Are Prosecutors the Constitution’s Gatekeepers?

Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 UC Davis L. Rev. 1591 (2014).

This is a bad time for the police officers. Last year, a series of cases in New York federal court exposed the NYPD’s stop and frisk policy as unlawful and racially biased. Following the shooting in Ferguson and the death of Eric Garner in Staten Island, thousands took to the streets to protest. The prosecutors in these two cases were widely criticized as well for failing to obtain indictments against the officers. Many wondered whether the prosecutors were complicit in a system fraught with inequality and prejudice. Secretary of State, Hilary Clinton, responded that the criminal justice system is “out of balance.” In a new article, Russell Gold argues that we can help restore the reputation of the criminal justice system by implementing what he calls, “administrative suppression.”

Administrative suppression would require prosecutors to decline to use illegally seized evidence even if courts would rule the evidence admissible. Prosecutors, in other words, have a constitutional and ethical obligation not to use evidence seized in violation of an individual’s Fourth Amendment rights. In the past few decades, the Court has radically restricted the scope of the exclusionary rule, and as a result, illegally seized evidence is often admissible in criminal cases. Gold argues that these decisions only pertain to the judicial branch. Rather than exploit the increasingly weak remedy to obtain more convictions, prosecutors, in their role as arbiters of justice and agents of the executive branch, should respond by refusing to use the tainted evidence in their cases.

Gold argues that the prosecutor’s duty to refrain from using illegally seized evidence derives from the executive branch’s responsibility to interpret and abide by the constitution’s mandates. He draws on Larry Sager’s seminal article on “constitutional underenforcement” to argue that the Supreme Court’s distinction between the Fourth Amendment right and the exclusionary rule’s remedy has left us with exactly the sort of void Sager identified.1 Gold argues that the Court has restricted the scope of the exclusionary rule and declined to exclude evidence in many cases in which there is a violation of a constitutional right because it does not want to infringe on the prerogative of the executive branch. Separation of powers, in other words, has led the court to limit its institutional role in policing Fourth Amendment violations. As Sager argues, this is the moment when the executive must step in to the breach.

This argument is both innovative and compelling. Gold does not, however, analyze a parallel and perhaps even more pervasive argument that the Court makes in support of its gradual erosion of the exclusionary remedy. It is not exactly institutional incompetence that has led to the disintegration of the court-made remedy as much as it is the Court’s sense that the benefit of deterring police misconduct is outweighed by the cost of keeping truthful evidence from the fact finder.

The Supreme Court abandoned an earlier understanding of the exclusionary rule as an integral part of the constitutional guarantee. The Court no longer sees the judicial branch’s integrity compromised when courts admit evidence seized in violation of an individual’s rights. In the 1970s, the twin rationales supported a robust exclusionary rule but in the following decades the Court began to recast the argument. The Supreme Court now defines the Fourth Amendment as a constitutional right and the exclusionary rule as a judicially crafted remedy designed to deter constitutional violations. The deterrence rationale has led the Court to restrict the scope of the exclusionary rule precisely because in its view, the benefit to the public in protecting individual rights is often outweighed by the damage done by excluding truthful evidence in criminal cases. In Justice Cardozo’s famous words, “the criminal is to go free because the constable has blundered.”2 Gold does not fully engage the fact that, in this regard, his proposal for administrative suppression would lead to the same problems as judicial suppression.3

Gold argues that prosecutors should do precisely what the court declines to do itself. When he argues that prosecutors cannot be complicit in police illegality, Gold’s reasoning sounds much like the Court’s old and currently out-of-fashion integrity argument: Using illegally seized evidence compromises prosecutors’ integrity. Gold’s argument that prosecutors’ ethics demands administrative suppression is more persuasive than his argument that the Constitution does.  A prosecutor has the obligation to serve justice under Model Rule 3.8, which Gold argues means that he must not use evidence seized illegally. But the mandate to serve justice is complicated. Of course, respecting the rights of defendants is part of the calculation but so too is obtaining a just outcome by using all evidence the court deems admissible. The duty to act competently and diligently similarly require a prosecutor to serve the interests of the client, in this case the people or the community. There is a tension between Gold’s conclusion and the countervailing duty to protect the client by using admissible evidence to secure a conviction when one is warranted. While Gold favors the former, it is not clear that the complex rules governing prosecutors’ conduct mandate this choice.

Courts may not be fully enforcing Fourth Amendment rights but that does not dictate how the other branches should address the problem. Administrative remedies, such as direct police sanctions, would be more consistent with the Court’s understanding of the constitutional problem than administrative suppression. Fines and employment consequences for offending officers, unlike administrative suppression, would not involve the exclusion of relevant evidence from criminal trials. These sorts of solutions would not create the same windfall to individual defendants that the Court laments. Nor would the community suffer as much for the police misconduct. The value of direct police sanctions, however, may be beside the point if prosecutors’ ethical obligations require them to decline to use illegally seized evidence, as Gold suggests.

Gold argues that prosecutors are bound by ethical obligations to “suppress” the fruits of Fourth Amendment violations. Gold makes a more persuasive case that ethical obligations demand this response than that the Court’s increasing unwillingness to order the suppression of illegally seized evidence creates this responsibility. Prosecutors are, as Gold points out, supposed to serve justice. They are supposed to protect the rights of defendants and the civil liberties of all citizens as well as pursuing convictions. Professional ethics may mean that the rejected rationale for the exclusionary rule – that integrity is compromised by the use of illegally seized evidence – applies with even greater force to prosecutors than to courts. Gold makes an interesting and provocative argument that in this instance protecting defendants rights should trump pursuing the client’s interest in obtaining a conviction by using admissible evidence but it is not entirely clear that he has supported his choice between competing obligations and competing conceptions of justice.

Gold’s article stayed with me and provoked me to think about the criminal justice system in a different way. Gold concludes that by suppressing tainted evidence, prosecutors will restore faith in the system, and in the long run, this will lead to greater respect for the law, which in turn will ultimately mean less crime. This is an empirical conclusion and it’s hard to say for sure whether it is so, but it is certainly true that we need to think more creatively about how to restore faith in a system whose legitimacy is so often in doubt. Recent events make this endeavor even more urgent. Gold’s article inspires his readers think critically about how changing the prosecutor’s role in the system might help.



  1. Lawrence Gene Sager, Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978). []
  2. People v. Defore, 242 N.Y. 13, 21 (1926). []
  3. Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 Ill. L. Rev. 363. []
Cite as: Rebecca Roiphe, Are Prosecutors the Constitution’s Gatekeepers?, JOTWELL (May 25, 2015) (reviewing Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role, 47 UC Davis L. Rev. 1591 (2014)), http://legalpro.jotwell.com/are-prosecutors-the-constitutions-gatekeepers/.
 
 

The New World Order for Lawyers and the Legal Profession(s)

Ronit Dinovitzer & Bryant Garth, Lawyers and the Legal Profession, (UC Irvine School of Law Research Paper No. 2015-19), available at SSRN.

One of the main concerns of the authors is the structure of the legal profession in which perpetual reproduction of hierarchies forms a contest among different elements of the profession. The configuration of the profession shapes its research which places corporate lawyers and firms at the top of the hierarchy. This seems to stem from the early Cravath idealisation of law firm development. Even though the Cravath model dates from the late 19th century, it reverberates still in the 21st century and has captured scholars’ thinking. It appears difficult to shake off these established idealisations and models when discussing the legal profession. Dinovitzer and Garth (D&G) endeavour to show how these cleavages rip through the study of legal professions.

“Lawyers and the Legal Profession” draws on the research done on the structure of the legal profession, its divisions, lawyers’ backgrounds (gender, ethnicity, class), law firms and globalisation. The range is broad but there is one caveat, which is most of the work referred to is based on research done within the US. It is legitimate to question this given the global differences between legal professions, regulatory systems and the like. Although the Cravath model might have been the blueprint for law firm organisation that was exported by American lawyers—and its residues are apparent—whether it remains the dominant model is open and contested, even, perhaps, within the US. See, for example, the rise of the “smart” law firm (Wald). I return to this later.

Starting with the two-hemispheres model of the social structure of the legal profession D&G show its enduring attraction to researchers but more importantly as an almost unshiftable barrier to change within the profession. This is augmented by their analysis of different social groups and their attempts at breaching this barrier. Despite huge advances women still are more evident in “settings with lower pay, less power, and less prestige” (D&G: 3). Women are “more likely to work in government, legal services, or public defender and public interest positions” (id). Rewards and promotion in law are fraught for women.

