Jeremy Waldron, Damned Lies
(Mar. 4, 2021), available on SSRN
Among the damage left in the wake of the Trump administration is the degradation of truth. Of course, Donald Trump is not the first president to lie. He has, however, been successful in his assault on many institutions that Americans trust to deliver facts. Trump’s lies about the election results not only left many of his supporters with a false view of reality, but also cast doubt on election officials, courts, and procedures designed to verify the votes. In his new essay, Damned Lies, Jeremy Waldron helps dissect and categorize lies. In the process, he illustrates the complex relationship lawyers have to truth. If Trump damaged democracy with his disregard for facts, what about the lawyers by his side? Should they be disciplined or simply condemned for their part? Waldron does not answer these questions but he provides those of us who are interested in them with a sophisticated way to approach the problem.
Waldron’s essay seeks to answer the central question, what makes a lie particularly toxic in public life. What, in his words, makes it a “damned lie”? Of course, there is a legal question lurking beneath his excursion into moral philosophy: What sort of lies should our legal system tolerate? Do lawyers have a greater obligation to the truth than others? When, if ever, is it okay for lawyers to lie?
First Waldron distinguishes those who lie from liars. Calling someone a liar means that the lies are not merely incidental; they define him. They comprise his status and his role. Like the murderer in Macbeth who has no proper name, the liar can be reduced to his sin. Sound familiar? Waldron, at least, considers Trump a liar by this definition. He does not specifically address the significance of this distinction to his analysis but perhaps it would be more appropriate to condemn someone for his status than for isolated acts, at least if his lies are repeated and damaging. We have all lied, after all, but it would be wrong to reduce most of our worth to our least noble acts. The liar, however, deserves to be condemned for his lies.
In his typology of lies, there are white lies, used to spare someone’s feelings, which are not so bad. Fibs are trivial lies, inconsequential except that they can undermine the speaker’s credibility. There are barefaced lies that are so demonstrably false as to be absurd. But these are not as innocuous as they might seem because they can comprise an act of political prowess designed to groom one’s audience to accept future lies. Here’s where Trump begins to break faith in institutions previously trusted to deliver facts. “Trust me, not them” is implicit in the barefaced lie. Next, there are falsehoods that the speaker believes to be true. The criminal law treats these sorts of lies as relatively blameless. The rules of professional responsibility seem to regard a pattern of lies as problematic even when the lawyer does not know he is lying. That said, several specific rules require that the lawyer know that he is lying. For Waldron, it is not the fact that the speaker knowingly lies but rather the misrepresentation of reality that causes the damage. Waldron is less concerned with what he calls “bullshit,” statements made without regard to truth and other forms of deceit, things that are misleading but not direct lies.
Next, Waldron addresses lies in different contexts. First, he discusses politician’s lies. Lies, he argues are not only common but also to some degree necessary in politics. If the government is tasked with keeping the population safe, some level of deceit comes with the territory. That said, Waldron argues that Trump lied mostly for his own self-interest and so his statements fell outside of this category. To the extent one buys the paternalistic argument that lies may be necessary in some contexts to protect the public, this seems inapplicable to the legal profession. Lawyers may not lie to their clients even if doing so would promote the clients’ interest.
But a politician, especially the president, has the capacity to do a great deal of harm, and the severity of the lie depends in part in its consequences. Perjury, lies made under oath, are literally damned lies because they were traditionally thought to be punished by damnation. But they too involve a particularly egregious harm, including sending innocent parties to jail or execution. We do tolerate a certain degree of deceptive courtroom conduct on the part of attorneys to advance their clients’ interest, such as discrediting a truthful witness, but presumably we do so because we feel that truth is best served by an adversary system in which lawyers vigorously represent their clients’ interests. The harm is tolerable because, in the courtroom, it serves the overall goal of truth.
Lies can harm individuals but they can also do significant harm to the community. Waldron relies on Immanuel Kant to explain that lies are wrong because they treat third parties with contempt, as means to an end, rather than ends in themselves. But Kant also described a harm to communities that depend on language as a bond. Lies make social discourse useless and trust impossible, tearing at the fabric of the community. Waldron points out that this harm is incremental. The convention of believing others is so strong that society can tolerate some lies, but the habitual liar takes advantage of the strength of this convention. He is a free rider. Waldron returns periodically to former President Trump. His lies at least momentarily undermined the ability of political language to convey reliable information. The Georgia officials could state facts about their process, the checking and rechecking of votes, and many simply refused to believe them.
That brings us to the courtroom. Why, Waldron asks, are lawyers prohibited from making affirmative misstatements or presenting false evidence in court? He astutely points out that the answer “they are officers of the court” is unsatisfying. The court is a miniature community that relies on adversary advocacy tempered by truth. In this context, truth is both vulnerable and critically important. It is vulnerable in that a lawyer will be tempted to bend the truth for his client. It is critical because justice is at stake. Lawyers as a community help to maintain the convention of truth telling in this precarious context. The rules of professional responsibility establish the outer limits of partisan spin in the courtroom. Lawyers are essential to this goal especially now that few witnesses truly believe that they will be damned if they lie under oath.
