Elizabeth Chambliss, Evidence-Based Lawyer Regulation
, 97 Wash. U. L. Rev.
297 (2019), available at SSRN.
What should a modern legal service regulator look like? In some jurisdictions, like England and Wales, this question has resulted in dramatic reforms, such as taking the power of self-regulation away from lawyers. In contrast, much of the regulatory change in North America has involved relatively low-hanging fruit. Some new duties have been incorporated into codes of conducts, some economic restrictions have been lifted, and certain processes have been professionalized. There hasn’t been, however, any radical change.
For many years, the North American legal profession has defended this regulatory stasis with relatively simple appeals to broad concepts such as the “independence of the bar,” “the public interest,” and “professionalism.” In her recent article, Evidence-Based Lawyer Regulation, Elizabeth Chambliss argues that this approach is no longer sustainable and that “the profession’s authority over the regulation of legal services increasingly will require a commitment to evidence-based regulation.” In other words, if the legal profession wants to introduce—or even maintain—regulatory policies, it must offer convincing empirical data in support of such policies rather than simply lean on well-worn rhetoric.
In making her case, Chambliss points to two events that have created pressure for evidence-based lawyer regulation in the United States: (1) the 2015 decision of the Supreme Court in North Carolina Board of Dental Examiners v. Federal Trade Commission, and (2) the American Bar Association’s (ABA) 2016 adoption of Model Regulatory Objectives for the Delivery of Legal Services.
The N.C. Dental case did not directly involve lawyers or bar authorities; it was a dispute over whether non-dentists could perform teeth whitening. Nonetheless, N.C. Dental’s potential impact on the regulation of legal services was clear from the get-go, given the case’s engagement with how the state-action immunity doctrine applies to a professional regulator facing an antitrust challenge. In N.C. Dental, the Court held, inter alia, that state dental board, although statutorily defined as an “agency of the state,” was not entitled to state-action immunity due to the fact that the board was controlled by active market participants and did not receive adequate supervision. Chambliss notes that, following N.C. Dental, bar committees will have to demonstrate that their regulatory activities are subject to “active supervision” by the state (i.e. state supreme courts). She further observes that “most commentators read N.C. Dental as tightening the standard for ‘active supervision’ and signaling the need to produce a record of substantive, evidence-based review.” At the end of this section of the article, Chambliss concludes:
[N.C. Dental] is likely to reopen questions about the basis and scope of state courts’ inherent powers to regulate the practice of law. From a political standpoint, the organized profession should aim to get ahead of these questions, by making a credible commitment to evidence-based regulation.
The ABA’s 2016 adoption of Model Regulatory Objectives also, in Chambliss’s view, “represents an effort to raise the standard of judicial review of professional self-regulation.” She notes that “[r]egulatory objectives, by their very nature, create a framework for empirical assessment” and that “by urging state supreme courts to be guided by regulatory objectives, the ABA is effectively urging courts to be guided by evidence; that is, by empirical review.”
In short, Chambliss identifies the N.C. Dental decision and the ABA’s adoption of Model Regulatory Objectives as two events that, together, have created a tipping point for American lawyer self-regulation and ushered in a new era where the old, largely rhetorical, defences of the bar’s monopoly will no longer suffice. Chambliss is careful to contextualize these two events within a broader background of mounting “economic and political incentives to invest in evidence-based policy-making.” Such incentives, she argues, stem from the growing successes of some alternative legal services providers and an “increasingly organized political challenge” from groups concerned with access to justice.
It is within this milieu that Chambliss presents her call to action: “The bar, collectively,…[needs to] signal a normative commitment to evidence-based policy-making and build the profession’s capacity to contribute to relevant research.” On the latter point, the article provides a helpful summary of existing independent empirical research that has challenged the premises of the bar’s historic defenses regarding the need for a lawyer monopoly over the delivery of legal services. The article then ends by providing specific strategies that can be used to institutionalize evidence-based self-regulation. Chambliss considers, in turn, possible approaches for state supreme courts, law schools, and bar associations. The strategies presented are diverse, ranging from proposed changes to the professional responsibility curriculum in law schools to ABA investment “in the development of a proactive research agenda guided by professional regulatory objectives.”
In recording a precise moment in the history of the regulation of the American legal profession and proposing steps forward, Chambliss contributes to both legal profession scholarship and to those charged with the practical job of regulating the American legal profession. For readers outside the United States, this article offers an accessible primer on the challenges that the American legal profession is currently facing in retaining its ability to self-regulate and its options going forward.
The case set out in the article does raises some additional questions that would be interesting for Chambliss or others to explore in future work. What, for example, are we looking at evidence for? It is helpful to have regulatory objectives, such as the protection of the public interest, but the boundaries and meanings of these objectives are not always self-evident.
Lively and sometimes ferocious debates have recently erupted in Canada regarding the meaning of, and obligations that flow from, law society mandates to govern in the public interest. Different perspectives on public interest mandates were a significant part of the public debate and judicial analysis on the question of whether Canadian law societies should accredit what was described in a national newspaper as the country’s first “gay free” law school, due to a required pledge which includes abstention from “sexual intimacy that violates the sacredness of marriage between a man and a woman” (for more on this case, see here). Divergent perspectives on what the public interest requires were also front and centre in recent debates over whether the Law Society of Ontario should proceed with an initiative requiring the province’s lawyers and paralegals to create and abide by an individual statement of principles that acknowledges their obligation to promote equality, diversity, and inclusion (for more see, here).
Requiring evidence for lawyer regulation is a good idea but doesn’t remove more fundamental questions about what, exactly, a modern regulator of lawyers should be doing or even more pragmatic questions of what evidence is meaningful in any given situation. On the latter point, I note that Professor Laurel Terry has observed that, as we begin to think of legal services being provided by legal service providers as opposed to simply lawyers, “it [is] much more likely that lawyer regulations will be the subject of benchmarking not only across national borders, but across professions.”
In writing Evidence-Based Lawyer Regulation, Chambliss challenges the American legal profession to create and support modern, sophisticated lawyer regulators. If the fundamental structure of the current self-regulatory system is to continue, this challenge must be taken up whole-heartedly. Embracing evidence-based regulation is a first essential step, but it is only the beginning of what will surely be an interesting yet sometimes tumultuous journey.
Richard Abel is the most prolific, as well as the most eminent, scholar of legal professions. Among many other books, he has written a detailed and moving study of the handful of courageous South African lawyers who challenged the apartheid regime. He has unearthed documents from lawyer disciplinary proceedings to uncover new lessons about lawyer deviance. And he has now completed two massive volumes on the Bush and Obama Administration’s anti-terrorism policies in the wake of the 9/11 attacks, the legal means employed to carry them out, and the legal responses to them. Law’s Wars deals with detention of suspected terrorists at the Iraqi prison of Abu Ghraib and at Guantanamo Bay, interrogation, electronic surveillance, and law of war on the battlefields of Iraq and Afghanistan. Law’s Trials covers many of the legal proceedings resulting from counter-terrorist measures: criminal prosecutions in ordinary courts, military commissions, and courts-martial (of U.S. personnel), and the various legal challenges to all of the above, such as habeas corpus petitions, civil damages actions, and civil liberties complaints.