Race and class are factors that can hinder career prospects in law although law school rankings can trump social origins. However, lower social class can produce lower earnings over time.

Satisfaction with law careers appears to be distributed throughout the range of legal practice. Misery is not the defining emotion notwithstanding layoffs and declining law school enrolments, according to the After the JD study. It appears that satisfaction is correlated to lawyers’ expectations and social origins. Those outside the corporate law firm circle find satisfaction because of their achievements contrary to the dissatisfaction expressed by Big Law lawyers. Lawyers from lower socio-economic groups tend to denounce Big Law in order to maintain their satisfaction, something that again reinforces difference and hierarchy.

In the realm of practice solo and small firm lawyers have been subjected to deskilling and deprofessionalization, they worry about status and respectability, and their numbers are shrinking. The large law firm sector is thriving and growing. Yet despite growth and economic success, the corporate world is beset with new problems. Established models of law firm growth hit the buffers in the recession when corporations intensified the changes in the ways they used law firms. No longer established long term one-to-one relations, but clusters of firms identified with star lawyers selected as and when by in house counsel. The recession also demolished the sanctity of partnership with equity partners being laid off along with associates and non-equity partners.

The issue of corporate lawyers’ professionalism and independence from clients is variable. Evidence points both ways: lawyers can remain apart from their clients’ interests, their values give them strength, yet lawyers are desperately seeking business and are therefore willing to compromise their positions and professionalism and be the weaker party. D&G’s inference is that lawyer-client relationships are more nuanced and defy categorical conclusions.

One of the most distinctive types of client is the in house counsel, a relatively understudied part of the profession compared to law firm lawyers. While the amount of research on in house counsel has increased, according to D&G, it seems to focus on the autonomy and independence of such counsel from their employers. This suggests there is insufficient research on the relationships of in house counsel with their external counsel. Nevertheless, we are seeing more research on in house counsel being carried out outside the US. For example, the Harvard GLEE project has produced a number of papers on the role of in house counsel in such countries as India, Brazil and others.

Indeed, when D&G turn to globalization they see it in terms of US expansion and imperialism. Their view is simultaneously historical and ahistorical. How is this paradox possible? Using the end of the Cold War as their starting point coupled with the export of neoliberal economics, they show how law firms pursued their clients around the world. Of course one’s view is shaped by one’s perspective. If D&G had used an earlier starting date their picture would be different. Colonial regimes and empires had inbuilt advantages in developing exports and services. Certainly the City of London law firms were global in the 19th century as were some in France. We need more research to bring out these themes. For example, the development of the railways globally in the 19th century would show a more mixed and nuanced market for legal services. Moreover, not only are we now seeing more intense competition among legal service suppliers from different parts of the world, we are seeing variation in the ways these suppliers are organising themselves.

Ideal types, or even archetypes, have been remarkably enduring in legal profession research. One dominant archetype, for example, is the Cravath model of law firm development which is clearly reinforced in the research D&G examine. (See Regan’s Eat What You Kill) Yet we know that it has been challenged as deficient by some scholars in the US and now has declining relevance there and elsewhere. Why is this not more apparent in their survey? It is because D&G focus mainly on US research which is still carried out in law schools. Look elsewhere and a different mise en scène appears. Within Europe, and other parts of North America, research on professional service firms (PSF), including law firms, is increasingly conducted in business schools which use different theoretical frameworks and arguments to those found in the typical legal professions literature, especially in the US. Institutional theory examines the foundations of PSFs (Muzio, Brock & Suddaby)—their cultural, cognitive and regulative pillars (Scott). Organisational theory is now far more sophisticated than in the heyday of the two hemispheres. Research on leadership in PSFs shows the subtleties of commanding authority in organisations without clear demarcations of authority (Empson). The role of emotional labour assumes greater importance (Hochschild). And theories of globalisation now incorporate the concept of the subaltern (Sousa Santos) and cosmopolitanism (Flood & Lederer).

The role of regulation now plays an increasingly imperative role in determining the structures and activities of professions. In the UK the Legal Services Act 2007 has given rise to a new type of law firm, the Alternative Business Structure. The freedom accorded to legal services providers has attracted US companies—not law firms—such as LegalZoom and Axiom to establish in the UK. Globally the accounting firms, or more accurately professional service firms, are preparing to challenge the global hegemony of law firms. Legal process outsourcing has dramatically affected the prospects of lawyers wanting to obtain jobs in conventional law firms. And the global trade talks that take place don’t refer to lawyers but legal services providers (Terry). This is creating new areas of research that will alter our images of the legal profession and professions in the future. Perhaps it is a combination of tunnel vision and a restrictive set of professional strictures within the US that produces such a conservative outlook for the legal profession.

Cite as: John Flood, The New World Order for Lawyers and the Legal Profession(s), JOTWELL (April 27, 2015) (reviewing Ronit Dinovitzer & Bryant Garth, Lawyers and the Legal Profession, (UC Irvine School of Law Research Paper No. 2015-19), available at SSRN), http://legalpro.jotwell.com/the-new-world-order-for-lawyers-and-the-legal-professions/.
 
 

Not Business as Usual for In-House Counsel

One of the most interesting things written about professional responsibility in 2014 is not a book or a law review article, but the report of an internal investigation. Anton Valukas, a former United States Attorney, now chair of the Chicago law firm Jenner & Block, was retained by the board of directors of General Motors to investigate the company’s inadequate response to reports of a serious defect in some of its cars. As extensively reported, a faulty ignition switch used in several G.M. cars, including the Chevrolet Cobalt and Saturn Ion, would sometimes fail in a way that both shut off the engine and disabled the car’s airbags.1 The switch departed from its intended design in a crucial respect – the torque was less than specified, so that if a driver inadvertently bumped into it, or if the keys hanging from the ignition switch were too heavy, the electrical system might change from “run” to “accessory” mode. As early as 2005, G.M. started to receive reports of crashes in which the car’s airbags failed to deploy. At first they did not suspect a problem, as there were other factors that might have caused the airbags to fail to deploy. It was also hard to track down the problem because the engineer who had approved the original, faulty switch also approved a change to the switch design that solved the problem, but did so in a way that obscured the original problem.2 But by about 2007, it was becoming clear that there might be a defect in the electrical system of certain car lines. Finally, in early 2014, G.M. publicly disclosed the defect, began recalling as many as 2.6 cars, and established a compensation fund for the victims of switch-related accidents.

What happened between 2007 and 2014? The long and short of it is, evidence of a possible defect was fed into the machinery of a cumbersome, bureaucratic process that churned on and on without moving toward a resolution. G.M. did not set about to cover up the problem. It has a byzantine structure of review programs, tracking systems, and cross-disciplinary committees that exists precisely to detect and rectify issues like the ignition switch defect.3 Customer satisfaction issues, which comes to the attention of G.M. personnel involved in marketing, are supposed to get directed to engineers for improvement, coded for whether the problems are a mere annoyance or a possible safety concern.4 Managers from divisions of products, systems, and safety engineering periodically met with business managers to work on solutions to safety problems and overcome roadblocks.5 Additional committees dealt with problems manifesting themselves in the field, and had contact with representatives from engineering, marketing, business, and legal teams.6 Reading the description of these procedures and protocols, one comes away with the impression of a company that takes its obligations to customers quite seriously, but in reality the redundancy and ambiguity inherent in the structure sapped the energy from the company’s response. With multiple committees dealing with various aspects of the same problem, no person or centralized team had responsibility for making sure something got done. CEO Mary Barra memorably testified before Congress about the “G.M. nod,” when everyone in the room agrees with a proposed plan of action, but no one does anything to make it happen, and the “G.M. salute,” which consists of crossed arms with fingers pointing toward others, to whom responsibility is being punted.7 The human cost of this dithering can be measured in the injuries and deaths that would have been prevented if prompt corrective action had been taken.