Waldron suggests that maybe the court is not the only such place where the convention of truth-telling is both vulnerable and essential. Perhaps there are pockets of politics where that is the case as well. The discourse surrounding elections may be such a context: the temptation to lie is enormous and the consequences of falsehoods dire. Waldron concludes that a lie in this combustible situation is a damned lie, leaving the reader to infer that he might support greater regulation of false speech in this context.
So, that brings me to a final question raised by Waldron’s fascinating discourse on damned lies. What about the lawyers who lied to the public outside the courtroom about the election on Trump’s behalf? Should they face repercussions for their falsehoods even though they were not inside a courtroom? Waldron’s discussion leaves me with this tentative answer: lawyers do not play the same role outside the courtroom as they do inside of it. Lawyers are not guardians of the community entrusted with preserving faith in the truthfulness of communication in the political arena. They are political actors or advocates, but they are not in a unique position. Thus, lawyers should be condemned for lying like anyone else. Perhaps Rudy Giuliani, Sidney Powell, and Lin Wood became liars, in which case it would be appropriate to reduce them to their worst acts. They should be criticized for their damned lies, because the consequences were so grave. That said, professional discipline should be reserved for deception that casts doubt on a lawyer’s judgement or ability to serve clients in other contexts, and therefore may not be appropriate. If these lawyers are culpable, it may be because lying in this context does severe damage to the political community, not because they are lawyers.
What is to be done with liars, including lawyers, in the political realm? What should the law do about lawyers and non-lawyers who tell such grave falsehoods that they damage not only third parties but also the fabric of trust that binds Americans together? Perhaps, the law and the rules of professional conduct can address this problem, but not all problems call for legal solutions and some legal solutions have unintended effects. Regardless of what the answer may be, Waldron’s essay helps his readers understand the complexity of the question.
In 1999, then-Professor Patrick Schlitz published a provocative article called On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession. Drawing on anecdotal accounts and empirical data, the article examined the perplexing issue of lawyer dissatisfaction. After discussing the explanations for why many lawyers are unhappy and unhealthy, Schlitz recommended strategies for lawyers pursuing career paths in practice settings where they can thrive and practice ethically.
Fast forward 20 years, to the results of an empirical study conducted by Professors Stephen Tang, Vivien Holmes, and Tony Foley and discussed in their article, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers. This article examines the role ethical climate plays in influencing ethics and the connection between perceived ethicality and lawyer satisfaction. With heightened concern related to lawyer well-being and remote work, I commend the authors for conducting an ambitious study and urge you to read their article to learn more about their findings and recommendations.
Dating back to the work of Professor Michael Kelly, legal profession and ethics scholars have underscored the dominant role that “house norms” and culture play in influencing lawyer conduct. Despite this recognition, a relatively small number of studies have systematically examined organizational culture and effects of lawyers’ practice settings on lawyer ethics and satisfaction. More studies have involved qualitative methods with some relying on a small number of research subjects. Many of the studies have focused on particular practice settings, often large law firms.
What is generally missing is more comparative organizational research of the culture of lawyers’ work settings. Identifying this need, in 2010, Professor Elizabeth Chambliss urged researchers to consider comparative organizational studies and to integrate legal ethics research with the broader literature on organizational culture. In this piece, Professors Tang, Holmes and Foley accept Chambliss’s call, as they have designed a large-scale empirical study using analytical frameworks drawn from organizational theory. The researchers went beyond a comparative study of lawyers’ views and experiences in law firms, conducting a more inclusive examination that involved lawyers working in non-firm settings, including government and in-house practice.
Building on their earlier qualitative work involving new lawyers’ experiences and convergence of their personal values and ethical frameworks, Professors Tang, Holmes and Foley designed a quantitative study to closely examine the interplay of factors that influence the ethical climate of different work settings where new lawyers work. To recruit study participants, the researchers used a number of methods to invite recently licensed lawyers from all Australian jurisdictions to complete an online survey between November 2013 and July 2016.
The online survey instrument used a condensed version of an Ethical Climate Index (ECI) developed by Dr. Anke Arnaud, an expert in ethics and organizational climate. The survey instrument also included other well-validated measures to tap the respondents’ perceptions and experiences related to mental health, psychological needs, professionalism, and job satisfaction, as well as the perceptions related to learning and the respondents’ work environments.
The authors used the survey responses to address the following research questions: (1) is the ECI a good and suitable measure of the ethical climate of working environments of newly admitted lawyers, and (2) what are the antecedents and consequences of the different dimensions of ethical climate for newly admitted lawyers?
