
two ends in mind-stopping Carmen's blackmailing and finding out what happened to
Rusty Regan. Sternwood has explicitly hired Marlowe only to do the former, but he
hopes or intends that Marlowe will also do the latter.
30. See, e.g., Peter J. Rabinowitz, Rats Behind the Wainscoting: Politics, Conven-
tion, and Chandler'sThe Big Sleep, in THE CRITICAL RESPONSE TO RAYMOND CHANDLER
117, 130-32 (J. K. Vqan Dover, ed., 1995).
31. John T. Irwin, Being Boss: Raymond Chandler's The Big Sleep, 37 THE S. REV.
211, 233 (2001).
32. PETER WOLFE, SOMETHING MORE THAN NIGHT: THE CASE OF RAYMOND CHAN-
DLER 128 (1985).
590 CREIGHTON LAW REVIEW [Vol. 44

told Marlowe, the knowledge of what Carmen had done would kill the
General.3 3 Marlowe's refusal to turn in Carmen was not an admission
of failure, but attests to the primacy of his relationship with his client.
His decision to protect Carmen was consistent with his conscience and
his view of the professional-client relationship. 34
We might criticize Marlowe's decision on other grounds. Some
critics find him a lonely figure who retreated into his little world of
personal autonomy at the cost of ignoring his responsibilities to the
larger world.3 5 True, Marlowe did not take on the forces of corruption
that infect his world. He did not challenge the social structures of op-
pression. And he did not weigh his duty to society as more important
than his duty to his client-which is why he made the decision to keep
silent about Carmen's murder.
Even if we disagree with Marlowe's decision to keep silent, how-
ever, we can understand it and recognize it as a principled moral
choice. Marlowe inhabited a tough world in which corruption and im-
morality were rampant. Any decision he made would have painful
consequences for someone. There was little if anything Marlowe could
do to bring justice to this world. As Peter Rabinowitz observed, the
ending to The Big Sleep hardly changed society for the better.3 6 The
gamblers, blackmailers, and murderers remain. But even if Marlowe
turned in Carmen, the world would not change appreciably for the bet-
ter. And even if Marlowe could have somehow stopped Eddie Mars,
the gambler who was behind much of the crime in the novel, little
would change:
Even if Marlowe could eliminate Mars, would that make Los
Angeles a significantly better place to live? Would it eradi-
cate gambling, murder, and blackmail? Would it reduce the
influence that the racketeers and the rich have over the law?
In Chandler's world, evil was fundamentally tied to an over-
whelming sickness in the society at large; the capture and
punishment of deranged individuals had only a minimal
effect. 3 7
In such a world, protecting a dying old man may not count for much,
but it may be as much as a decent person can do.
Johanna Smith provided a useful explanation of how Marlowe
saw the professional-client relationship. She suggested that Marlowe

33. CHANDLER, supra note 2, at 762.

34. The Model Rules do not allow a lawyer to reveal knowledge of a non-client's
crime that is obtained during the representation of a client. MODEL RULES, supra note
29, R. 1.6 (1983).
35. See STEPHEN KNIGHT, FORM AND IDEOLOGY IN CRIME FICTION 163 (1980).
36. Rabinowitz, supra note 30, at 131-32.
37. Id.
2011]1 LEGAL AND PROFESSIONAL ETHICS 591