Revelations of corporate wrongdoing are inevitably followed by the question, memorably asked by a federal judge surveying the wreckage of the savings and loan industry in the late 1980’s, “where were the lawyers?” Judge Stanley Sporkin demanded to know, “[w]here were these professionals . . . when these clearly improper transactions were being consummated?”8 Although the nature of G.M.’s wrongdoing was negligence and inaction, as opposed to willful frauds, Judge Sporkin’s question is still the right one to ask. The answer turns out to be that lawyers were involved in the process of responding to reports of defects in the ignition switch, but they didn’t do enough. The really remarkable thing about the G.M. recall case is that, after the dust settled, a bunch of lawyers had been fired for not doing enough.9 It therefore becomes an urgent practical as well as theoretical matter for lawyers to consider the Valukas Report and determine what the lawyers for G.M. did wrong.

Accident reports had mobilized the investigation and response process, but the Valukas Report faults the lawyers for not “impart[ing] a sense of urgency” to the investigation. (P. 154). They lawyers were not assisting in a cover-up. Attorneys familiar with products liability cases pending against G.M. asked why the company had not ordered a recall and were told that the engineering department was “acutely aware” of the issue and was doing everything they could. (P. 184). Yet CEO Barra said that the lawyers “didn’t take responsibility; didn’t act with any sense of urgency.”10 In particular, they dealt with the ignition switch problems as “business as usual,” without alerting G.M. general counsel. One might object that it is unfair to blame the lawyers for what is, after all, a not uncommon problem of organizational dysfunction. While not exonerating individual decision-makers, many after-the-fact reports on corporate wrongdoing focus on structural explanations such as diffusion of responsibility, groupthink, and pluralistic ignorance.11 Unlike the players in many of these cases, however, the lawyers for G.M. were not relatively powerless underlings, dependent for their professional survival on a “rabbi” or protector higher in the corporate chain of command.12 They were highly experienced, trusted by senior management, and in some cases in charge of the committees that made decisions about product recalls.

The practical upshot of the report seems to be that in-house lawyers must make sure not only to refer evidence of a problem to the right person, but also must follow up to make sure action has been taken. More interesting theoretical questions, which deserve careful exploration, are whether lawyers have subtly conflated the expectations and duties of two roles – litigation advocate and corporate counsel. The actions of many of the lawyers fired by G.M. can be explained by the advocate’s mindset. Client counseling is different, and the firing of these lawyers shows that some corporate clients expect something other than “zealous advocacy” from their lawyers.



  1. See Hilary Stout, After a G.M. Recall, a Fiery Crash and a Payout, New York Times (Sept. 25, 2014); Hilary Stout, et al., For a Decade, G.M. Response to a Fatal Flaw Was to Shrug, New York Times (June 5, 2014); Rebecca R. Ruiz, et al., 13 Deaths, Untold Heartache, From G.M. Defect, New York Times (May 26, 2014). []
  2. See Valukas Report, at 53 (describing design release engineer Raymond DiGiorgio’s decision to approve the original switch), 98-101 (recounting DiGiorgio’s change to switch without making change to the part number, which G.M. CEO Mary Barra characterized as a violation of “Engineering 101” standards). []
  3. See Valukas Report, Appx. B, at 282-91 (summarizing systems maintained in connection with G.M. engineering and product development process, internal investigation, and products liability claims). []
  4. Id. at 283 (describing Product Resolution Tracking System). []
  5. Id. at 286 (describing Vehicle and Process Integration Review). []
  6. Id. at 289-90 (describing Field Performance Evaluation and Product Investigation processes). []
  7. See Peter J. Henning, How G.M.’s Lawyers Failed in Their Duties, New York Times (June 9, 2014). Barra’s candid testimony about the dysfunctions within the G.M. organization is an ironic counterexample to Max Weber’s theory of bureaucratic organizations, which emphasizes their capacity for carrying out complex tasks with “[p]recision, speed, unambiguity, . . . continuity, discretion, unity, strict subordination, [and] reduction of friction and of material and personal costs.” See Max Weber, “Bureaucracy,” in H.H. Gerth and C. Wright Mills, ed. and trans., From Max Weber: Essays in Sociology (Oxford: Oxford University Press 1946), p. 214. []
  8. Lincoln Saving & Loan Association v. Wall, 743 F. Supp. 901, 920 (D.D.C. 1990). []
  9. Sue Reisinger, “GM In-house Lawyers ‘Removed’ in Ignition-Switch Purge,” Corporate Counsel (June 9, 2014). []
  10. Reisinger, supra. []
  11. See, e.g. Max H. Bazerman & Ann E. Tenbrunsel, Blind Spots: Why We Fail to Do What’s Right and What to Do About It (2011); Diana Vaughan, The Challenger Launch Decision: Risky Technology, Culture, and Deviance at NASA (1996). []
  12. Compare the stories of ethical decision-making by middle managers in Robert Jackall, Moral Mazes: The World of Corporate Managers (1988). []
Cite as: W. Bradley Wendel, Not Business as Usual for In-House Counsel, JOTWELL (March 5, 2015) (reviewing Anton R. Valukas, for Jenner & Block, Report to Board of Directors of General Motors Company Regarding Ignition Switch Recalls (2014)), http://legalpro.jotwell.com/not-business-as-usual-for-in-house-counsel/.
 
 

Beyond Diversity Rhetoric: Understanding the Link between Professional Responsibility and Reasonable Accommodations for Lawyers with Disabilities

Over the last three decades organized bar groups and law firms have embraced the value of diversity, taking steps to promote diversity among ranks of lawyers. These diversity initiatives fall short when they do not include the interests of lawyers in different groups. One group that is often ignored is comprised of lawyers with disabilities. That is one of the reasons that I especially liked this article.

Professor Long’s article is a welcome addition to the scholarship on diversity in the legal profession. It addresses important issues that deserve attention, providing insightful observations on the connection between professional responsibility and the inclusion and treatment of lawyers with disabilities. Specifically, the article examines the inextricable link between lawyers’ professional responsibility under the ethics rules, professionalism, and the Americans with Disabilities Act (ADA) provisions that require reasonable accommodations for persons with disabilities.

Professor Long introduces the discussion with eye-opening accounts to illustrate how the legal profession has been slow to remove barriers that exclude persons with disabilities. Statistics and stories speak volumes. For example, thirteen years after passage of the ADA, a study indicated that there were 100 violations of accessibility codes in a courthouse built in 2011. (P. 1755, n. 6.)

Meaningful inclusion of persons with disabilities goes beyond access to courthouses, but requires addressing challenges that prevent full access and participation by lawyers with disabilities. The first challenge for persons with disabilities is dealing with hurdles in law school, such as documentation of disability status. Those who graduate from law school must navigate rigid requirements for admission to law practice, such as onerous mental health screening in some states. Following admission, lawyers with disabilities often encounter discrimination in hiring and employer reluctance to make reasonable accommodations.

These obstacles, coupled with employers’ concern related to productivity and the perceived costs associated with accommodations, contribute to the disproportionally low number of practicing lawyers with disabilities. (P. 1774-79.) Although the U.S. Census Bureau reported that 19% of the civilian noninstitutionalized population has a disability of some kind, a 2009 survey of law firms revealed that only .23% of lawyers were identified as having a disability. (P. 1756 (citing a U.S. Department of Commerce report and a survey conducted by the National Association of Law Placement).) It is unclear is these statistics accurately reflect the number of lawyers with disabilities because some of those lawyers may not report their status because they are concerned about the stigma associated with admitting that they are lawyers with disabilities. These statistics could change if more lawyers understood the professional responsibility dimensions of including lawyers with disabilities. Professor Long advances this worthy goal by persuasively arguing that lawyers should recognize that making reasonable accommodations is a means of complying with the professional obligation to provide competent representation.

Part I of Professor Long’s article provides a concise explanation of the provisions under the ADA requiring reasonable accommodations for qualified individuals who can perform the essential functions of the employment position. This overview includes a discussion of the benefits of accommodation, not just for the individuals with disabilities, but also for co-workers and clients. Part II analyzes the problems confronting lawyers with disabilities and their employers. This examination reveals how the preconceived notions of lawyers who make hiring decisions and concerns of employees with disabilities contribute to the reluctance to provide and seek reasonable accommodations. Understanding the role of perceptions, Part III suggests an analytical framework that could help shape attitudes of legal employers on the subject of lawyers with disabilities. Professor Long points out that the discussion concerning employment of lawyers with disabilities has largely framed the issues in legal terms under the ADA. He urges lawyers to rethink that approach and to treat the reasonable accommodation requirement as a means of complying with professional obligations to clients, as well as a means of advancing core values of the legal profession. (P. 1750.)