The books are intended to be comprehensive, and they are. The genre that they most resemble is that of reports of Truth Commissions established after mass atrocities to give a meticulous account of events, perpetrators, and victims, to ensure that a record is made and that collective memory of events is preserved as an instruction and warning to later generations. See, e.g., Report of the Chilean National Commission on Truth and Reconciliation. Those reports, however, are typically the product of multi-member bodies employing large research staffs. Rick Abel is just one tireless, persistent Recording Angel. His chapters relate every relevant incident—in every relevant detail—of the events he covers, including not only records of proceedings and official reports, but contemporary comments by administration officials, politicians, leading newspapers, academics, and NGOs. His prose is undramatic yet sharp and crisp; the sentences as lucid as pebbles dropped into a clear mountain stream. For the most part, he adopts the role of objective reporter, but in concluding sections to every chapter, he discloses his own analysis and his own judgments.
Those judgments are, mostly, severely critical of the conduct of the “War on Terror,” especially of the Bush Administration’s policies and legal arguments, but to some extent, of the Obama Administration’s as well. Abel divides officials and judges into two camps. One is the camp of the “executive-minded.” These are the authoritarians inclined to promote or defer to assertions, however improbable, that suspected terrorists might be dangerous; to license coercive interrogation, intrusive surveillance, and “kinetic” military action; and to emphasize the risks of requiring proof before action. The other camp is of “liberal legalists,” concerned with due process, fair and humane treatment of suspected terrorists, dangerous blowback from injury to foreign civilians, and perceptions of world opinion.
Abel presents both sets of views fairly but leaves no doubt that he sides with the liberal “rule of law” parties. The authoritarian tough guys, over and over, damaged America’s reputation without gaining much in the way of results. After the 9/11 attacks, the U.S. government rounded up thousands of innocent Muslims, jailed them for months, mistreated them, and then released them. Military operations in Iraq and Afghanistan killed thousands and exiled millions, while creating new terrorist enemies such as ISIS. The Senate Select Committee on Intelligence, after a mammoth multi-year investigation, concluded that “enhanced interrogation techniques” (torture) used on prisoners yielded little information of value. The military prisons at Abu Ghraib and Guantanamo Bay incited the condemnation of the world for little positive gain: nearly all the prisoners at Guantanamo, said to be the “worst of the worst,” too dangerous to hold even in supermax prisons on the mainland U.S., were eventually released, while congressional Republicans still refuse to close the facility holding the few who remain. The tough guys insisted that suspected terrorists be tried by military commissions, fearing that civilian courts with their due process protections would acquit them. In fact, regular courts efficiently convicted over 660 defendants for terrorism-related offenses, while military commissions have, since their inception, been a complete shamble of carelessly improvised procedures and have achieved only eight convictions, all but one of which was reversed. Rendition of suspects, some demonstrably innocent, to CIA “black sites” or foreign torture chambers has repeatedly embarrassed allied and other governments who cooperated with the United States.
Just as troubling as the mistakes and misdeeds of the authoritarians is the failure of institutions to hold any of them accountable. The chief strategists of the administration that caused most of the damage to the rule of law—President Bush, Vice President Cheney, Chief Deputy Addington, Defense Secretary Rumsfeld, Secretary of State Rice—still defend their actions and policies. Jay Bybee and John Yoo, authors of the famous “torture memos” and other Office of Legal Counsel opinions, succeeded in immunizing CIA interrogators from criminal liability. Although the two were briefly censured by the Justice Department’s Office of Professional Responsibility for slipshod legal work, even that censure was mostly lifted after review. Now, one is a federal judge, while the other is a law professor at Berkeley.
The Obama Administration, notoriously, chose to “look forward and not back.” It declined to assign blame, though it changed many of the policies and tried to close Guantanamo. Its special prosecutor, John Durham, declined to charge CIA officers in whose custody suspects actually died. The most exhaustive investigation of torture, the Select Senate Committee report, was spied upon and attempted to be sabotaged by the CIA as it was being written; it remains unpublished to this day. The most critical report on Abu Ghraib was suppressed before being leaked, and its author, General Antonio Taguba, was forced into an early retirement. Military contractors largely escaped justice for killing civilians in Iraq. The U.S. Supreme Court’s decision, Boumediene v. Bush, said Guantanamo prisoners were entitled to habeas corpus review. But Republican judges on the D.C. circuit have gutted Boumediene by reversing all decisions to grant habeas. With rare exceptions, civil damage suits by innocent victims failed to advance in court, stonewalled by government claims of state secrets. A few low-ranking soldiers were tried for abusing Iraqi prisoners or civilians, but their superiors escaped liability.
Abel chronicles this dismal litany of mostly unrectified abuses with a singularly dispassionate lucidity and objectivity. Among his most effective chapters in Law’s Wars is one on repeated civilian casualties inflicted by military operations in Afghanistan. As one innocent family after another is wiped out, the U.S. military first denies wrongdoing, then concedes, apologizes, and offers modest compensation. Abel relentlessly recites the story of every single case. The cumulative effects on the reader is one of numbing horror.
There are some bright spots in this grim history: lawyers who performed better. Federal judges who tried terror suspects mostly did so fairly (though many of the prosecutions were of hapless mopes who could never have done any real harm without the encouragement of FBI undercover agents). Bar associations mostly spoke out for due process and the rule of law. Volunteer lawyers represented Guantanamo detainees, some while facing fierce criticism. Military lawyers, in particular, pressed for adherence to Geneva Convention treatment even of detainees labeled “enemy combatants”—some at considerable cost to their careers. NGOs like Human Right Watch, the ACLU, and Amnesty International supplied many lawyers to challenge administration policies.
For extensive analysis and critique of the legal doctrines used to prosecute the “War on Terror,” there are, as Abel says, better sources than this. But as a comprehensive record of the legal achievements and failings of this “war,” Abel’s two huge volumes are unlikely to ever be surpassed. In this record, if we want to use it, are the lessons to be learned from this history of excesses, follies, and valiant attempts to safeguard the rule of law.
Cite as: Robert Gordon, Lawfare in the “War on Terror”
(November 12, 2019) (reviewing
Richard L. Abel, Law’s Wars: The Fate of the Rule of Law in the US “War on Terror”
Richard L. Abel, Law’s Trials: The Performance of Legal Institutions in the US “War on Terror”
The new Global 100 law firm ranking is out, and it reports that Big Law is thriving. Despite challenges and change experienced by elite law firms, there is a continuing—indeed growing—appetite for the work of Big Law’s global actors. For example, gross revenue for the firms on the list grew by more than 8% in 2018, “a step up from 2017’s already robust 6.7% growth and a showing that dwarfs the 2.8% and 3.1% growth from the two preceding years. These firms brought in a collective $114.2 billion, more than the 2018 gross domestic product of Ecuador, the 60th largest economy in the world.” And despite the turbulence over the last decade in the market for legal services in which Big Law participates, these law firms have deepened their footprint internationally: the firms on the Global 100 list have added nearly 200 additional offices outside of the U.S. and more than 6,600 lawyers during the decade ending in 2019.
But what does it mean to be a global “firm” for purposes of the Global 100? Most law firms on the Global 100 reflect an organizational structure that uses offices as the connective tissue of the firm, but the notion of a law firm as a coherent organization glosses over important differences that suggest the rankings of firms are as much about pretense as reality. Jing Li takes on this topic in a new article, All roads lead to Rome: Internationalization strategies of Chinese law firms, where she analyzed the websites of 123 China-based law firms in order to assess how their internationalization strategies compare to the expectation of the one-firm-integrated-office model.