must choose between two models of relationship-an economy of ex-

change and an economy of expenditure.3 8 The former is a quid-pro-quo
business exchange in which one party provides a service and the other
pays a fee for that service. This is the typical services-for-money ex-
change. Marlowe entered into an economy of exchange when he ac-
cepted General Sternwood as a client for twenty-five dollars a day.
But Marlowe was not satisfied with such a relationship and sought to
move beyond it to an economy of expenditure-which was less like a
business relationship and more like a relationship based upon gift or
friendship. That was why he refused to succumb to the financial and
sexual blandishments of Eddie Mars, Carmen, and Vivian; it was why
he decided halfway through the book to begin looking for Rusty Regan
even though he had already solved the blackmailing case; and it was
why he was willing to fabricate a cover up to protect his dying client
from learning that his youngest daughter was a murderer.
Smith's distinction between an economy of exchange and an econ-
omy of expenditure is paralleled by the argument that lawyers choose,
either explicitly or implicitly, between two models of conduct-the
contractualmodel and the covenantal model. 39 The contractual model
is based on quid-pro-quo:
A lawyer is hired by a client to help resolve a problem, settle
a dispute, or plan a transaction. The lawyer and the client
agree upon a fee. Each party has certain specific obligations
to the other. If either party fails to meet its obligations, the
other party may resort to legal remedies. 40
William May, speaking of doctors and patients, noted that the contrac-
tual model "tends to reduce professional obligation to self-interested
minimalism, quid pro quo. Do no more for your patients than what
the contract calls for: specified services for established fees." 4 1 The
result, May argued, is "a professional too grudging, too calculating, too
lacking in spontaneity, too quickly exhausted to go the second mile
with patients along the road of their distress."42 In contrast, the cove-
nantal model is more expansive and open-ended. There is a willing-
ness to go beyond the bottom-line and do things that are not
contractually required but which can help the other party. In other
words, the covenantal relationship "is a bit like entering a friend-

38. Johanna M. Smith, Raymond Chandlerand the Business of Literature,in THE

CRITICAL RESPONSE TO RAYMOND CHAN DLER 183-201 (J. K. Van Dover, ed., 1995).
39. Allegretti, supra note 27, at 1110-29.
40. Id. at 1114.
41. WILLIAM F. MAY, THE PHYSICIANS COVENANT: IMAGES OF THE HEALER IN MEDI-
CAL ETHICS 118 (1983).
42. Id. at 122.
592 CREIGHTON LAW REVIEW [Vol. 44

ship."4 3 Furthermore, while the contractual model assumes that both

parties are fully autonomous agents who possess equality in bargain-
ing strength, the covenantal model is more realistic and recognizes
that sometimes one party is more vulnerable than the other. As Hes-
sel Bouma put it:
[Clonditions such as illness, immaturity, and differing exper-
tise can make covenantal people quite unequal. Perhaps they
are equal in dignity and worth, but they are not always equal
in their ability to express that dignity and worth. So the ine-
quality of people is as relevant to covenantal responsibilities
as is their equality. The increased vulnerability of one part-
ner automatically implies greater responsibility on the part of
the other. 44
In The Big Sleep, the vulnerability of the dying General
Sternwood placed greater responsibility on Marlowe. His compassion
for his dying client led him to go beyond the minimalism of contract.
He would not sleep with Carmen even though he could have done so
without violating the explicit terms of his agreement with Sternwood;
he would not have done so because, "[ilt's a question of professional
pride. You know-professional pride. I'm working for your father.
He's a sick man, very frail, very helpless. He sort of trusts me not to
pull any stunts."4 5 He would go beyond the terms of his employment
and search for Rusty Regan because he realized that the General
wanted him to do so. And he was willing to become part of the nasti-
ness in order to protect his client from becoming part of it. 4 6 Marlowe
struggled to transcend the contractual model for something like a cov-
enantal relationship with his client.
One of the problems Marlowe faced in his relationship with Gen-
eral Sternwood deserves special attention. Marlowe was relatively
poor. His office and apartment were simple. He had few possessions:
"Not much; a few books, pictures, radio, chessmen, old letters, stuff