Professor Long notes that disciplinary rules in a few jurisdictions expressly prohibit discrimination. Because the failure to make reasonable accommodations is treated as discrimination under the ADA, lawyers arguably have an ethical duty to make accommodations in jurisdictions with anti-discrimination ethics rules. (P. 1779-80.) In other states, Professor Long asserts that managing and supervisory lawyers are ethically obligated to make reasonable accommodations because state versions of ABA Model Rule 5.1 require that they make “reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” (P. 1781.) Rule 5.1(b) imposes similar obligations on supervising attorneys. Thus, Professor Long argues that these rules require that that partners and supervising lawyers take steps to ensure that other members of the firm are providing competent representation. (P. 1781.)

In discussing lawyer’s ethical obligations to make reasonable accommodations Professor Long provides guidance to both employing attorneys and employees on how they approach a discourse on reasonable accommodations. This is another reason that I like this article: it provides practical suggestions on dealing with reasonable accommodation issues. It also makes concrete recommendations on how leaders of the bench and bar can promote the connection between professional responsibility, professionalism, and reasonable accommodation.

In addition to leaders of the bench and bar, other audiences would benefit from reading this article. Most obviously, hiring and managing attorneys should examine firm practices after reading the article. The article also helps lawyers with disabilities appreciate their own responsibility with respect to seeking reasonable accommodations. Professors and lawyers who work in the areas of lawyers’ professional conduct and admission to law practice should also read the article.

As noted in the introduction above, lawyers with disabilities are a group that is too often unrecognized when considering diversity of the legal profession. Although we have made some strides in advocating for increased diversity, the legal profession still has a long way to go in taking steps that actually promote diversity. Thanks to Professor Long we have a new conceptual framework that can help foster diversity by recognizing the connection between reasonable accommodation, professional responsibility, and professionalism.

Cite as: Susan Fortney, Beyond Diversity Rhetoric: Understanding the Link between Professional Responsibility and Reasonable Accommodations for Lawyers with Disabilities, JOTWELL (January 28, 2015) (reviewing Alex B. Long, Reasonable Accommodation as Professional Responsibility, Reasonable Accommodation as Professionalism, 47 U.C. Davis L. Rev. 1753 (2014)), http://legalpro.jotwell.com/beyond-diversity-rhetoric-understanding-the-link-between-professional-responsibility-and-reasonable-accommodations-for-lawyers-with-disabilities/.
 
 

The Relevance of Professionalism in a Post-Legal Services Act World

Nick Robinson, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism (Harv. Law Sch. Prog. Legal Prof., Research Paper No. 2014-20)available at SSRN.

To what extent lawyers should control their own profession, determine its rules, and be the arbiters of who should deliver legal services is a question that is increasingly subject to intense scrutiny. More jurisdictions are considering whether to follow the leads of Australia and England and Wales in liberalizing their legal professions. Canada, for example, is one of the most recent.

The American legal profession expresses significant concern about non-lawyer ownership of law firms. Both the American Bar Association and the New York State Bar Association have dealt with the issue and will probably continue so to do.

Although the two are quite separate non-lawyer ownership and unauthorized practice of law are related. Liberalization of legal services markets has led to more non-lawyers undertaking legal work, which in the US would not be permitted. This is contrary to legal practice in England and Wales where virtually all the tasks lawyers do are open to others. What accounts for the difference? It isn’t a matter of style: Gillian Hadfield has argued that over-regulation prevents US lawyers from innovating and expanding their markets.

Robinson alludes to different conceptions of professionalism that underlie the proper conduct of legal practice. ‘American professionalism’ signifies commitment to values of justice and the public interest whereas ‘English professionalism’ seems to be more aligned with business interests. This crude dichotomy is just that and neither conception truly reflects either sides’ interests. For example, in the early 20th century, Julius Henry Cohen, a New York lawyer, wrote a book titled, Law—Business or Profession? In the 1930s Karl Llewellyn was castigating the ‘law factory’ for attracting the best law graduates away from social justice. These arguments have never stopped, but merely resurfaced from time to time.

The 21st century, however, is bringing these arguments to a head as a number of countries have begun to alter their regulatory regimes to allow non-lawyers to own law firms. Robinson’s paper examines three jurisdictions to see if their modifications to regulatory frameworks are having any impacts on access to civil justice and professionalism. He takes England and Wales, Australia, and the US as his case studies. Using a mix of documentary sources and interviews, Robinson compares and contrasts and provides us with an interesting set of case studies.

Perhaps the main lesson drawn from the study is that context matters. The histories, constitutions, and professions are so different that intelligible comparison is difficult but not impossible. Despite this we can theorize about professionalism. To create another dichotomy the professional project can be perceived as a means of creating rent seeking monopolies or creating pools of expertise that contribute to the civilizing function of society. What is clear is that the state plays a key role in determining what forms of regulation professions will bear.

In England and Wales, according to Robinson, the initiative for legal services reform came from the competition authorities. Neo-liberal governments saw markets as ways of promoting competition which would improve consumer access to justice with the benefits of cutting legal aid funding. The Legal Services Act 2007 imposed external regulation on the profession and opened up non-lawyer ownership of law firms. Alternative Business Structures were vehicles that would facilitate different forms of delivery. Robinson notes that of the hundreds of ABS formed most deal with personal injury work and secondly with consumer affairs. He explains the prominence of personal injury work in two ways. First, the work is easily commoditized; it isn’t complex. Second, government outlawed referral fees between insurance companies and law firms and others. As a result consolidation between insurance and law firms took place. Robinson questions whether this gives rise to conflicts of interest. He discusses two companies: Quindell, a publicly traded holding company for personal injury work and Cooperative Legal Services, the legal arm of a supermarket conglomeration. Both are ABS and both have had troubling careers thus far.

Australia, with different regulations, has seen the emergence of the publicly owned law firm and other incorporated legal practices but not the ABS. The most well known is Slater & Gordon, a personal injury firm, which floated in 2007 and has since bought a number of law firms in Australia and the UK. Australia gave rise to the new approach to regulation by emphasising the entity rather than the individual lawyer as well as focusing on principles and outcomes instead of rules.

The third comparator is the United States, which although it has nothing equivalent to the UK or Australia, has other forms that could approximate their experience. Robinson refers to LegalZoom, the online legal services company, which provides company documents and wills amongst others and has established an ABS in England. Interestingly, despite restrictive UPL laws, investment in legal technology startups in the US far exceeds that of anywhere else. His second example is troubling as it concerns companies that represent Social Security Disability claimants, a seemingly vulnerable group. They appear rife with conflicts.

From each country Robinson attempts to discern if the changes have improved access to justice. In each he is disappointed. For him the potential for conflicts and prioritizing profits over social justice are ever present in these new forms of legal enterprise. Yet these are still to be tested. While this is a critical question in the light of declining legal aid budgets, it is also nothing new. Research from 40 years ago in the UK showed that law firms were mostly situated near middle class shopping centres not close to poor housing estates. Access to justice and legal needs have always been contentious. Indeed when legal aid was introduced in the UK at the time of the National Health Service and free education, lawyers opposed it until they realised its commercial potential. The welfare state was not considered an automatic good. Maybe it is too early to say if access to justice will be improved by these new legal business ventures. At present they augment rather than replace conventional lawyers. And their style and approach to legal practice is conservative and narrow. None of the truly multidisciplinary practice has yet come to the fore. The regulatory objective of improving consumer access to law is a continuing process rather than a destination, but it is embedded in the neoliberal economy.

Turning to professionalism Robinson sees challenges. Will commercialism, i.e. the merchandising of law as a commodity as opposed to a public service, and conflicts undermine public trust? Potentially they could, but public trust was already fragile. Besides competition pressures towards opening up legal services, the other pressure was a deep public malaise against lawyers reflected in the high numbers of complaints about their ‘unprofessional’ behaviour. Protectionism and monopoly looked ugly to consumers who wanted a more responsive profession. Perhaps more transparent and accountable legal services providers can achieve this. There is no reason to believe that non-lawyer investors and owners will be less ethical than lawyers. (See Jordan Furlong’s critique of this view.) The reporting and financial accounting processes that companies have to undergo are considerably more transparent than most law firms’ procedures.