Professors Tang, Holmes and Foley make a significant contribution to the empirical literature related to ethical decision-making in attorney workplaces. They launched a study that resulted in 356 validated responses. Applying a statistical technique widely used in social sciences, the researchers reduced the dimensions of ethical climate to the following and applied them in analyzing the responses provided by newly admitted Australian lawyers:
- Power and Self-Interest: The extent to which power, control, and instrumental outcomes are more important and valued than normative principles, such as honesty, ethicality, or relational values, and a corresponding preparedness to break rules to obtain benefit when necessary.
- Integrity and Responsibility: The extent to which there is a sensitivity to behaving ethically and in the broader public interest; an adherence to formal ethical rules; an inclination to be compliant, conscious, and accountable to prescriptive requirements; and an awareness of ethical problems that arise in the workplace;
- Ethic of Care: The extent to which people in the workplace expressed empathy and understanding for each other and strove to develop positive and respectful relationships with others as an attentive professional.
Their survey results revealed that these three components can be evaluated as quantitative measures of ethical climate. This is an important contribution to both applied and theoretical legal ethics.
Although a summary of their other study results is beyond the scope of this review, the following highlights select findings related to perceptions of work organization, job satisfaction, and psychological well-being. A statistical analysis revealed that all three ethical dimensions were positively and independently correlated with the workplace being experienced as a learning organization. Specifically, the Ethic of Care and the Integrity/Responsibility dimensions were positively associated with the perceptions of a learning organization, while high perceptions of Power/Self Interest were associated with lower ratings of the workplace as a learning organization.
Similarly, the results indicated that there was a clear relationship between the ethical climate dimensions and job satisfaction. Higher ratings on the Power/Self Interest dimension were related to lower job satisfaction, while higher ratings related to Integrity/Responsibility and the Ethic of Care perceptions were associated with higher job satisfaction.
Finally, the results revealed a connection between perceptions of the ethical climate of the workplace and psychological well-being. Respondents who perceived the climate as being characterized by power and self-interest were more likely to experience more symptoms associated with depression. (On the other hand, respondents who perceived their workplace climate has having higher Integrity/Responsibility and Ethic of Care dimensions were less likely to experience symptoms of depression and/or anxiety.)
At a time when pandemic concerns have forced lawyers and others to work remotely, the lessons from the article are particularly noteworthy. Legal employers should recognize the importance of investing in training, mentoring, and supervision. With large numbers of employees working from home, supervising attorneys should not assume that lawyers are learning and developing professionally. Rather, supervisors should design programs, processes, and opportunities for junior lawyers to learn, grow, and connect with other lawyers. The supervisors’ outreach can help communicate to the junior lawyers that they are valued members of the organization.
Supervisors must also devote time to monitoring work, providing feedback, and communicating that “their virtual door is always left open.” This investment will pay dividends in improved quality of work. The study findings suggest that such efforts should also contribute to attorney well-being, satisfaction and a heightened sense of ethicality.
In the long run, investing in supervision and mentoring can affect the bottom line through retention because happy and satisfied lawyers are less likely to look for greener pastures. They are also more inclined to contribute as members of the organization. In this sense, devoting time and resources to training, supervision, and attorney well-being merges good ethics and business when firms invest in junior lawyers as assets and treat them as the future of the organization.
Cite as: Susan Fortney, Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing
(June 3, 2021) (reviewing Stephen Tang, Vivien Holmes, and Tony Foley, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers
, 33 Geo. J. Legal Ethics
1035 (2020)), https://legalpro.jotwell.com/why-ethical-climate-matters-in-newly-admitted-lawyers-workplaces-an-empirical-examination-of-ethical-climate-job-satisfaction-and-lawyer-wellbeing/
Suppose you became aware that a person advocated for doing abhorrent things, and if given the opportunity, would provide assistance to others who directly did those things. Suppose, for example, that this person thought that one way to deter refugees from seeking asylum in the United States would be to forcibly separate children from their parents, locking children in cages in squalid camps that would shock Charles Dickens, and making it impossible to reunite families subsequently. If this person loudly advocated for these things at a bar, you might get up and move to a different barstool. If this person were your neighbor, you might avoid making eye contact with them on the street. If this person were a member of your family, you would dread Thanksgiving dinner.
If this person were a high-ranking government lawyer, however, they would likely suffer no adverse consequences in their career and might even be promoted to a higher position. This is the concern animating Leah Litman’s powerful and passionate recent article – a contribution to a symposium on Jack Balkin and Sandy Levinson’s book, Democracy and Dysfunction. Networks of elite lawyers are so conflict-averse that they look the other way when members of their club participate in actions that threaten fundamental democratic and human-rights norms. (Pp. 305, 307.) They have an opportunity to sanction immoral conduct by “withholding certain future government appointments and promotions from the lawyers” (P. 307), but instead they welcome these wrongdoers back into the fold of the respectable legal profession. (P. 317.) There are some things one could do that would result in ostracism and exclusion from polite society, so “[w]hy is enabling racist and cruel family separations not on the prohibited list of actions?” (P. 318.)