43. Allegretti, supra note 27, at 1120. Others have analogized the lawyer-client
F. COCHRAN, JR., ET AL., THE COUNSELOR
relationship to a friendship. See, e.g., ROBERT
AT LAw: A COLLABORATIVE APPROACH TO CLIENT INTERVIEWING AND COUNSELING 176-82
(1999); THOMAS L. SHAFFER AND ROBERT F. COCHRAN, JR., LAWYERS, CLIENTS, AND
MORAL RESPONSIBILITY 40-54 (1994); Thomas D. Morgan, Thinking About Lawyers as
Counselors, 42 FLA. L. REV. 439, 455-59 (1990). Charles Fried uses the analogy of the
lawyer-as-friend for a different purpose, to explain why lawyers do things for clients
that ordinary reality condemns as immoral. Charles Fried, The Lawyer as Friend; The
Moral Foundations of the Lawyer-Client Relationship, 85 YALE L. J. 1060, 1076-87
(1976). For a criticism of Fried, see Edward A. Dauer and Arthur A. Leff, Correspon-
dence: The Lawyer as Friend, 86 YALE L. J. 573, 575-80 (1976).
44. HESSEL BOUMA, 111, ET AL., CHRISTIAN FAITH, HEALTH, AND MEDICAL PRACTICE
87 (1989).
45. CHANDLER, supra note 2, at 707.
46. Id. at 763-64.
2011]1 LEGAL AND PROFESSIONAL ETHICS 593

like that."47 He was on the side of life's losers, the little men and wo-
men who are beaten up by a system where the wealthy and powerful
oppress the rest. Marlowe, looking at Carmen, thought, "To hell with
the rich. They made me sick."48 Marlowe was able to distance himself
somewhat from this Darwinian world where the strong prey on the
weak because he was his own boss and could choose the kind of work
he did. He had "achieved a form of economic independence by working
as a self-employed detective, able to accept or refuse clients or jobs on
the basis of his own judgment."4 9
Yet although the rich made him sick, Marlowe made his living
serving them. Not only in The Big Sleep, but in most of the other
novels, it was the wealthy who hired Marlowe and to whom he owed
his loyalty. He was hired to protect their wealth, property, and good
name. This created a tension at the heart of the professional-client
relationship-it is not easy to work for clients you dislike or dis-
trust.5 0 Marlowe's wisecracks and quips were one way he preserved a
sense of autonomy and control over the situation. His insubordination
was another. But Marlowe dealt with this tension most directly by
keeping firm control over what he would and would not do. His
prickly sense of honor-witness his offer to Sternwood to return his
fee-was his way of asserting a necessary measure of independence
from his client. At the same time, as we have seen, Marlowe put the
client above the state. "The client comes first, unless he's crooked.
Even then all I do is hand the job back to him and keep my mouth
shut."5 1 The client came first, but no one, not even the client, had the
right to use Marlowe for a criminal end or involve him in a criminal
enterprise. Marlowe would not be the witting accomplice to a client's
crookedness; no one could buy that much of him. In such a case, Mar-
lowe would withdraw, return his fee, and keep silent. 5 2 General

47. Id. at 708.

48. Id. at 636.
49. Irwin, supra note 31, at 222.
50. Lawyers, too, often represent clients they do not like and often have doubts
about the character of a client or the morality of a cause. See Joseph Allegretti, Shooting
Elephants, Serving Clients: An Essay on George Orwell and the Lawyer-Client Relation-
ship, 27 CREIGHTON L. REv. 1, 7-11 (1993) (discussing the reasons for lawyer hostility
towards clients).
51. CHANDLER, supra note 2, at 751.
52. Marlowe's personal rules about when to withdraw from a case are similar to
the rules for lawyers. The Model Rules require a lawyer to withdraw from a case "if the
representation will result in violation of the rules of professional conduct or other law.
MODEL RULES, supra note 29, R. 1.16(a)(1). The Model Rules permit withdrawal, inter
alia, if a client "persists in a course of action involving the lawyer's services that the
lawyer reasonably believes is criminal or fraudulent;" if "the client has used the law-
yer's services to perpetrate a crime or fraud;" if"a client insists upon pursuing an objec-
tive that the lawyer considers repugnant or with which the lawyer has fundamental
disagreement;" or if "other good cause for withdrawal exists." MODEL RULEs, supra note
594 CREIGHTON LAW REVIEW [Vol. 44