Li explores several internationalization strategies. First, addressing offices based on their development and relationship to the firm as a whole, she uses the notion of an “organic expansion” as the ideal-type for global law firms. “Organic” here refers to growth stemming from an expansion of the original law firm through incremental hiring, rather than growth from associating with or acquiring existing law firms in another location, which Li describes as “associated” or “merged.” (P. 163.) Li found that associated or merged strategies were common for the international offices of China-based firms with more regional than national reputations (what she describes as “second-tier law firms”), despite them marketing themselves as “organic.” (P. 175.)
Yet, even for those law firms that follow a seemingly traditional expansion model, Li shows that the reality is more complicated; for example, she explores how the number of lawyers in an “office” reflects the office’s viability. She finds that many offices, particularly those of second-tier law firms, “are generally still very thinly staffed, and one-partner offices are a rule rather than exception. As such, internationalization often carries symbolic value and works as ‘cosmetics’ for these periphery firms to enhance their professional image in front of the clients.” (P. 175.) Indeed, it is not simply periphery firms that exhibit this divergence; Rachel Stern and Su Li’s work on international law firms’ China offices reveals a similar phenomenon.
Finally, Li explores relationships that fall outside of the office model; these include formal and informal networks and alliances that reflect looser connections compared to a traditional, formal law firm organizational structure. These sorts of relationships were a common globalization approach for the firms in her sample. (P. 170.) She describes a “decoupling of formal structure and actual practice…[that] allows [the firms] to effectively operate on a referral-based networks and still appear competitive relative to their peers.” (Pp. 173-74.)
In scrutinizing the office unit as the mechanism for global expansion, Li highlights the nuance that is lost when these particulars are conflated to align with the ranking’s criteria. She reminds us that national influences and the histories that shape and frame organizations are central to understanding them, and that the importance of being perceived as an integrated firm—reflecting the ranking criteria—influences the way firms describe themselves and their relationships. In the search for a way to simplify the complexity inherent in organizational structure and operation, the risk is that firms react to the ranking itself in their presentation and strategic decisions. Li finds that the approaches of the firms she studies reflect the financial constraints and the particular focus of the organizational clients they intend to pursue. (P. 157.) In these ways, the firms simultaneously respond to the forces of rankings, prestige, and pragmatism. Chinese law firms’ reactions to the rankings has broader implications, too. Notably and provocatively, it is an example of the reactivity that Wendy Nelson Espeland and Michael Sauder described in the law school context, as, in Espeland’s and Sauder’s telling, the ranking criteria affected schools’ decisions and management. It “determine[s] who counts and who does not, who is noticed and for what.” Li’s contribution counters the lure of simple, quantifiable comparison that is the temptation of a global ranking.
Law school graduation is a critical turning point in the early career of legal professionals. Going to the public sector or to private practice marks two distinct career tracks, in both common law and civil law jurisdictions. However, research on legal education and the legal profession usually focuses on either a lawyer’s law school experience or her legal career after graduation, with little effort to capture this key moment of transition. Even recent studies aimed at bridging the gap, such as the American Bar Foundation’s After the JD study or John Bliss’s research on the professional identity of law students, have not yet analyzed law students’ professional or political orientations at that crucial moment, right before their graduation.
Kathryn Hendley’s new article on Russian law graduates helps fill in this gap. Based on a 2016 survey of 2,176 prospective graduates from 163 law departments or faculties across the vast territories of Russia, Hendley shows that law students who plan to go to state service and private practice markedly differ in terms of their support of state policies, attitudes toward courts and lawyers, as well as opinions on political cases. This is a remarkable study, especially considering the difficulty in obtaining empirical data in authoritarian regimes like Russia. It suggests that lawyers’ professional identities, political orientations, and career choices have deep roots in their educational years. In other words, early career choices and professional/political values go hand in hand. Those law students who are more supportive of the regime and the courts are more likely to go into public service. By contrast, law students who choose to start their legal careers in private practice, such as law firms and in-house legal departments, often are more skeptical about the state as well as the moral standards of lawyers.
One rarely studied group of law students that Hendley’s survey successfully captured are the so-called “correspondence students,” i.e., those students who study law part-time. Correspondence students are generally older; they tend to come from less privileged family backgrounds; and they often combine their studies with a full-time job. To be sure, part-time legal education widely exists in the United States and many other countries, yet this group of law students has received little scholarly attention so far. As Hendley’s analysis suggests, although full-time law students and correspondence students are quite different in their socioeconomic backgrounds, when it comes to their attitudes toward law and the judicial system, the two groups show notable convergence. Yet there is a sharp difference between law students and the general Russian population on those attitudes. Very few law students displayed the “legal nihilism” omnipotent among ordinary citizens in Russia.
In terms of career aspirations, correspondence students have stronger preferences for the state sector, as compared to their full-time counterparts, though, for both groups, more than half of the survey respondents expressed aspirations for state-sector jobs, such as prosecutors, judges, and criminal investigators. Not surprisingly, law students from Moscow or St. Petersburg, the two largest cities in Russia, are significantly more likely to aspire to a career in private practice than students from other regions, as the private sector is more developed in metropolitan areas. Among private-sector jobs, corporate lawyer is not a choice as popular as advocate (advokat) or in-house counsel for both groups of students. A plausible reason is that the corporate legal sector in Russia is much smaller than that sector in Britain or the United States and not many law graduates would find employment in it. Furthermore, the percentages of law students who were “unsure of career plans” or had “no plans to work as a lawyer” are notably higher for correspondence students than for full-time students.
In addition to the variations between full-time and correspondence students, another striking finding of this study is about law students’ political orientations. In particular, law students who have stronger beliefs in democratic principles, who regard lawyers as having high moral standards, and who see social change as a primary motivation to study law are significantly more likely to desire to work in private practice after graduation than other students. This finding suggests the possibility that, even in authoritarian regimes, liberal and democratic ideals still drive law students’ career choices and their relations to the state. As Terence C. Halliday and I have shown in our study of Chinese criminal defense lawyers, there is often an inverse relationship between lawyers’ political liberalism and political embeddedness, that is, those lawyers who have stronger connections to the state are less likely to be politically liberal or to challenge state power. What the Russian case shows is that this differentiation between politically liberal and politically embedded lawyers starts as early as in law schools—politically liberal law students are more drawn toward private practice and less likely to begin their careers in the state sector. In contrast, those law students who aspire a career in the state sector, especially the criminal justice system, are already less liberal in law schools. Or, in Hendley’s words, “rather than learning to be prostate on the job, they come to state service with strong prostate sympathies.” (P. 163.) This orientation can be clearly observed from their more supportive attitudes toward the guilty verdicts of political cases such as the trials of the rock band, Pussy Riot, and the activist lawyer, Aleksei Naval’nyi.
The implications of Hendley’s rigorous and groundbreaking study are profound, for not only the legal profession in Russia, but also lawyers in other legal jurisdictions or political regimes. It shows the importance of the state in structuring, not only the bar, but also the system of legal education, especially in authoritarian contexts. In contrast to Heinz and Laumann’s classic “two hemispheres” of the Chicago bar, which distinguished lawyers based on client types, in many authoritarian regimes, the state overshadows clients as the key external force that shapes the social structure of the legal profession. Furthermore, the study also suggests that professional socialization in law schools not only leads to different career paths for law students, but also contributes to their distinct political orientations. Most civil law countries have multiple legal professions with various degrees of proximity to the state (judges, prosecutors, advocates, in-house counsel, etc.), and law students are socialized into these professional roles partially according to their political beliefs. This political dimension of professional socialization is often overlooked in existing studies of legal education. Whether it is nature or nurture remains an intriguing question for future research.