It is a factual question, yet to be answered, whether lawyers in the Trump Administration, including those who worked on the “zero tolerance” and family-separation policies at the southern border, will suffer no adverse career consequences. According to an article in Politico, job prospects for senior national security officials in the administration may not be so bright.
As Litman notes, however, two high-ranking lawyers involved in the George W. Bush Administration’s effort to find a legal justification for “enhanced interrogation techniques” did pretty well for themselves after leaving the Justice Department. They are now known by the titles of Ninth Circuit Judge Jay Bybee and Supreme Court Justice Neil Gorsuch. (Pp. 308-13.) What’s more – and this is really what sticks in Litman’s craw – elite establishment lawyers from both political parties vouched for the character of both of these lawyers. Neal Katyal, for example, wrote an op-ed urging that Gorsuch be confirmed, and introduced him at his Senate hearing. (P. 312.) Will something similar happen to Rod Rostenstein, who provided advice to the Trump Administration on the family-separation policy?
There is a longstanding professional tradition of withholding moral accountability from lawyers who represent unpopular clients. When conservative luminaries Bill Kristol and Liz Cheney labeled elite law firm lawyers representing detainees post-9/11 as the “Guantánamo Nine,” many other elite lawyers, including former Solicitor General Charles Fried, rushed to their defense. If it is wrong to criticize these lawyers as somehow pro-al-Qaeda, then wouldn’t it be a similar analytical mistake to call out or shun lawyers who advised the Trump Administration on its family-separation policies?
Litman’s response is well known to legal ethics scholars, as it was forcefully advocated by Monroe Freedman. Freedman correctly observed that in most cases, outside the unusual context of court-appointed representation, there is no legal obligation on the part of any particular lawyer to accept the representation of any particular client. Because lawyers have legal discretion to choose their clients, they are fully morally accountable for the choices they make. If a lawyer decides to represent Harvey Weinstein, people might think the lawyer is pro-rape, as happened to Harvard Law School Professor Ronald Sullivan. Moral accountability, in such a case, could include informal sanctions such as shaming, ostracizing, and refusing to hire or promote the lawyer. Of course, a lawyer like Sullivan would reply that it is preposterous to suggest that he is pro-rape. His representation of Weinstein could be motivated by his commitment to values such due process of law and ensuring that litigants are treated with dignity Or, he might believe that even powerful people such as Weinstein may not get a fair shake at trial and in the court of public opinion if they are accused of particularly heinous acts. It is possible that Sullivan is morally accountable for the clients he chooses to represent, but he has carried his burden of normative justification.
Freedman’s position has always seemed to me to beg an important question. If there were no legal discretion to choose one’s clients, as in the English cab rank rule for barristers, Freedman would find it inappropriate to hold lawyers morally accountable. In any case, Model Rule 1.2(b) states that “[a] lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” The question that gets begged here is the relationship between law and morality. A view held by many political philosophers is that there is no moral obligation to obey the law. If that’s the case, then why should a legal obligation to represent all clients make any difference to the moral evaluation? Freedman never answered that objection satisfactorily.
Litman has no difficulty with that question, because her position would support full moral accountability for actions taken by lawyers acting in a representative capacity. This view, which is grounded in the persistence of moral agency, was the received view during what David Luban and I have referred to as the first wave of theoretical legal ethics. Scholars in the so-called second wave have argued that there are obligations attaching to one’s role as a lawyer that may excuse what would otherwise be regarded as morally wrongful acts or associations. You might have good reasons to avoid the hypothetical neighbor who advocates doing terrible things, but as a lawyer, there may be good reasons to represent a client who did those things. In my experience, scholars (although, interestingly, not most practicing lawyers) resist this view quite vigorously. Letting go of accountability, in ordinary moral terms, not based solely on restricted or distinctive professional normative considerations, seems to assume too much about the goodness of social and political institutions. To quote the title of a chapter from Luban’s 2007 book, philosophers are worried about “the ethics of wrongful obedience.”
One may still have misgivings about informal social sanctions, such as calling out and shaming, particularly where these sanctions include denial of jobs or promotions. Some of the recent hand-wringing about “cancel culture” seems overblown, for many of the reasons alluded to by Litman in this paper. One aspect of morality is what Peter Strawson referred to as reactive attitudes, such as hurt feelings, resentment, indignation, or offense. Moral accountability is grounded in these reactive attitudes. As talented a standup comic as Louis C.K. is, if you find his behavior toward women to be abhorrent, you understandably would not want to watch his Netflix specials, and would want to make sure your friends also know what a despicable person he is. On the other hand, precisely because they are informal, social sanctions such as canceling performers are not always precisely calibrated to the magnitude of the offense and the reliability of the evidence.