There is certainly the possibility of conflicts of interest, as Robinson indicates with Capita, which runs both migrant removal services and legal aid entitlement phone lines, and is buying a law firm. In the US companies that represent social security disability claimants are taking on contracts for the Social Security Administration thereby blurring the lines between advocacy and captive provider. But as the sociologists Terry Johnson and Julia Evetts show, professionalism is not static. It changes according to those who occupy the category and to the environment in which they work. Autonomous professionals are a highly contested category in law firms and other professions. The recent work of, for example, Faulconbridge and Muzio on globalizing law firms and that by Dinovitzer, Gunz and Gunz on corporate lawyers and clients suggest that bureaucracy and managerialism are weakening autonomy and affecting professional values. The arguments are open on this trend but there is a body of work that argues professionals organizations, outside the sphere of the alternative business structure, have mutated away from traditional collegiate partnerships towards more managed professional businesses (P2 to MPB as described by Cooper et al.) We can add Regan’s arguments about the necessity for trusted organizational cultures to inculcate ethics throughout law firms, but even this can be mutated by a firm’s specific approach to practice. Furthermore, the relationship between professional and client is increasingly mediated by third parties—insurance companies, HMOs, the state—which raises many questions about alliances and commitment that we have yet to tackle. But still legal regulators often cling to these outdated modes of professionalism.

Cite as: John Flood, The Relevance of Professionalism in a Post-Legal Services Act World, JOTWELL (December 18, 2014) (reviewing Nick Robinson, When Lawyers Don’t Get All the Profits: Non-Lawyer Ownership of Legal Services, Access, and Professionalism (Harv. Law Sch. Prog. Legal Prof., Research Paper No. 2014-20)available at SSRN), http://legalpro.jotwell.com/the-relevance-of-professionalism-in-a-post-legal-services-act-world/.
 
 

There’s No Time Like the Present for Some Optimism about the Future

“When did the future switch from being a promise to a threat?”
    –Chuck Palahniuk, Invisible Monsters: A Novel

The legal profession is often criticized as disinterested, if not fearful, of innovation in the delivery of legal services. As Benjamin Barton observes in the introductory chapter of his forthcoming book, Glass Half Full: The Decline and Rebirth of the Legal Profession: “Law may have changed less than any other area of the economy between 1850 and today. The same basic product is being sold and the same basic service is being performed.” But, as Barton quickly notes, “[n]o one dodges the reaper forever.” Through the next thirteen chapters, Barton proceeds to provide an insightful parsing of the past, present and potential future course of the American legal profession.

In homage to Larry Ribstein’s influential article, “The Death of Big Law”, Barton discusses current challenges faced by American lawyers through four different lens: “death from above”, “death from below”, “death from the state”, and “death from the side”. Although space constraints preclude a full exploration of the detailed analysis presented in the book, a brief summary of each of these four “deaths” follows:

  • Death from above: Here, Barton looks at the current challenges faced by Big Law firms after years of aggressively pursuing profits by increasing billing rates, associate-to-partner ratios and the number of lateral hires. Barton predicts that the instability resulting from these strategies (the fate of Dewey LeBoeuf is presented as a case study) coupled with increased client attention to efficiency and costs, means a future in which Big Law is faced with a significantly narrowed scope of business. While truly specialized “bet the company” legal work will continue to occupy some Big Law lawyers, Barton argues that much of the routine work currently performed will be taken up by cheaper alternative modes of delivery such as outsourcing and new technological solutions.
  • Death from below: In Barton’s view, sole practitioners and small firms will face a similar squeeze in the future as a result of increased computerization. Drawing from Clayton Christensen’s work on disruptive innovation, Barton observes that businesses like LegalZoom were able to gain an initial foothold in the market by doing work at the lowest margins, like selling legal forms. Although such businesses may not have originally been a source of significant competition (and, thus, concern) for lawyers, they have continued to move up the food-chain by offering more sophisticated products at cheaper prices. The result? Even without a move to deregulation or the introduction of alternative business structures, as has happened in England and Australia, Barton contends that solo practitioners and small firms will see a dramatically decreased market share: he writes, for example, that “[o]utside of court, it seems likely that any work that can be routinized or rationalized will be swallowed up [by competition from machines].” Moreover, it seems doubtful, according to Barton, that the legal profession will be able to continue to take solace in the availability of unauthorized practice of law prosecutions to defend its turf. He observes that “websites [offering free or very inexpensive legal advice] and virtual law firms have largely avoided prosecution for the unauthorized practice of law (“UPL”), and some, like LegalZoom, have grown so large and prevalent that the time to quietly nip them in the bud has passed.” More competition and less protection = death from below for solo practitioners and small firms.
  • Death from the state: Barton also explores challenges to lawyers’ future livelihoods arising from governmental and judicial efforts to curb litigation. A chapter detailing “death from the state” highlights, among other things, tort reform efforts, moves by the Supreme Court to tighten pleadings standards, and funding cutbacks to programs that provide legal services to impoverished Americans. Taken together, Barton contends that such trends will have an ongoing negative impact on the market for lawyers. One might wonder how much these trends signal a shifting market rather than a sinking market: is this simply about less litigation (and more mediation and arbitration) rather than less lawyering? Although Barton does not address this issue in a general manner, his discussion of the “rise of the settlement mill, where a few lawyers front a mass of non-lawyers who work solely on getting settlements for as many clients as they can, rarely, if ever, litigating” suggests that there are important quantitative changes at work in addition to possible qualitative ones.
  • Death from the side: One final piece of the puzzle explored is the familiar issue of the oversupply of law school graduates. Although there has been significant publicity on this trend and its consequences, Barton’s account is particularly interesting for its long-term view and his careful parsing of statistics. He notes, for example, that “[c]ontrary to the current focus on the size of law school classes, the steepest increase occurred in the 1970s, not the 1990s or 2000s.” Unsurprisingly, Barton sees the upshot of this trend as compounding the other threats to lawyers’ livelihoods: “When more people compete over less work the cost of that work goes down for consumers and wages also decline.”

In tracing these trends, Barton pulls no punches in setting out a devastating case of how short-sightedness and greed by Big Law partners, law school deans and faculty, and plaintiff-side lawyers has led to inertia and self-destructive decision making. As he elegantly summarizes: “Each has mortgaged the future and sullied their reputations in pursuit of short-term gains and quick cash.” The blame that Barton metes out, however, is balanced by his careful situating of the current gloomy state of affairs in the context of broader historical, cultural, legal, economic and technological trends.

True to the spirit of his title, Barton’s Glass Half Full is consciously not all doom and gloom. Accompanying Barton’s clever “four deaths” framework are a number of positive forecasts for the future.

One set of promising predictions concerns consumers, who Barton contends will be major beneficiaries of current trends. Among other things, Barton sets out a case for how technology can improve access to justice. On this topic, he is careful to acknowledge two important caveats: first, that computerization will not help those who are illiterate or who don’t have ready access to a computer and, second, that “technology will not reach all of American legal need equally” (in particular, he notes that providing legal information and drafting of legal documents like wills and divorce papers are things that computers can more easily help with than things like legal advice and in-court litigation work).

Barton also directly addresses the oft-raised concerns about the quality of technology-facilitated legal services. In support of his case, he cites, in part, the general absence of bad publicity or lawsuits against businesses like LegalZoom and the wealth of consumer review opportunities on the Internet. To be sure, both of these things are comforting, to a point. An additional issue that might have been usefully explored is the impact of legal services’ status as credence goods (i.e. as goods that consumers have difficulty in assessing the quality of) on how we can meaningfully assess consumer harm when it comes to technological innovations in the delivery of legal services. Nick Robinson’s recent work sounds another note of caution given his observation that “the impact of LegalZoom and companies like it so far on access to legal services” is neither well documented nor easy to assess.

The other half of Barton’s glass half full argument is that lawyers and law schools ultimately stand to benefit from the impending changes. For lawyers, Barton argues that the current slowdown will bring a brighter future for those who are able to remain employed in the form of alternatives to the often soul-crushing billable hour model and a narrowing of work to more interesting, complex tasks. On the entry side of things, Barton predicts that fewer students will enter law schools in future, resulting in increased competition between law schools and, eventually, better educational opportunities.