All lawyers in private practice must recognize the possibility of opening a summons and seeing their names listed as defendants. Many private practitioners are more concerned about malpractice than professional discipline. The Preface to the Restatement of Law Governing Lawyers captures the regulatory role of malpractice in stating that “the remedy of malpractice liability and the remedy of disqualification are practically of greater importance in most law practice than the risk of disciplinary proceedings.”
Despite the important role that malpractice plays in influencing lawyer conduct, only a small number of empirical scholars have studied legal malpractice claims. That is one reason why we should welcome the recent book by Herbert M. Kritzer and Neil Vidmar, When Lawyers Screw Up: Improving Access to Justice for Legal Malpractice Victims. As suggested by the book title, the book persuasively makes the case for change because a large percentage of victims are deprived of a meaningful remedy in pursuing legal malpractice claims.
In the introduction, Professors Kritzer and Vidmar note that the book’s purpose is to provide a portrait of legal malpractice claims. Unlike other studies conducted by bar groups and insurers, the book goes beyond providing statistical tabulations related to types of claims. The authors use different empirical methods and data sets to systematically analyze what gives rise to claims, how claims are handled, and the nature of claims. They also provide background information on the legal bases of claims and professional liability insurance. Their discussion provides context for lawyers, as well as lay people unfamiliar with the anatomy of a legal malpractice case, the role that malpractice insurers play, and the profile of the defense and plaintiffs’ bars.
Throughout the book, the authors use data and other information to demonstrate that lawyers’ professional liability is not a “unitary phenomena.” (P. 4.) Rather, they assert that there are two distinct worlds: “one involving claims in the context of legal services for individuals and family businesses and one for claims arising from work on behalf of large corporate entities.” (P. 4.) This analytical framework builds on the “two hemispheres” construct used by John P. Heinz and Edward Laumann in their Chicago Lawyers study to describe the two segments of legal practitioners. One hemisphere serves primarily the corporate sector and the other primarily serves the personal services sector. Understanding the differences in the two hemispheres helps explain the different outcomes related to whether and how a malpractice claim will be brought and handled.
Most notably, the distinct differences in the two hemispheres are apparent when considering the likelihood that an injured person will be able to pursue a legal malpractice claim. Injured clients from the corporate sector are probably represented by lawyers who carry malpractice insurance (P. 5.) By contrast, lawyers serving the personal services sector are more likely to be uninsured. This lack of insurance will affect the ability of an injured person to retain counsel willing to handle a legal malpractice case on a contingency fee basis.
Although lawyers who take claims on a contingency fee basis routinely screen claims carefully, such screening is particularly important for legal malpractice cases because of the cost of pursuing professional liability cases and the risk that defendant-lawyers do not carry professional liability insurance. Relying on qualitative and quantitative data, Professors Kritzer and Vidmar discuss how the size of the claim and the insurance status of the tortfeasor-lawyer affect whether a client will be able to find counsel willing to handle the malpractice matter. Specifically, in interviews with attorneys who handle plaintiffs’ work, the authors learned that the amount of the potential damages was an important criterion in plaintiffs’ lawyers deciding to accept representation on a contingent-fee basis. Most attorneys reported requiring a threshold amount ranging from a low of $100,000 to a high of $5 million. (P. 147.) That means that many victims will likely not be able to retain experienced counsel unless the amount of damages is large enough to convince a plaintiffs’ lawyer that it is feasible to agree to a contingency fee.
Assuming that the amount of damages would support a knowledgeable plaintiffs’ attorney handling a matter on a contingency fee basis, a second hurdle in retaining a lawyer relates to insurance and the prospect of recovery. Because states, other than Oregon and Idaho, do not require that lawyers carry a minimum level of professional liability insurance, there is a significant risk that the tortfeasor will be uninsured. Although no national numbers are available, state-level information reveals that a significant percentage of lawyers practice without insurance. The percentage ranges from 6% in South Dakota (a state requiring that lawyers directly disclose to clients that the lawyer is uninsured) to 36% in Texas. (P. 41.) The likelihood of being represented by an uninsured lawyer is considerably higher for consumers who hire solo attorneys because uninsured lawyers are predominately in solo practice. For example, a state bar survey in Texas revealed that 63% of solo lawyers are uninsured. This suggests that those clients in the personal services sector who are infrequent users of legal services may be the most vulnerable to being exposed to uninsured lawyers. Although the harm to these clients may not be quantifiable, the qualitative data from Professors Kritzer and Vidmar support the conclusion that these malpractice victims will likely not be able to retain counsel if the wrongdoer is uninsured. This points to the access to justice problem. As stated in Professor Leslie Levin’s book review of When Lawyers Screw Up, “If individuals cannot obtain competent legal representation to pursue their [malpractice] claims, they cannot effectively access the courts. If lawyers are not required to pay for harm they cause clients, justice is also denied.”
To address the access to justice problem, Professors Kritzer and Vidmar identify a number of changes that would help malpractice victims obtain meaningful redress. The first option they suggest is that more U.S. jurisdictions ought to join the vast majority of common law countries that require lawyers to carry a minimum level of liability insurance. For decades, Oregon was the only U.S. jurisdiction to require that lawyers participate in a mandatory insurance scheme. The legal landscape began to change in 2017 when the Idaho Supreme Court adopted a rule requiring that lawyers in private practice carry professional liability insurance coverage with limits of liability of $100,000 per occurrence and $300,000 for annual aggregate of claims. In addition to the move in Idaho, bar groups in other states began studying the issue of mandatory malpractice insurance. In 2019 bar-appointed bodies in California and Washington issued reports making recommendations related to mandatory insurance. Importantly, both reports referred to Professors Kritzer and Vidmar’s work related to how the failure of lawyers to carry insurance affects victims’ ability to hold lawyers accountable.
The reports’ references to the Kritzer and Vidmar findings point to the important role that empirical work can play in informing the debate and decisions related to lawyer regulation, access to justice, and public protection. Moving forward, their work may inspire other researchers to tackle other empirical projects to bridge the disjunction between the legal academy and the legal profession. As Judge Harry T. Edwards urged over two decades ago, “law schools should be producing scholarship that judges, legislatures, and practitioners can use.” When Lawyers Screw Up is precisely the type of “useful” scholarship because it helps us better understand how lawyers err and how, as a profession, we can better provide access to justice to those who lawyers harm.
Over the past fifty years, the study of the legal profession has become a robust and exciting field, featuring rich doctrinal, empirical and theoretical inquiries as well as interdisciplinary insights. The growing body of scholarship includes globe-spanning comparative studies, ranging from the past and present of somewhat similar common law systems (several recent jots have covered fascinating regulatory trends and de-regulation developments in the UK), to more distinct legal professions.
Samuel Levine’s two-volume book, Jewish Law and American Law—A Comparative Study, makes an important contribution to comparative law studies of criminal and constitutional law (volume 1), and analyses of law and narrative, legal history and law and public policy (volume 2). Lawyers, law students, and scholars of the legal profession are likely to be particularly interested in Section Five of volume 1, consisting of five chapters comparing the Jewish and U.S. legal systems. In a concise and enlightening fashion, Professor Levine explores numerous legal profession topics, offering contextual insights and raising ideas for future analysis.