But Litman’s point is: This is morality, not professional discipline, and there is no Due Process Clause in the moral domain. Scholars who are sympathetic with first wave legal ethics theory and skeptical of professional nonaccountability should be with her in criticizing elite lawyers who are too quick to forgive and forget the willingness of Trump Administration lawyers to lend assistance to humanitarian disasters such as the zero-tolerance policy that led to so many families being needlessly torn apart.
In studies of the legal profession, we examine what lawyers do within and to the justice system in which they work in specific and conceptual ways. We also consider what the work does to lawyers. And, as many have noted, these two are intertwined and bi-directional. Clare Gumby and Anna Carline provide a fascinating perspective on this relationship by applying affect theory to the results of their interviews with criminal attorneys working on rape cases in England. The study reports on findings from 39 interviews with barristers from across England who defend or prosecute rape cases (the vast majority of whom regularly act in both capacities).
Gumby and Carline explain the theory they use to understand their results:
Affect is used to describe emotions (e.g., anger and fear) but also encompasses bodily sensations (e.g., shame, guilt and excitement) and other ineffable feelings and senses. These may be positive or negative, fleeting or sustained, experienced consciously and unconsciously and may sit outside of language in terms of being able to articulate. Here, we use affect theory, with its focus on relationality and embodiment, to understand how barristers can be transformed by their work and aim to move jurors—recognizing the body’s capacity to affect and be affected.
Defending or prosecuting in criminal prosecutions alleging sexual violence evokes emotions in us all. “Outsiders think all of it sounds pretty awful,” says one barrister. Sociological studies of occupations “that society views as unpleasant, disgusting or morally questionable” have been considered against a socially constructed idea of “dirty work.” Gumby and Carline adopt this lens to understand criminal lawyers’ construction of their own work. Specifically, they consider acting in rape cases as dirty work for its association with predominantly female victims as sexually tainted according to persistent gendered conceptions, working with those accused of socially stigmatised offending, combative adversarial styles and getting “physically dirty” where there is a necessity of proximity to “blood, semen and vomit and in the most extreme cases, death and decay.”
Such work is often undertaken with a stated motivation of public spiritedness — a necessary evil and a recognition that someone’s got to do it. For the criminal law bar, this is an integral part of the professional narrative of goodness and order. Yet, echoing the moral philosophy of David Luban, some criminal barristers also described the emotional and moral torment of working in a system that can “routinely deliver injustice” and feeling bad about employing forensic techniques that made them think: “I shouldn’t really be doing that as a human being.” Thus, the article documents a feeling that criminal advocacy at the English Bar is “morally, socially and physically tainted” as well as “a fourth dimension of emotional taint.” Gumby and Carline’s study looks particularly at how lawyers working on rape cases experience “a peculiar form of discomfort” in their very proximity to their clients/victim and in their representation within the adversarial criminal justice system.
Gumby and Carline argue that “key features of dirty work . . . are not the job per se but the consistency in visceral response elicited by . . . dirty employment, as well as the accompanying question of ’how could you do that?’” While based in criminology, the study unsurprisingly touches on familiar moral debates raised by their participants. They raised The [ethics] Question – how can you represent the guilty? — evoking Barbara Babcock’s highly perceptive taxonomy of attorney motivations. Babcock’s description of the attorney as “garbage collector” is obviously apt here, and some respondents seemed to be the Egoist type describing the job as “fun” and that a “sense of prestige was derived from ‘doing really awful, difficult cases, and sort of bigging it up.’”
Still, Gumby and Carline’s focus is less on ethical justifications of role than who criminal barristers are and become as individuals, and how this, in turn, informs the dirty practise of criminal law advocacy. While they cited positives about doing the job and a usual sense of pride in achieving justice, the focus of the article is on the negative emotions. For instance, they hypothesize that taking pride in doing awful cases can be a species of gallows humour used as a coping strategy for distressing emotions and stigma. They document the many and varied emotions of barristers living on a “diet of filth” as well as dealing with the emotions of their clients (often describing the work as more “social work”). Female advocates raised specific emotional responses to defending clients in child abuse cases: “when you’ve got kids; you actually want to stab [your client] in the eye.” Defence work is the most difficult and is most examples cited in the article, but prosecution is described by one as having to be “mean.” Gumby and Carline note that for criminal defence barristers, “emotional dirt . . . intersected with the social dirt of sexually abusive and abused individuals, the moral dirt of what perpetrators had done (or been accused of doing) and the attributions of blame and shame heaped onto rape victims” such that untangling the impacts on advocates was difficult.