Barton’s vision of the future is far from utopian. It includes, for example, shrinking salaries, lost jobs and closed law schools. It also bears mentioning that elites of the profession appear to be occupying a healthy share of Barton’s half full glass: speaking about the future of BigLaw, for example, he notes that, “at the top of the food chain things are looking rosier than ever.” It is, however, a general lack of rose-colored glasses that is precisely this book’s strength. Barton offers some plausible positivity without being Pollyannaish. For its comprehensive and accessible (and often entertaining!) account of where we have been, where we are, and where we are headed, this book should be included on the 2015 “must-read” lists of members of the profession.

Cite as: Amy Salyzyn, There’s No Time Like the Present for Some Optimism about the Future, JOTWELL (November 18, 2014) (reviewing Benjamin H. Barton, Glass Half Full: The Decline and Rebirth of the Legal Profession (forthcoming 2015)), http://legalpro.jotwell.com/theres-no-time-like-the-present-for-some-optimism-about-the-future/.
 
 

On the Rise of Lawyers in Lobbying in India

Bhargavi Zageri, Notes from the Field: How India's Corporate Law Firms are Influencing Her Legal, Policy and Regulatory Frameworks, HLS Program on the Legal Profession Research Paper No.2014-19, 2014, available at SSRN.

Just as there has been a striking growth in scholarship on Indian law in recent years, there has also been a blossoming of writing on the Indian legal profession. Some of this writing has been less academic, and targeted at Indian lawyers themselves. Fitting the growing affluence of the Indian bar, there are now at least three online publications –Legally India, Bar & Bench, and Livelaw – that provide the latest news of the day about law firms, judges, law schools, and well known advocates in India. At the same time, a number of scholars, both inside and outside of India, have begun writing extensively on different aspects of the profession.

For example, in recent years Jayanth Krishnan has written on the motivations for the creation of “peel-off” law firms in the Indian corporate bar, Swethaa Ballakrishnen on women’s relative success in Indian corporate law firms, Pavan Mamidi on small town lawyers, Umakanth Varottil on the growth of the M&A bar in India, Abhinav Chandrachud on the motivations of Indian Supreme Court clerks, Greg Shaffer, James Nedumpara, and Aseema Sinha on building India’s legal capacity for international trade disputes, and David Wilkins and Mihaela Papa on how globalization has impacted the legal profession in India. Much, although certainly not all, of this recent writing on the Indian legal profession has taken place as part of the Globalization, Lawyers, and Emerging Economies (GLEE) Project at the Center on the Legal Profession (CLP) at Harvard Law School (full disclosure: I am currently a fellow at CLP and have contributed to the GLEE project).

One particularly compelling recent piece in this line of scholarship is by Bhargavi Zaveri, an affiliate research fellow at CLP, entitled Notes from the Field: How India’s Corporate Law Firms are Influencing Her Legal, Policy and Regulatory Frameworks, which provides a textured account of the role of lawyers in lobbying in India. While lawyers in many countries lobby, scholars have often neglected this face of the profession, perhaps because it is not an area where lawyers have an occupational monopoly. Rather lobbying is an economic and political sphere that lawyers engage in competition for dominance over, or at least a piece of the pie, with other professional and social groups. This is similar to fields like policymaking, where in many countries lawyers, economists, policy school graduates, and others vie for influence, each with their own disciplinary skill sets, professional reputations, and networks.

As Zaveri notes, lobbying in India, like many countries, has historically been viewed as a democratically suspect commercial activity that has connotations with corruption. Before economic liberalization much lobbying was behind closed doors, with former bureaucrats and other political insiders playing a dominant role. Today, other non-lawyer actors, particularly public relations firms, are prominently involved in lobbying Parliament and Ministers in crafting legislation. However, Zaveri shows that law firms have increased their lobbying presence in recent years, specifically around rulemaking, with several prominent Indian law firms such as Amarchand Mangaldas and J Sagar starting lobbying practices, and boutique lobbying firms also entering the market. Given its poor reputation in the public’s eyes lawyers at these firms are hesitant to call what they do “lobbying”, preferring euphemisms like “Policy and Government Affairs”, and they are quick to point out their activities generally help entire industries and not just particular clients.

Zaveri convincingly argues that an empowered post-liberalization regulatory state in India has opened more doors for lawyers to become involved in lobbying, especially around the rule making process. India’s regulatory state legitimizes itself in part through transparency measures, and, more recently, participatory decision-making, which formalize procedures for giving input into the creation of rules and regulations. Bureaucrats and regulators also rely on outsiders, particularly lawyers, to provide the detailed policy and legal inputs that they use to justify decisions that are increasingly open to public scrutiny. This gives lawyers a clear competitive advantage compared to other lobbyists when it comes to influencing regulation. Indeed, law firms have even been known to draft rules on the behalf of regulators.

Foreign companies entering the Indian market have been especially drawn to law firms for their lobbying. Many foreign companies are bound by anti-bribery laws in their home countries and see law firms as a relatively clean way to shape regulations and decision-making within the Indian government more generally. For example, many law firms lobby the Foreign Investment Promotion Board on the behalf of foreign clients, which plays a critical role in approving foreign investment in India.

Although the scope of her project was understandably limited, one wishes that Zaveri had been able to explore more generally the practice of lobbying in India. For example, do lawyer lobbyists frame their professional obligations towards clients or the public differently than other lobbyists? While the piece draws some comparisons to lawyers’ lobbying practices in the United States and the United Kingdom it would have been useful to know more about how the professional identities of lawyer lobbyists in these countries differ to their counterparts in India. More generally, one wonders what the role of lawyers and the profession in India should be in shaping the normative framework in which different economic interests and the government interacts.

The Indian legal profession – at a reported 1.3 million lawyers – is at least the second biggest in the world and, if it isn’t already, will likely soon become the largest. (By way of illustration: In 2000 there were 531 approved law schools in India. By 2013 there were 1390). Over the past twenty-five years the Indian profession has gone from one almost exclusively oriented around courts and litigation to one with a robust, albeit relatively small, corporate bar and many new subfields, like lobbying, that are giving lawyers a new role in Indian society. Scholars, like Zaveri, tracking these developments in India both provide a window into the unique characteristics of the Indian legal profession, but also how larger economic and political pressures may shape the profession in similar ways across continents and cultures.

Cite as: Nick Robinson, On the Rise of Lawyers in Lobbying in India, JOTWELL (October 17, 2014) (reviewing Bhargavi Zageri, Notes from the Field: How India's Corporate Law Firms are Influencing Her Legal, Policy and Regulatory Frameworks, HLS Program on the Legal Profession Research Paper No.2014-19, 2014, available at SSRN), http://legalpro.jotwell.com/on-the-rise-of-lawyers-in-lobbying-in-india/.
 
 

Just the Beginning: Studying the Global Demography of Lawyers

Ethan Michelson, Women in the Legal Profession, 1970-2010: A Study of the Global Supply of Lawyers, 20 Ind. J. Global Legal Stud. 1071 (2013).

In the past a few decades, feminization has been one of the most notable developments in the legal profession worldwide. From Continental Europe to North America, from Latin America to Asia, research has shown a rapid increase in the proportion of female lawyers in vastly different national and legal contexts (see Kay and Gorman 2008 for a review). Yet few existing studies provide a good cross-national comparison of the global trends of lawyer feminization. Despite the enduring structural barriers in recruitment, compensation, and promotion that women face in law firms and other elite legal institutions, they have continued to enter the bar in vastly different social contexts. What are the driving forces behind the feminization of lawyers? And how does this process vary from one country to another?

Using data on lawyer populations and gender compositions assembled from national censuses and lawyer statistics in 86 countries, Ethan Michelson’s recent study offers a comprehensive and convincing analysis of the relationship between bar expansion and lawyer feminization. Despite large variations of legal systems and lawyer demographics across different countries, Michelson finds a highly consistent pattern, that is, almost no country’s legal profession has attained a feminization level of at least 30% of women before its lawyer density (i.e., lawyer/population ratio) surpassed a level of 2,000 people per lawyer. In other words, feminization is part of some larger demographic changes in the legal profession worldwide.

The champion of feminization is Uruguay, where more than 60% of lawyers are women and the 30% threshold was crossed as early as 1974. Other Latin American and Caribbean countries were also early birds in this process. Eastern European countries such as Bulgaria, Latvia, Poland, and Romania are among the most feminized legal professions, with at least 50% of female lawyers. In comparison, the United States crossed the 30% threshold as late as 2005, with a starting point of less than 4% female lawyers in 1960. At the other end of the spectrum we find Asian countries such as India, Korea, Japan, and China, where women still account for less than 20% of the legal professions by 2010.