In Chapter 12, Levine examines the practice of law as a religious calling. In a day and age in which many critics, from within and outside of the profession, lament the demise of the practice of law as a calling and its transition into a client-centered business, the author’s analysis of life as a religious calling, work as a religious calling, and the practice of law as a religious calling is timely. Following in the great tradition of Max Weber, Thomas Shaffer, and more recently, Rob Vischer, Levine reflects on the ways in which religious faith and values may guide a contemporary law practice as a calling. Religious and secular readers alike will find stimulating the author’s examination of specific ways in which religious insights may inform practical legal decisions, such as choosing clients and selecting objectives to advocate for, representation of low income clients, vindicating civil rights, and the meaning of serving justice. For example, Levine writes:
[I]n the area of criminal law, the prosecutor may find that the obligation to serve justice is consistent with concepts in Jewish Law and tradition emphasizing the importance of the human role in bringing justice to God’s world. At the same time, however, the criminal defense attorney may embrace the role of counseling, comforting, and guiding those who are in many ways often among the most vulnerable in society, consistent with religious imperatives to assist the needy and the downtrodden.
Chapter 13, titled A Look at American Legal Practice through a Perspective of Jewish Law, Ethics and Tradition, is a must-read for both theorists and practitioners. The former will enjoy revisiting, from a comparative law perspective, one of the fundamental debates underlying the quest for a theory of law practice—whether lawyers should follow a unique role-morality (which is to say, follow a morality and rules of conduct specific to the roles they occupy as lawyers) or whether, instead, lawyers ought to default to common morality. To the extent that Bill Simon’s classic “Standard Conception” of lawyers’ hired-gun role-morality accurately describes contemporary law practice and Steve Pepper’s amoral autonomy-enhancing theory and Brad Wendel’s fidelity to the law account justify lawyers’ adherence to role-morality, it is intriguing to learn from Levine about Jewish law’s rejection of role-morality and its adoption of religious common morality as a foundation for law practice. The latter, often troubled by the proliferation of lawyers’ jokes and their being held in low esteem by society, may learn from the negative attitudes faced historically by Jewish lawyers, the reasons for them, and how to come to terms with—and even improve—their relationship with the public.
Chapter 14, Taking Ethics Codes Seriously, develops a compelling, comparative-critical perspective from which to assess the clear trend in U.S. lawyers’ ethics codes—from the ABA Canon, to the Model Code, and now the Model Rules—of moving away from broad, open-ended aspirational standards to mandatory rules of conduct. In short, Levine joins other critics who argue that the “legalization” of the rules governing the legal profession results in legal “ethics” rules devoid of ethics and calls for the interpreting these rules consistent with broad ethical principles grounded in the Torah or the U.S. Constitution. Chapter 15, in turn, delves into the particular example of prosecutors’ obligation to “seek justice.” Levine criticizes the modern narrow, rule-oriented construction of the duty, pursuant to which decisions such as whether to prosecute, disclosure of exculpatory evidence and the cross-examination of truthful witnesses can and should be made exclusively with reference to specific rules of conduct and controlling case law. Demonstrating his call for a construction of prosecutors’ duty to seek justice as a broad interpretive theory, above and beyond specific rules, Levine shows how broad provisions and principles “provide methodological guidelines for determining the mode of legal analysis appropriate for resolution of…difficult ethical issues,” adding that “[t]he conceptual framework for choosing among conflicting harms in Jewish law may offer a normative analogue for considerations of similar issues, representing some of the most difficult ethical challenges facing the American prosecutor, in the effort to carry out the obligation to seek justice.”
Consider the following example. Should the “mother of the criminal defendant, who has undeniably—and unsuccessfully—committed perjury in an attempt to serve as an alibi witness on behalf of her son” be prosecuted? Levine dismisses as dissatisfactory a narrow approach that might explain a decision not to prosecute the mother on practical grounds, such as limited prosecutorial resources. Instead, he argues, “it may be helpful to evaluate the ethical alternatives available to the prosecutor on the basis of a normative analysis,” grounded in a commitment to justice.
The decision to pursue perjury charges against the defendant’s mother may satisfy the letter of the criminal statute, thus satisfying the prosecutor’s ethical obligation to prosecute and seek the conviction of those who have broken the law. Nonetheless, such a result may not…satisfy principles of [justice. A] decision not to file charges may seem appropriate in light of the apparent lack of substantial moral culpability on the part of the defendant’s mother….Thus, the prosecutor faces an ethical dilemma….At best, the prosecutor can choose to balance competing harms, opting for a method of ethical decision-making that achieves a relative sense of justice, under the circumstances.
Levine’s point, to be sure, is not to suggest that there is a “right” or “wrong” way to resolve particular difficult ethical questions. Rather, he cautions against prosecutors’ assertions of compliance with narrowly construed rules of conduct to deny the existence of difficult moral questions in the exercise of prosecutorial discretion. Instead of hiding difficult ethical questions behind bright-line rules, Levine calls for acknowledging the questions and using higher-level principles and considerations of justice to resolve them.
Section Five ends with a provocative call for adopting board ethical obligations to shape and guide lawyers’ practice, in addition to, and as a framework within which, to interpret particular rules of professional conduct. Some readers may disagree with Professor Levine’s religious sources of ethical content, yet nonetheless commend his commitment to tackling head-on the difficult challenges of construing and debating values, ethics, morality, and justice in a pluralistic society.
Jewish Law and American Law—A Comparative Study eloquently demonstrates the profound value of comparative law, showing how the U.S. legal profession may learn from other legal professions and ways of practicing law.
Why do people go to law school? For a while there, it began to seem like it was all about the money. Large law firm competition for associates in the late 1990s and 2000s—with firms offering six-figure starting salaries and extravagant signing bonuses—helped fuel a ten-year surge in law school enrollment, peaking in 2010-11. The recession changed all that, plunging associate hiring into a free fall and focusing sustained, critical attention on law school marketing, the student loan industry, and the negative return-on-investment for many law graduates. Between 2010-11 and 2017-18, law school enrollment fell 25 percent, to its lowest point in forty years. Several law schools failed and numerous others have been exposed for gaming the U.S. News rankings—or outright cheating—in efforts to pad their profiles in a hyper-competitive market. (Sound familiar, celebrity parents?)
But “law school is cool again,” according to the most recent numbers. Applications in 2018-19 were up nearly 11 percent. And while associate hiring also is up, at least part of the increase in law school applications appears to be a political response to recent assaults on civil rights, lawyer independence, and the rule of law—the so-called “Trump Bump.” This makes it a good time for soul-searching by law schools as well as potential applicants, with an eye toward professional commitments as well as economic returns. Christopher J. Ryan’s forthcoming study of law school choice provides an important and timely starting point.
Ryan asks: what information do students consider when making decisions to enroll in law school? And how do they choose among schools? To answer those questions, Ryan conducted a 2017 online survey of students at four law schools, one from each tier in the U.S. News & World Report rankings: a first-tier private law school; a second-tier public flagship law school; a third-tier public law school; and a fourth-tier private law school. Responding students were offered a chance to win a $50 Amazon gift card and response rates ranged from 34 to 45 percent. (P. 7.) The analysis focuses on the salience of economic factors, such as cost sensitivity and opportunity cost, in students’ law school choices. Ryan writes, “[t]hat many students still choose to pursue legal education despite economic disincentives to do so raises important questions about these students’ motivations.” (P. 2.)
Ryan finds that “the market for law students…[is] heterogenous” and “driven by many other factors” in addition to cost. (P. 34.) Location, for instance, was a salient factor for students at all but the top-tier private law school, with 65 to 77 percent of students choosing schools within 250 miles of where they lived (compared to 17 percent of students at the top-tier private school). (P. 14, Table 2.) Job placement, not surprisingly, was important to students at all four law schools, with local career opportunities especially important to students at the two public schools. (P. 20, Table 4.) Law school reputation, while of “supreme importance” to students at the top-tier private school, was a secondary (or non) factor for students at the other three schools. Financial aid was the primary factor only at the state flagship law school. (P. 19.) These results suggest that different students go to law school for different reasons and that there are “a multiplicity of legal education sub-markets within the broader legal education market.” (P. 15.)