Gumby and Carline turn to the use of dirt to evoke emotion in others. Their interviewees are remarkably attuned to affect in the jury and they routinely use this to the advantage of their case. Two examples evidenced use of a dirty image evoking negative emotion to produce a desired result for the defence. One described questioning a defendant about the taste of vomit for a “disgusting” impact on the jury so that they experience the violence and degradation of an act, and another described a sense of victory when a victim vomited on the stand. Thus, “Barristers viewed the giving of evidence as involving embodied affects” such that physical evidence and presence of the (sullied) victim, and the tainted accused, was key. It would be a very interesting addendum to this study to ask these criminal barristers whether they perceive any changes since the global pandemic where courts are forced to conduct proceedings remotely or in courts where the advocates and witnesses, and all the other stakeholders, are wearing masks.
There is debate in England and Wales, and in Australia, about the ability of the criminal justice system to afford procedural fairness and to successfully prosecute sexual violence cases. Over time, there have been minor amendments to self-imposed bar rules governing how certain witnesses may be examined; a small concession that lawyers play a key role in more effectively achieving fairness and truth. While conceding this controversy, Gumby and Carline’s study is chiefly a descriptive account. They do not attempt to answer the question of whether and how much a barrister’s finely tuned ability to evoke emotion should be limited or made off-limits in the courtroom.
Gumby and Carline’s contribution is to trace the varied array of impacts and uses of human emotion in criminal law advocacy. Criminal barristers must “employ emotional labour in order to manage . . . dirt, [and] their difficult feelings stemming from contact” and at the same time “engage with these dirty aspects” to create emotions in others that they see as necessary to fulfil their professional duties to their clients. They describe this paradox of emotional burden and necessity as particularly difficult in the English context “where feelings have been written out of the work that barristers do” and barristers cannot choose their clients. They document the various coping strategies including internalising the ideology of the adversary role, just not thinking about it, humour and alcohol (though not obviously to excess as in some US studies). Yet the authors contend that adopting these strategies doesn’t mean “emotional involvement is decreased or feelings made easier to handle,” and a suppression of emotions is required. They describe adoption of “tempered indifference” where “advocates strategically turn their emotions down” because “holding back that little bit just stops it sort of becoming really subjective.” However, like Richard Wasserstrom’s foundational account of the moral taint infusing an attorney’s life, they worry about “the longer-term ability to turn emotions back” on in any context. They document a “significant minority of participants [who] spoke about becoming ‘hardened’ over time, it being ‘almost rather difficult to feel anything at all’ and recognizing that ‘hearing of the abuse of a . . . small child doesn’t impact you, well, that in itself has had an effect, hasn’t it?’” Thus, Gumby and Carline’s analysis lends urgency to the many calls for assistance for lawyer well-being. It also questions the traditional image of the stoic English advocate; rather, they paint a picture of bluster masking internal distress.
James A. Fanto, The Professionalization of Compliance: Its Progress, Impediments and Outcomes
(Dec. 7, 2020), available on SSRN
James A. Fanto’s important new work, The Professionalization of Compliance: Its Progress, Impediments and Outcomes addresses a concern that I have been thinking about for quite some time: whether it is appropriate to consider people working in the field of compliance to be “professionals.” Within compliance circles, the phrase “compliance professional” is used constantly. Yet, as Fanto highlights in his excellent work, it is not at all clear that those engaged within the compliance industry meet the traditional hallmarks one finds associated with professional activities. Fanto’s article addresses this puzzle head-on in an interesting and thoughtful manner.
On the one hand, Fanto explains that those currently working in the field of compliance are aware that they “are engaged in a special activity,” and they have “formed organizations of compliance practitioners to share their specialized knowledge and practices.” The Society of Corporate Compliance and Ethics explains that the group “supports the compliance and ethics profession with educational opportunities, certification, networking, and other resources.” Indeed, their certificates send particular signals within the industry and are a way to demonstrate increasing knowledge and expertise in compliance. And yet, it is not at all clear what the boundaries of a compliance profession would be or who would count as “in the profession” as against those who work “in support of the profession.”
Fanto further explains that the hallmarks of what has traditionally been considered a “profession” don’t comfortably fit those working in compliance. In particular, Fanto, building upon the scholarly work of others, provides a helpful framework for evaluating the status of those working in the field of compliance against other professional groups. Professionals are often:
(i) engag[ed] in a distinct set of activities requiring the exercise of judgment and discretion, (ii) hav[e] training for the profession that is in institutions of higher learning but that is controlled by the profession, (iii) hav[e] practitioners with a shared sense of engaging in a common occupation who have established organizations for the sharing of knowledge and practices and (iv) receiv[e] from state governments exclusive control over the professional activities in the form of licensing requirements.
When the field of compliance is assessed under this framework, issues regarding whether it should be considered a stand-alone profession become immediately apparent.
In particular, there is no common and accepted professional training or school for compliance. Fanto notes that compliance courses are taught in both business and law schools. Indeed, both sets of schools have developed certificate programs and masters in compliance in recent years, but there is no commonly accepted curriculum for those interested in pursuing a career in compliance. Meanwhile, as to the fourth factor, there are no state licensing regimes governing the work of those working in the compliance area. Importantly, self-regulation, one of the hallmarks of professional organizations, is lacking in this space. Indeed, Fanto notes that there has not been a groundswell of support for the creation of state licensing regimes for those working in compliance, which cuts against the notion that those working in the compliance area are indeed professionals.