After describing the cross-national variations of lawyer feminization, Michelson presents the core findings of the article, namely, the correlations between lawyer density and feminization. By the scatterplots of 335 country-years on a two-dimensional space with four quadrants (A, B, C, and D) divided by density (2,000 people per lawyer) and feminization (30% of women), the analysis shows that the historical process of lawyer feminization has generally been one of the movement from (A) low density and low feminization, to (B) high density and low feminization, and then to (D) high density and high feminization. Very few countries had reached the 30% threshold before reaching a lawyer density of 2,000 people per lawyer (i.e., in quadrant C, low density and high feminization). This pattern is also confirmed by multivariate regression models using longitudinal panel data.

The next step that Michelson takes is an even more daunting statistical task, that is, to produce annual estimates of both the global population of lawyers and the global proportional representation of women among lawyers from 1970 to 2010. In this 40-year period, the estimated global lawyer population grew from 1.1 million to 5.0 million, with a 2.2 million increase for male lawyers and a 1.7 million increase for female lawyers. Although the absolute number of male lawyers was larger than that of female lawyers, the growth rate of the latter was much faster due to a very low starting point. However, China and India, the two most populous countries, are extreme outliers in this process. In 2010, those two countries had an estimated 12.4% of the world’s lawyers but only 3.5% of the world’s female lawyers. Even the United States is slightly below average in terms of lawyer feminization. Based on the statistical estimates, Michelson concludes that the global feminization of the legal profession has hardly begun. As large developing countries such as India and China further develop their legal professions to accommodate demands of economic growth and globalization, it is likely that we will observe both a larger number and a higher proportion of women in the legal profession globally in the near future.

Despite its technical nature, this article is a significant contribution to the scholarship on the legal profession in at least two aspects. First, it brings demography back to the empirical research on lawyers, which has been dominated by other concerns such as inequality, ethics, client relationship, or political mobilization in the past two decades. A good earlier study on lawyer demography is Halliday’s 1986 article on the American legal profession, but Michelson’s study is not only more sophisticated methodologically, but also a pioneering experiment on comparing lawyer demography cross-nationally. It is an admirable effort that will guide future research on gender and other issues in various national contexts.

Second, while socio-legal researchers have been generally skeptical of cross-national comparisons on lawyer/population ratios because of the vastly different legal systems, political systems, and legal services markets across the deep divide of Anglo-American law and Continental law (e.g., Rueschemeyer 1986), Michelson’s study suggests that lawyer density does have a global effect on the feminization of the bar as well as access to justice for women, as female lawyers are generally more likely to represent female clients. It would be fascinating to explore the global or local effects of other demographic phenomena such as lawyer migration (e.g., Liu, Liang, and Michelson 2014) or intergenerational reproduction (e.g., Dezalay and Garth 2002) on the social structure of the bar in future research. In this sense, this path-breaking study is just the beginning of research on the global demography of lawyers.

Cite as: Sida Liu, Just the Beginning: Studying the Global Demography of Lawyers, JOTWELL (September 15, 2014) (reviewing Ethan Michelson, Women in the Legal Profession, 1970-2010: A Study of the Global Supply of Lawyers, 20 Ind. J. Global Legal Stud. 1071 (2013)), http://legalpro.jotwell.com/just-the-beginning-studying-the-global-demography-of-lawyers/.
 
 

Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research

Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. (forthcoming 2014), available at SSRN.

Andy Perlman’s timing couldn’t be better. His new article, A Behavioral Theory of Legal Ethics, comes out just as negative reports of lawyers’ conduct are front page news again, this time as part of the GM story. The company’s lawyers failed to save their business and engineering colleagues from disastrous decisions; in fact, their conduct may have hindered GM from addressing problems systemically. While corporation counsel generally are not the sole check on ethical and competent decision making by company insiders, they certainly are positioned structurally to a framework that is intended to lead to good decision making. But it is not just corporate lawyers who are an issue for ethical conduct, of course. Prosecutors’ failure to reveal exculpatory evidence is a continuing concern, tax lawyers’ gaming the tax shelter system is the topic of a new book by Mitt Regan and Tanina Rostain (Confidence Games), and there are many more examples.

What makes Perlman’s article so timely is not simply the focus on lawyers’ failed judgments but his connection of these to a fundamental problem with the theory underlying legal ethics. This connection provides a larger context for considering ethical failures, moving beyond the particular characteristics of an individual to a general framework that spans lawyers’ individual differences and practice settings. According to Perlman, the theoretical foundation of legal ethics assumes that lawyers “are simultaneously capable of partisanship on behalf of clients while remaining sufficiently objective to ensure that their own conduct is ethical.”(p.6) In fact, the Model Rules of Professional Conduct obligate both partisanship (“in the sense of being aligned with a particular side of a matter” (p.6)) (see, for example, Model Rules of Professional Conduct 1.2) and the ability to consider the consequences of being a partisan in the context of obligations owed to non-clients (see, for example, Model Rules of Professional Conduct, Preamble and Scope (“Virtually all difficult ethical problems arise from conflict between a lawyer’s responsibilities to clients, to the legal system and to the lawyer’s own interest in remaining an ethical person while earning a satisfactory living.“). Nevertheless, this tension has not been adequately explored, according to Perlman: “Rarely,” he writes, do legal ethicists “discuss[] … whether this assumption relies on an accurate model of human behavior.” (p.11) It is just such a disconnect that has been identified as underlying the failings of GM’s lawyers according to a New York Times report, which commented that It is not clear whether any of G.M.’s lawyers even recognized there was an issue with how they were representing the company. Nor is it clear that they considered whether they needed to take action to protect it from greater harm.”1

In the article, Perlman takes aim at the assumption that “lawyers are capable of acting as partisans—representing one side of a matter—and actually identifying the line between permissible and impermissible behavior.” (p. 7, emphasis in original) He draws on social science research to do this, which reveals that the assumption is at best overstated; at worst, it is entirely unrealistic. He discusses “[n]umerous studies [that] demonstrate that our perceptions are easily distorted by the situations in which those perceptions occur and that partisanship can have a particularly strong distorting effect.  These studies offer powerful evidence that lawyers will have more difficulty making objective assessments on issues – such as whether a course of conduct is legal, moral, or consistent with conceptions of justice – than most theorists acknowledge.” (p.11)

The article also is an important contribution for teaching ethics. On one hand, it often is difficult for law students to relate to the lawyers whose activities result in cases central to professional responsibility casebooks; even the hypotheticals drawn by experts who combine practice and teaching experience in the field often are not taken seriously by students, who overestimate their ability to act independently and perceive the edges of ethical conduct. Perlman addresses these problems directly with suggestions for incorporating lessons on cognitive bias into legal education (p. 37-38). But in addition, the core of the article provides a clear and direct connection between legal ethics and social science research in a way that brings a nuanced reality to the study of ethics.  In this way, it adds to existing work (such as Leslie Levin and Lynn Mather’s Lawyer’s in Practice). that offers meaningful alternatives to focusing exclusively on case law in this important field. The article is worth a close read for these reasons, among others.



  1. Peter J. Henning, “How G.M.’s Lawyers Failed in Their Duties,” New York Times (Jun. 9, 2014), available at http://dealbook.nytimes.com/2014/06/09/how-g-m-s-lawyers-failed-in-their-duties/. []
Cite as: Carole Silver, Introducing a Dose of Reality:  Broadening the Perspective of Legal Ethics to Include Social Science Research, JOTWELL (August 1, 2014) (reviewing Andrew M. Perlman, A Behavioral Theory of Legal Ethics, 90 Ind. L.J. (forthcoming 2014), available at SSRN), http://legalpro.jotwell.com/introducing-a-dose-of-reality-broadening-the-perspective-of-legal-ethics-to-include-social-science-research/.
 