Ryan finds that law school websites play an important role in shaping applicants’ choices and were the most important source of information for students at the third- and fourth-tier schools. U.S. News rankings were the primary information source only for students at the top-tier private school. (P. 23, Table 6.) Ryan also finds evidence that students “come to terms” with their law school choices over time, based on the options available and their cost. (P. 18.) At the time of the survey, more than 80 percent of students ranked their law school as their first choice, though for many students it had not been their first choice before applying to law school. (P. 16, Table 3.) Student price sensitivity also coincides closely with the cost of attendance at their own school. (P. 31.) These findings suggest that law school marketing and socialization play an active role in shaping student perceptions of the cost—and value—of legal education.
Ryan’s findings remind us that law school choices are not driven purely by economics or a single, national ranking. There are multiple markets for legal education, and law schools play an important role in shaping student choices and values. And though Ryan does not address students’ choice of law versus other careers, his study, coupled with the recent upsurge in law school applications, invites renewed attention to questions of vocation and law schools’ efforts to distinguish themselves in vocational (versus economic) terms. The “law school choice” literature before the recession focused on questions of political vocation, particularly the effects of elite school socialization on public interest goals. Scholars recently have begun to return to questions of political vocation in studies of “public interest drift” and the mission of conservative Christian law schools, and soon more law schools may begin to market themselves in political terms.
Meanwhile, U.S. News continues to expand its specialty rankings, enabling law schools to market themselves around specialized areas of practice and training, which likely will lead to increasing vocational differentiation among schools. Ryan’s research invites renewed attention by law schools, applicants, and researchers to the role of professional vocation and vocational fit in law school choice.
Anna Offit, Prosecuting in the Shadow of the Jury
, 133 Nw. U. L. Rev.
_ (forthcoming, 2019), available at SSRN
Scholars often speculate about how prosecutors exercise their vast discretion. Most of these critics make well-founded conclusions based on educated guesses about how prosecutors make the critical decisions that affect the fate of individual defendants and more broadly shape the community and legal system as a whole. In Prosecuting in the Shadow of the Jury, Anna Offit conjures a rare bird—empirical evidence about how prosecutors make discretionary decisions. Her evidence shows that prosecutors frequently make decisions by invoking a hypothetical juror to test arguments and assess the fairness of their proposed actions.
Professor Offit bases her conclusions on 133 interviews with Assistant United States Attorneys over a five year period of time. Her work offers unique insight into the way prosecutors think and reason through their cases. She finds that prosecutors frequently consider the “jury appeal” of witnesses and evidence when they decide whether or not to charge an individual with a crime. By doing so, the prosecutor projects common sense sources of concern onto a hypothetical juror. For example, a slew of questions by confused grand jurors often lead Offit’s interviewees to consider difficulties in proving the case to an actual jury down the line. In assessing their police officer and cooperating witnesses’ credibility, the prosecutors frequently consider whether a juror would believe the witness. In doing so, they absolve themselves of the responsibility of criticizing their own witnesses by projecting their concerns on the imagined juror. Freeing themselves to be aggressive advocates and reasoned critics at the same time, this method ensures that prosecutors consider not only weaknesses in their cases, but also fairness and equity. They look at their cases not only through their own eyes but also through the eyes of a skeptical observer.
In addition, the prosecutors Offit interviewed discuss whether a potential juror would have sympathy for a defendant or the victim. Even at the investigatory stage, potential jurors shape prosecutors’ views about the strength of the developing evidence and the propriety of law enforcement techniques. This supposed reaction of jurors not only shapes the investigatory and charging decisions, but also enters into prosecutors’ plea bargaining discussions. Of course, we should be less sanguine about this method of decision making if the prosecutor projects racial or other cognitive biases onto the imagined juror. If the hypothetical juror expresses such pernicious views, the prosecutor could absolve herself of responsibility by suggesting that she is making a decision not because of her own bias but due to an objective reality—the jurors’ perspective. Prosecutors in Offit’s study do not seem to do this—the imagined jury serves as an ethical check—but it would be interesting to see if this, more corrosive side-effect plays a role in different prosecutors’ offices.
It is now common knowledge that the prevalence of jury trials is a thing of the past. Approximately 95% of state and federal criminal cases resolve in plea bargains. (P. 9.) Many historians and scholars of the criminal justice system have lamented that this important popular restraint on prosecutors’ conduct is nearly gone. Offit’s work suggests the ghost of the jury lives on, reminding prosecutors to be fair and just.
The significance of Offit’s work is not just in offering a corrective to the assumption that the lay influence on prosecutor decision-making has disappeared along with the criminal jury trial, it is also evidence that the duty to do justice remains a motivating ideal for prosecutors. Mercy may be an important purpose of the jury, a component that Professor Rachel Barkow has argued is increasingly banished from our criminal justice system, but as Offit demonstrates, mercy is not gone. It continues to play a role in prosecutors’ decision making. Even when no one is looking over their shoulders, prosecutors imagine that they are. They outsource their conscience to an imagined public to remind them of their duties to be fair and even-handed.
Offit explains that the hypothetical juror serves three purposes. First, on a practical level, this method of decision making helps prosecutors prepare for trial, serving as tool to assess the strengths and weaknesses of a case. Second, this trope enables prosecutors to engage in a more collaborative process, discussing their cases with others while projecting the more divisive or controversial perspective onto a fictional layperson. Finally, the imagined juror proves an “ethical resource” for prosecutors, a justification for a more measured, less aggressive approach to prosecution. The prosecutors’ job, the pursuit of justice, is vague. Some have argued that the dominant, and at times exclusive, consideration is pursuing convictions. But the make-believe jury lends the pursuit of justice an alternate meaning and value. Thus the aggressive prosecutorial bias that many scholars have posited is, or at least can be, modulated through this instinctive reference to future jurors.
Of course, as Offit acknowledges, these hypothetical juries may not be playing the same role as real ones and the lack of transparency in a system that resolves most cases by plea bargain continues to be a problem. Prosecutors themselves may be able to project some generic concerns onto imagined jurors. They may be able to correct their more aggressive urges by imagining a skeptical and merciful jury, but they cannot truly summon a democratically accountable public. Thus, the evolving moral compass of the public enters the system only indirectly and imperfectly now. Even though Offit’s interviews of federal prosecutors do not give cause for concern, in the hands of other prosecutors, this mechanism might reinforce rather than correct prosecutor bias by providing a kind of deniability, a way to distance and absolve themselves of responsibility for racial or ethnic bias. If Offit were to replicate her study in other offices, it would be interesting to see whether this sort of decision making plays a similar role and whether it ever seems to have a corrosive rather than salutary effect.
If jury trials were to disappear entirely, this productive discourse within prosecutors’ offices would likely cease. As a result, her work lends additional weight to calls to reinvigorate the jury. But Offit’s account contradicts the more extreme argument that ideals like the “duty to do justice”are empty promises that potentially do more harm than good. Rather than abandon these aspirations, we need to figure out how to give them more traction, and Professor Offit’s work offers a significant step in that direction.