Despite not meeting these markers, I wonder if the compliance industry might lobby more directly for professional status due to an increase in potential liability being sought out by state and federal authorities against them. Indeed, in a recent speech before the National Society of Compliance Professionals, SEC Commissioner Hester M. Peirce discussed Chief Compliance Officer liability and the need to have more conversations about the issue. This focus on the role of compliance is not at all new, as former SEC Commissioner Luis A. Aguilar noted in 2015 that Chief Compliance Officers “play an important and crucial role in fostering integrity in the securities industry.” Individuals outside of those considered professions, of course, may be subject to liability, but moves toward greater liability might encourage those engaged in compliance activities to push for more formal recognition as professionals. This sort of recognition might enable those working in compliance to engage in more self-regulation and, importantly, a greater ability to organize an effort to push back against governmental sanctions.
Fanto concludes the piece by arguing in favor of creating a professional status for individuals working in compliance. He properly notes that, “[i]n the complex legal, ethical, and social environment in which organizations function today, boards, executives and employees need compliance officers who understand well the organization’s business and affairs and the applicable legal, ethical and other obligations applicable to them and who can knowledgeably guide them in meeting those obligations.” And yet, Fanto is unpersuaded that compliance will be granted its own distinct professional status, in part, because of the overlap between the fields of compliance and the legal profession. Instead, Fanto argues in favor of making compliance, in his words, “a recognized part of the legal profession.” This suggestion has its own set of potential challenges. For example, the ABA and the profession have long resisted calls for greater regulation of conduct that is a mix of both business and legal activity. At core, that is much of what the compliance function encompasses—an evaluation of legal requirements in light of certain business realities and risks.
There does not appear to be a neat solution to the current status, or lack thereof, of those working in the compliance space. And yet, what makes these issues interesting is the very fact that they are messy. Fanto’s piece lays out the various aspects of the debate, laying bare the difficulties associated with attempting to thoroughly and logically create an analytically defendable argument regarding the proper status of those working in the field of compliance. The puzzle is, for those (like myself) who like them, absolutely perfect in its difficulty, challenge, interest, and mystery.
I highly encourage you to read Fanto’s article and attempt to put the pieces of the compliance professional puzzle together for yourself!
Lawyers need to be competent. No one would disagree with this simple fact. More contentious is the question of how to ensure that lawyers are, in fact, competent. On the pre-entry side of things, controversies have frequently erupted over law school curricula and bar exams. In the area of post-entry competence, recent years have seen lively discussions about how best to measure and ensure good lawyering. Within this dynamic context, Pooja Parmar’s recent article Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence is an important contribution to the growing scholarly literature on what it means to be a competent lawyer in the 21st century.
The focus of Parmar’s article is the Canadian legal profession’s response to the Calls to Action by the Truth and Reconciliation Commission of Canada (“TRC”). More specifically, Parmar focuses on the “particularly noticeable” attention given “to cultural competence or skills generally associated with the idea.” (P. 532.) For example, in response to the TRC Calls to Action, the Law Society of Alberta and the Law Society of British Columbia have both now instituted mandatory Indigenous cultural competence training for all lawyers.
Parmar’s thesis is two-fold. First, Parmar contends that “an uncritical embrace of cultural competence, as currently understood, is inadequate and might even prove to be counterproductive despite best intentions.” (P. 526.) Second, she suggests that a change of focus is required and that the TRC Calls to Action should be viewed “most fundamentally as a call to rethink legal education and ongoing lawyer training” grounded in a broader conversation about accountability.
For readers unfamiliar with TRC and its Calls to Action, I’ll pause to offer a little background. The TRC was established in 2008 pursuant to a settlement agreement arising from a class action initiated by survivors of Canada’s residential school system for Indigenous peoples. The class action involved was the largest in Canada’s history, reflecting the magnitude of its subject matter:
For over 150 years, residential schools operated in Canada. Over 150,000 children attended these schools. Many never returned. Often underfunded and overcrowded, these schools were used as a tool of assimilation by the Canadian state and churches. Thousands of students suffered physical and sexual abuse. All suffered from loneliness and a longing to be home with their families. The damages inflicted by these schools continues to this day.
The TRC travelled across Canada for six years and heard from more than 6,000 witnesses. In 2015, it published its final report, along with 94 Calls to Action. As explained in the final report “[u]ltimately, the [TRC’s] focus on truth determination was intended to lay the foundation for the important question of reconciliation. Now that we know about residential schools and their legacy, what do we do about it?” The TRC’s Calls to Action exist within this forward-looking framework and were made by the TRC with a view to “redress[ing] the legacy of residential schools and advanc[ing] the process of Canadian reconciliation.”