 

Forewarned is Forearmed: Anticipating Big Changes for the Legal Profession

I don’t know about you, but I am sucker for technology and “Big Data” stories. I was glued in front of my television when IBM’s Watson took on Jeopardy’s reigning champion Ken Jennings–and won.  I am interested in the work of scholars such as Dan Katz and initiatives such as ReInvent Law™ and LawWithoutWalls.™  When NPR and the New York Times ran stories about how technology may do a better job than lawyers for certain tasks such as e-discovery, I emailed those stories to friends and colleagues. My ears perk up when I read about the coming “disruption” to the legal profession. I often recommend to others Richard Susskind’s book entitled The End of Lawyers? about the impact of technology on legal services.

Regardless of whether you share my fascination for these kinds of topics, I encourage you to read the article entitled The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services which Professors John McGinnis and Russ Pearce contributed to the Fordham Colloquium on The Legal Profession’s Monopoly on the Practice of Law. In my view, regardless of one’s field of expertise, everyone should read this article and begin to reflect on this phenomenon that will revolutionize the practice of law, and dramatically change all of our lives.

This article begins by describing the rise of machine intelligence. It provides details that may be as new to other readers as they were to me. For example, IBM has created a division around Watson, has invested $1 billion in its development, and is using its program to aid in medical diagnosis. The authors explain that in a “recent competition on how to make use of Watson, the winning entry centered on the legal field, using Watson to search for relevant evidence in data and predict how helpful the evidence will be to winning the case.”

After noting acceleration in the development of machine intelligence, the article identifies five areas of legal practice that will change dramatically in the near future as a result of machine intelligence:  (1) discovery; (2) legal search; (3) document generation; (4) brief and memoranda generation; and (5) prediction of case outcomes. The section on discovery, for example, focuses on the role of predictive coding in large scale litigation, which has already been used in some antitrust cases with the U.S. Department of Justice’s approval.

The section on legal search explains not only that machines will soon have the capability to search all legal precedents, but also notes the expanding role of semantic search, the increased ability of machines to make “judgments” about the strength of precedents, and their future ability to identify the issues implicated by a given set of facts. It predicts that machine intelligence will replace the legal search function of lawyers.

Concerning document generation, the article suggests that as machine intelligence grows, computer-generated forms will have an even broader scope in legal practice. The authors predict that within ten to fifteen years, computer-based services will routinely generate the first draft of most transactional documents. The authors cite the example of a law firm based in Silicon Valley that has developed a program that automatically creates the documents for incorporating startups. This program has significant reduced costs by reducing the billable time from an average of 20-40 hours to a handful of hours: “In cases with even extensive documents, we can cut the time of document creation from days and weeks to hours.”

The article predicts that although briefs and memorandum are more difficult than forms, in the future, machines will become more and more adept at generating useful first drafts. This section discusses the current ability of machine intelligence to generate news stories based on data and the likelihood that there will be continued improvement in this area.

This fifth development the article discusses is predictive analytics, which is a new discipline that combines data with analysis to make predictions. The article notes that using big data to guide decisions is one of the most important trends of the last decade and that it has now come to the field of law. Professor Pearce and McGinnis’ article provides several examples of the use of legal analytics. These examples include Lex Machina, which has gathered data from thousands of patent litigation cases and is being used to predict outcomes in that field. They also cite the 2002 Supreme Court Forecasting Project, in which a model of Supreme Court decision-making, which was based on previous Court decisions, more correctly predicted outcomes than a set of Supreme Court experts.

The concluding sections of the first part of the article are entitled “Future Trends” and “Answers to Common Objections.” The authors predict that because machine intelligence will permit clients to better compare price and performance, lawyers may lose market power to non-lawyers who provide what traditionally might have been thought of as “legal services.” The authors note, however, that “super-stars” may earn even greater returns than previously because data will make it easier to determine who is a superstar and because these superstar lawyers may use technology to deliver innovative solutions to problems faster and to a broader range of clients. The “answers” section anticipates criticisms about the predictive value of big data and about the degree to which machine intelligence will be able to replace human judgment. Anticipating those who might argue that the legal profession has always adapted to technological change (e.g., from carbon paper→copiers  or from pens→typewriters→computers), the authors respond that machine intelligence is a different kind of technological change than previous technological changes because it substitutes technology for core legal skills and because the rate of change is faster than previously.

Having addressed the nature of the changes in the first part of the article, the second part asks whether regulatory barriers are sufficient to prevent machine intelligence from undermining lawyers’ traditional monopoly. It concludes that these regulatory barriers will not hold back the advance of machine intelligence. The authors find significant the degree to which U.S. consumers and businesses already are “voting with their feet”  by selecting individuals or services other than lawyers to provide what traditionally was regarded as legal services. They also observe that the legal service market has become de facto deregulated with regard to machine intelligence and that increased enforcement of unauthorized practice of law is unlikely to stem the delivery of legal services through machine intelligence. Among other things, the authors point out the degree to which the legal profession already has accepted machine intelligence as an “input” and changed the regulatory rules to accommodate this input, citing the recent amendments to the comments of ABA Model Rule of Professional Conduct 1.1 – Competence. The article disagrees with commentators such as Larry Ribstein, Gillian Hadfield, Ray Campbell and Bill Henderson to the extent those commentators have argued that unauthorized practice of law or UPL provisions will hinder the application of machine intelligence to legal services.

The third and final section of the article discusses why opposition to machine intelligence delivery persists. The article asserts – quite boldly – that the exponential development of machine intelligence in legal services is inevitable and that the application of machine intelligence to legal services will result in better quality legal services at a lower cost. It posits that opposition to machine intelligence comes from fear of machine intelligence or fear of the implications for lawyers’ monopoly. The article describes the first “fear” as lack of trust regarding the competence of machine intelligence or concerns about the inability of the legal profession’s competence to evaluate machine intelligence. As to the second, the legal profession’s monopoly is implicated because if you accept the article’s starting premises, which are listed above, then the rise of machine intelligence might lead the public to believe that the current monopoly is unnecessary as a matter of “expertise” and that it impedes rather than promotes the public good because it hinders a broader more cost-effective distribution of the competent legal services.

In my view, the third section of The Great Disruption would have been stronger if it had addressed more directly the competing visions of machine intelligence. For example, it might have been helpful if this section had labelled some of the potential reactions as “skepticism” rather than “fear.” While I agree with the authors regarding the likely future abilities of machine intelligence, I know that others are more skeptical about whether machine intelligence can deliver what has been promised. Some may believe that lawyers are fundamentally more suited than machines to provide the customization that distinguishes legal services and legal advice from legal information. Labelling these reactions as “skepticism” rather than “fear” might have promoted greater dialogue about the nature of legal services and the capabilities of machine intelligence.

The third section of the article would also have been stronger if it had addressed the perspectives of those who think that machine intelligence might turn out to have results that are less beneficial than the rosy picture described by the authors. For example, this section might have referred to concerns about the lack of transparency and accountability that can occur when the values and assumptions that underlie machine intelligence algorithms are not clear or concerns that machine intelligence algorithms may be “gamed” by those with the most experience or power. These types of issues have been discussed in the context of online dispute resolution. In defense of the article, however, while an expanded discussion of these kinds of issues would have been useful, the article was subject to strict word limits and it clearly has laid the groundwork for ongoing dialogue.

In sum, not all readers will agree with the article’s concluding sentence, which states: “Ultimately, therefore, the disruptive effect of machine intelligence will trigger the end of lawyers’ monopoly and provide a benefit to society and clients as legal services become more transparent and affordable to consumers, and access to justice thereby becomes more widely available.” All readers should agree, however, that this is a thought-provoking article that deserves serious study. The implications of the developments the authors discuss are profound.  While I am agnostic about whether machine intelligence ultimately will be deployed in a way that helps the public or whether it has the potential to be harmful, I am not agnostic with respect to the significance of these developments. Professors McGinnis and Pearce have convinced me that dramatic changes inevitably will occur in the very near future. In my view, it would be a colossal mistake if lawyers – and those who teach aspiring lawyers – ignore the issues implicated by Professor McGinnis and Pearce’s article.

Cite as: Laurel Terry, Forewarned is Forearmed: Anticipating Big Changes for the Legal Profession, JOTWELL (July 7, 2014) (reviewing John O. McGinnis & Russell G. Pearce, The Great Disruption: How Machine Intelligence Will Transform the Role of Lawyers in the Delivery of Legal Services, 82 Fordham L. Rev. 3041 (2014)), http://legalpro.jotwell.com/forewarned-is-forearmed-anticipating-big-changes-for-the-legal-profession/.