In July 2018, the State Bar of California authorized the formation of a Task Force on Access Through Innovation of Legal Services. This Task Force has been asked to identify possible regulatory changes to enhance the delivery of, and access to, legal services. It will address three broad topics: 1) the definition of unauthorized practice of law; 2) lawyer marketing, advertising, partnership, and fee-splitting rules; and 3) non-lawyer ownership and investment. The first sentence of the Task Force Fact Sheet states that “Too many Californians needing legal services cannot afford an attorney or don’t have meaningful access.” The second sentence of the Fact Sheet cites a 2018 Legal Market Landscape Report that was commissioned by the State Bar of California and written by Professor Bill Henderson.
Professor Henderson’s 2018 Legal Market Landscape Report is a document that all lawyers should read. It is jam-packed with data, and it provides the grounding for California’s ongoing conversations regarding the proper scope of lawyer regulation. Moreover, much of the information in the Report is not California-specific and thus is of interest to anyone who is concerned about access to legal services and the proper scope of lawyer regulation.
One of the things that I like about Professor Henderson’s work is that I usually encounter sources and perspectives that I am not familiar with. This is true of Professor Henderson’s Legal Market Landscape Report, just as it has been true of other Henderson publications such as his recent article, Innovation Diffusion in the Legal Industry. The first section of the Report is entitled “Size and Composition of the U.S. Legal Market.” In addition to citing U.S. Census Bureau and U.S. Bureau of Labor Statistics data, which has become relatively common, this section includes an interesting discussion of “Lawyers Working in the Gig Economy” and the data sources that one might use to track these developments. There is increasing scholarly interest in the gig economy, and it is useful to have data sources that one can use as a proxy for tracking the increase in “gig lawyers.”
Section 1 of the Report also includes a review of alternative legal service providers. The Report asserts that “it is hard to overstate the tremendous economic and technological ferment of the legal ecosystem growing up within and around the traditional legal services market.” This section describes the services offered by some of these alternative legal services providers and provides links to legal tech maps produced by others. The Report’s descriptions and classifications are useful given the thousands of start-up companies that are active in the “legal services space” (see, e.g., here and here). Figure 4 in this section is a useful graphic entitled “Legal AI Landscape 2018” that has the logos of more than sixty AI companies arranged around an “X” axis that lists eleven different categories of services. Towards the end of this section, Professor Henderson observes that:
As momentum grows, more pressure will be placed on a regulatory framework premised on one-to-one legal services. This raises very difficult questions for regulators, as paradigm shifts are rare events that are difficult to recognize. Rather than amend an ethics framework built for a bygone era, the public interest may be better served by a new regulatory structure that includes traditional lawyering side by side with one-to-many legal services, products and solutions created by a wide range of professionals from multiple disciplines.
The second section of the Report focuses on “Individual versus Organizational Clients.” This section’s introductory paragraph states that there are two legal markets that need to be analyzed separately because they involve different economic drivers that are evolving in very different ways. The first subsection cites the conclusions from the classic 1975 and 1995 Chicago Lawyers studies, which found that lawyers tend to work in one of two “hemispheres,” serving either organizational clients, on the one hand, or individual clients, which Henderson here refers to as “PeopleLaw,” on the other hand. This section explains why Professor Henderson believes that the Chicago Lawyers hemisphere framework is a useful lens for understanding current changes within the legal profession. This section contains data about the economics of large organizational clients and the economics of PeopleLaw, as well as other interesting charts, tables, and information. For example, one figure shows that, between 2007 and 2012, there was a decrease in both the absolute dollar amount and the percentage of total dollars that were spent on legal services for individuals. During the same time period, there was an increase in both the absolute dollar amount and the percentage of total dollars that were spent on legal services for organizational clients. The Report observes that this data “suggests we are in the midst of an irreversible structural shift” and that “it is reasonable to ask whether the public interest would be better served by a regulatory structure that is sensitive to the challenges that exist within these two very different parts of parts of the market.”
The Report’s third section addresses “The Problem of Lagging Legal Productivity” and the impact of “cost disease” on legal education and legal practice and its impact on the courts and access to justice. (Relying on work done by economists, Henderson explains that “cost disease” occurs in situations in which prices tend to go up much faster than worker income due to the lack of productivity gains). He concludes that the legal sector has experienced all three symptoms of “cost disease,” including higher relative cost, shrinking demand, and substitution. The final segment of this section, which is entitled “courts and access to justice,” observes that “Courts are on the front line of the legal sector’s cost disease problem. Yet, as explained below, courts are also partially responsible for cost disease.” After providing examples of some of the ways in which courts increase the cost of legal services, the Report notes that some courts are starting to respond. The Report quotes Richard Susskind who asked, “Is court a service or a place?” and then cites several jurisdictions that have begun to offer or require online dispute resolution.
The final section of the 2018 Legal Market Landscape Report is entitled “Ethics Rules and Market Regulation.” As its name indicates, this section identifies the regulatory architecture that affects the delivery of legal services to individuals (“PeopleLaw”) and to organizational clients. Professor Henderson highlights the impact of these rules on the legal services market:
The key point of this section is that the ethics rules, particularly those pertaining to the prohibition on nonlawyer ownership (Rule 5.4) and the unauthorized practice of law (Rule 5.5), are the primary determinants of how the current legal market is structured. Without these rules, the market would look very different, as private businesses would be free to offer legal-oriented goods and services to both clients and lawyers….[P]rivate investors see ample opportunity in the current legal market. The best way to orient the Trustees to the issues at hand is to describe how the current ethics rules [such as Rules 5.4, 5.5, 7.2, and 7.3] are shaping the U.S. legal market….The ethics rules affect [the organization client sector and the PeopleLaw sector] in different ways.
The reason why this jot is entitled “Back to the Future (Again)” is so that the title can signal the fact that the Legal Market Landscape Report addresses issues similar to those that have been addressed in prior and current initiatives. The ABA Commission on the Future of Legal Services, the ABA Commission on Ethics 20/20, and the proposed but then withdrawn 2019 resolution on Guidelines for Online Document Providers previously addressed related issues. The Association of Professional Responsibility Lawyers “Future of Lawyering” Committee currently is studying issues similar to those that the California Task Force is examining. Moreover, these kinds of discussions are not limited to the United States. Similar issues have been discussed in the International Bar Association President’s Task Force on the Future of Legal Services, International Conference of Legal Regulators conferences (see, e.g.,here, here, and here), the Future of the Legal Profession and Legal Services Committee of the Council of Bars and Law Societies of Europe (CCBE), the 2017 Report on the Future of Law and Innovation in the Profession [the FLIP report] from the Law Society of New South Wales [Australia], Stephen Mayson’s “Independent Review of [UK] Legal Services Regulation, in the Compliance-Based Entity Regulation Task Force of the Law Society of Ontario [Canada], and in initiatives by Canadian regulators in Nova Scotia, British Columbia, and the Prairie Provinces.
These prior initiatives suggest that not everyone who reads Professor Henderson’s Report will agree with his conclusion that “the law should not be regulated to protect the 10 percent of consumers who can afford legal services while ignoring the 90 percent who lack the ability to pay. This is too big a gap to fill through a renewed commitment to pro bono. This is a structural problem rooted in lagging legal productivity that requires changes in how the market is regulated.” But regardless of whether you agree with the Report’s conclusions, it is important to be aware of the data and issues that frame the contemporary debate and discussion about legal services regulation. The 2018 Legal Market Landscape Report is an invaluable resource for those who are familiar with these initiatives and for those who are new to these debates.
Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model 8.4(g)
, 30 Geo. J. Legal Ethics
195 (2017), available at SSRN
A male lawyer is taking a deposition; a woman is defending. During the deposition, the man repeatedly makes sexist comments to opposing counsel, such as “I don’t have to talk to you, little lady” and “be quiet, little girl.” A lawyer represents the husband in a divorce action, and argues that the children are in danger because the wife had been seen around town in the presence of “a black male” or “the black guy.” At a deposition the lawyer representing the defendant said to his opposing counsel, a woman, “I don’t have a problem with you, babe,” and when the woman expressed surprise at the word babe, responded “at least I didn’t call you bimbo.”
Incidents such as these finally persuaded the ABA House of Delegates, after two decades of discussion and debate, to adopt a rule of professional conduct prohibiting bias, discrimination, and harassment in the practice of law. Model Rule 8.4(g) now provides that a lawyer is subject to discipline if he or she “engage[s] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” In a recent article in the Georgetown Journal of Legal Ethics, Stephen Gillers recounts the story of the controversy over proposed anti-bias rules at the ABA and state levels, and also provides a guide to applying the new rule.
Much of Gillers’s article is dedicated to a detailed legislative history of the rule, which will be quite helpful in applying Rule 8.4(g) to those cases that are sure to arise. For example, previous versions of the rule had been limited to conduct that is prejudicial to the administration of justice. The omission of that qualifying language now suggests that the coverage of the rule is not limited to conduct that takes places before a tribunal. (P. 214.) Drafting history therefore suggests a broad interpretation of the scope of the rule. Similarly, one might ask whether the language “harassment or discrimination” is limited to that conduct that would constitute actionable discrimination under civil rights statutes. Such a limitation would impose a significant restriction, as the Supreme Court has held that a hostile work environment claim under Title VII must be objectively hostile or abusive, that harassment must be severe or pervasive, and that isolated incidents or offhand remarks of a sexual nature will not give rise to liability. Comment  to the revised rule states that “[t]he substantive law of antidiscrimination and anti-harassment statutes may guide the application of paragraph (g)” (emphasis added). It may still be an open question whether a stray comment or a single incident not rising to the level of “severity” for Title VII purposes will suffice for discipline under Rule 8.4(g). The final version of the rule now also includes a mens rea requirement (“knows or reasonably should know”) to avoid the concern that a lawyer may be strictly liable for discipline for conduct that inadvertently manifests bias or prejudice. As Gillers notes, however, it’s hard to imagine a case in which a lawyer would intentionally act or speak in a way that manifests bias or prejudice without knowing it would have this effect. (Pp. 218-19.)
Some critics of the rule worry that it will be interpreted to prohibit words or conduct that subjectively offend hyper-sensitive people, or which take the unpopular side of a social or political controversy. In comments written for the Heritage Foundation, for instance, the late legal ethics scholar Ron Rotunda offers the hypothetical of a bar association meeting addressing excessive violence by law enforcement officers. One lawyer says “black lives matter,” to which another lawyer responds, “blue lives matter.” Rotunda argues that, while a grievance committee would be unlikely to actually impose discipline on the second lawyer, that possibility is not foreclosed by the text of Rule 8.4(g); moreover, even if discipline were unlikely, the rule will have a chilling effect on the expression of disfavored viewpoints. Concerns about chilling protected speech underlie the objections of state attorneys general in Tennessee and Texas, and the Montana legislature, urging their state courts not to adopt the new ABA anti-bias rule.
Gillers appreciates but ultimately rejects these arguments. One of the claims in his paper is the Rule 8.4(g) is a rule of professional conduct, not a speech code aimed at unpopular political views. (Pp. 222-23.) Many provisions of the Model Rules directly regulate lawyers’ speech: Lawyers may not reveal protected confidential information, make a frivolous argument, knowingly make a false statement of fact or law to a tribunal, allude to a matter not supported by admissible evidence, communicate ex parte with judges or jurors, or communicate with non-clients known to be represented by counsel in the matter. No one—and I mean no one—believes these rules raise serious First Amendment issues. So what would be the problem with a rule subjecting a lawyer to discipline for calling opposing counsel “little girl” in a deposition? Moreover, the rule provides that it “does not preclude legitimate advice or advocacy consistent with these Rules,” so if it were necessary to argue, for example, that a cake decorator had a protected religious-liberty right not to sell a wedding cake to a same-sex couple, the lawyer would not be subject to discipline under the rule for manifesting bias on the basis of sexual orientation.
There are a couple of issues with Rule 8.4(g) that seem difficult to me. Gillers addresses them, but perhaps has not fully answered critics of the rule. Interestingly, one critique comes from the political left, and the other from the right. From the left, one may wonder whether it would be possible for a lawyer to engage in what might be called remedially classification-sensitive client selection without violating the anti-discrimination provision of the rule. Gillers discusses the well-known (but anomalous) case in which a lawyer was sanctioned by a state anti-discrimination agency for limiting her matrimonial practice to women. (Pp. 227-29.) Comment  provides: “A lawyer does not violate paragraph (g) by limiting the scope or subject matter of the lawyer’s practice or by limiting the lawyer’s practice to members of underserved populations in accordance with these Rules.” But women as a group may not be underserved in divorce cases—the lawyer simply wanted to dedicate her professional energies to helping women, not men. Rule 8.4(g) may reach the same result as the state anti-discrimination agency in that case.
The critique from the right is couched in terms of religious freedom. Gillers cites a comment from the Conference of Catholic Bishops questioning whether a lawyer could, for religious reasons, refuse to prepare a prenuptial agreement for a same-sex couple. He concludes that the lawyer would be subject to discipline under Rule 8.4(g) for refusing to serve these clients. (Pp. 231-32.) An interesting question is whether a lawyer could refuse to prepare a prenuptial agreement without giving any reason. If that would be permissible, then it suggests that the religious-freedom argument has some bite. But a recent ABA ethics opinion suggests that it would be permissible for a lawyer to opt out of preparing prenuptial agreements altogether. The opinion addressed the issue of whether a judge would be subject to discipline under the anti-discrimination provisions of the Model Code of Judicial Conduct for refusing to perform same-sex marriages. The ethics committee concluded that if a judge has discretion in a jurisdiction not to perform marriages, then an across-the-board refusal to perform any marriages, including same-sex marriages, is permissible. A judge cannot pick and choose, however, without running afoul of the Code. By analogy, a lawyer could refuse to prepare all prenuptial agreements, but not those for same-sex couples. This application does appear to go beyond the pure regulation of conduct and touch on matters of conscience, as the critics of the rule fear.
Of more theoretical interest, Gillers gives short shrift to the argument that the lawyer-client relationship is a fiduciary one, requiring significant trust and the lawyer’s professional devotion. He gets close to advocating for a cab-rank rule, in which lawyers would be obligated to accept representation in any case in which they were competent and there was no conflict of interest: “[T]here is a supervening value in having a system of laws where no person can be denied representation by anyone licensed and competent to provide it, and who does provide it to others, because of the person’s membership in one of the protected groups.” (P. 233.) If this were the upshot of Rule 8.4(g), it would still be a rule of professional conduct and not a speech code, but one with sweeping impact on the American legal profession. Moving toward a cab-rank rule avoids the complication noted above, in which viewpoint-neutral refusals to serve particular clients or perform certain services are permissible, but a lawyer may not allocate her services in a way that discriminates on the basis of protected classifications. In doing so, however, this conduct rule would to some extent under-value the affective qualities that are traditionally invoked by language like “zealous” advocacy and “wholehearted” devotion.