Sternwood may not have been a moral man-he told Marlowe that
neither he nor his daughters had "any more moral sense than a cat"-
but he was not crooked; he was not hiring Marlowe to break or evade
the law.5 3 In his cause, Marlowe's loyalty was absolute.
This delicate balancing act allowed Marlowe to function in a
world where the rich were the source of his livelihood. Once again,
one can fault Marlowe's approach-maybe he should only have
worked for the poor and the marginalized. But in a capitalist econ-
omy, those with money were most likely to need a private investigator,
and Marlowe had little choice but to be financially dependent upon the
wealthy. His self-image, and his self-respect, would not allow him to
become a mere lackey, a hired gun of the rich, and so he constructed
his elaborate code of conduct to protect not only his autonomy, but also
his sense of honor.
Looked at in this way, Marlowe had much to offer contemporary
lawyers. They too inhabit a world that is often corrupt. They often
represent rich and powerful clients or clients that they dislike or dis-
trust. Sometimes they represent clients who are crooked and want to
use their services for illegal ends. Like Marlowe, they must deal with
conflicts of interest and with financial and sexual temptation. They
must walk a tightrope between becoming hired guns or paternalistic
bosses of their clients. They too must determine the limits of their
loyalties-whether their duties to a client will override or give way
before their responsibilities as members of a profession and citizens of
a state. No matter how hard they try, at times they cannot avoid be-
coming complicit in the world's horrors-becoming part of the nasti-
ness. Marlowe provided a template, a kind of moral model that
lawyers can benefit from, regardless of whether they agree with each
and every one of his choices. Like Marlowe, lawyers need to carve out
some measure of independence and autonomy vis-h-vis clients in order
to preserve their integrity. And, like Marlowe, they need to cultivate a
personal code of ethics to guide them through the maze of conflicting
loyalties that often arise during a case.
Marlowe did not vanquish evil in The Big Sleep. He did not right
all the world's wrongs. He did his work, took his pay, and went on to
the next job. In this he was again like many lawyers. They take their
moral life one client at a time. They are not always able to do much
about the deeper structural and systemic causes of oppression and cor-
ruption that infect society (which does not mean that they should ig-

29, R. 1.16(b)(2), (3), (4), (7). Likewise, Marlowe's determination to keep silent after
withdrawing from a case is analogous to the rule for lawyers; the Model Rules provides
that the duty of confidentiality continues even after a lawyer withdraws from a case.
MODEL RuLEs, supra note 29, R. 1.6 cmt.
53. CHANDLER, supra note 2, at 596.
2011]1 LEGAL AND PROFESSIONAL ETHICS 595

nore these larger evils as Marlowe seemed to do). 5 4 But there are
always things to be done, choices to be made.
Before he became the best-selling writer of the Spenser mysteries,
Robert B. Parker wrote a dissertation on the "violent hero" of Ameri-
can detective fiction.55 His comments about Marlowe are especially
pertinent. Parker said, "The city of Los Angeles filled with violence
and corruption and anguish serves convincingly as a metaphor for the
modern world. Through it goes Marlowe insisting on human val-
ues . . . ."5 6 Marlowe's "sense of decency, his compassion for the fallen"
comes through on every page.5 7 In some ways he appeared to be a
failure. But in the end, his code of honor, derided by many as obsolete,
may be the chief badge of his success: "His triumph is not that he
cleans up Los Angeles, but that he remains a man of honor."58 Mar-
lowe's continuing quest to remain a person of honor makes him a
moral exemplar for all lawyers struggling to be true not only to their
clients but to themselves.

54. Lawyers, for example, are well-situated to lead efforts to reform legal practice
and legal institutions to make them more humane and just. See, e.g., Joseph Allegretti,
Clients, Courts,and Calling: Rethinking the Practice of Law, 32 PEPP. L. REv. 395, 404-
07 (2005).
55. Robert Brown Parker, The Violent Hero, Wilderness Hero, and Urban Reality:
A Study of the Private Eye Novels of Dashiell Hammett, Raymond Chandler and Ross
MacDonald (Dissertation, Boston University, 1970).
56. Id. at 141-42.
57. Id. at 130.
58. Id. at 126.
596 CREIGHTON LAW REVIEW [Vol. 44