Calls to Action 27 and 28 speak specifically to lawyer regulators and legal educators. Call to Action 27 calls upon the Federation of Law Societies of Canada to ensure that lawyers receive appropriate cultural competency training, while Call to Action 28 calls upon law schools in Canada to require all law students to take a course in Aboriginal people and the law. Both of these Calls reference the need for “skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.”
As Parmar observes, “[t]hese Calls unmistakably convey the need to rethink the essential knowledge base and skillsets for all legal professionals in Canada.” (P. 530.) However, notwithstanding the Calls’ references to “cultural competency training” and “intercultural competency”, Parmar cautions the legal profession against adopting a narrow and uncritical focus on cultural competence in responding to the Calls. In making this argument, she not only draws on previous scholarly work critiquing the concept of “cultural competence” but also draws out the ways in which the reconciliation context poses unique challenges.
Parmar notes that cultural competence initiatives often seek to provide skills to professionals to allow them to “be able to work more effectively with clients perceived as culturally different, or those seen as different based on gender, sexuality, religion, ability, or language.” (P. 533.) While such skills are important for lawyers, Parmar cautions that it is also important that lawyers “also learn to recognize that reconciliation is not a diversity initiative.” (P. 535.) What is required in the context of TRC Calls to Action and the broader context of reconciliation is something much more profound: “acknowledgement of the foundational violence of colonialism that has shaped Canada, Canadian law, and Canadians,” as well as “explicit acknowledgement of Indigenous peoples as the first peoples of Canada, whose rights are specifically recognized in the Canadian Constitution.” (P. 535.) Parmar observes that “[r]ecognition of this difference and knowledge of the legacies of Canada’s colonial history has to be part of appropriate training required for lawyers in the context of reconciliation.” (P. 536.) In other words, in this context, lawyer competence cannot simply entail having a requisite knowledge of Canadian law along with the communication skills necessary to transmit this knowledge to Indigenous peoples. Something more is required.
Parmar observes that “[c]onversations about cultural competence for lawyers are attentive to cultural differences between lawyers and clients but imagine a single legal world” and that this reductive perspective generates a tension given the reality that “Indigenous laws are alive in Canada.” The risk here is that cultural competence efforts will disregard Indigenous laws by characterizing the lawyer-client “encounter only as one between ‘law’ and ‘culture’”:
This is the violence that is often enabled by the very law the lawyer is expected to translate an Indigenous client’s claim into. A lawyer who recognizes this violence and takes reconciliation seriously will also see the encounters between lawyers and clients as encounters between different legal worlds. (P. 546.)
One of the most significant parts of Parmar’s article are her efforts to chart a path towards a broader conversation about accountability in the context of competence and ethical practice of law in Canada through presenting two forward-looking ideas.
The first idea presented is for “all [Canadian] lawyers [to] be trained to understand the relevance of Indigenous laws and epistemology not only to substantive legal claims Indigenous people pursue, but also to the professional relationships between legal professionals and Indigenous peoples and to the ethical practice of law more broadly.” (P. 528.) She observes that “[t]he legal profession can only be enriched by seeking out ways in which Indigenous epistemologies might inform the ethical practice of law and ideas of professionalism,” noting, for example, that “by drawing on multiple legal traditions we may reconceptualise effective, competent representation, the lawyer-client relationship, conceptions of confidentiality, and even ideas of who one’s client is (an issue that comes up for lawyers working with communities) in ways that enable, rather than hinder, access to justice.” (Pp. 550-51.)
Second, Parmar suggests that lawyers must “take seriously their role as translators across legal worlds and train to be ethical translators.” She notes that access to justice for Indigenous peoples requires recognition of
. . . the mistranslation of their claims, sometimes by well-intentioned lawyers and judges who may otherwise be committed to ensuring justice. It is important to understand however, that the issue of mistranslation is not only one of linguistics and cross-cultural communication emphasized in the cultural competence approach, but also of failures in conceptual translation across legal systems. (Pp. 554-55.)
Underlying both of these proposals is a commitment to accountability. The focus is shifted away a notion of competence rooted in learning about others and towards a fundamental re-assessment of dominant notions about ethical practice and the lawyering role, and their historical and ongoing connections to colonialism.
In sum, in “Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence,” Parmar presents readers with a deeply thoughtful and engaging critique of the Canadian legal profession’s turn to cultural competence in response to the TRC’s Calls to Action. For Canadian lawyers, law societies and legal educators, Parmar’s article is essential reading. As Senator Murray Sinclair, who served as Chief Commissioner of the TRC, has written, “lawmakers, judges and lawyers are the gatekeepers to the justice system. Until they understand the truth of our history and their role in making change, our country will not be able to move forward.” For those outside of Canada, this article introduces important insights about the limits of cultural competence, including the complexities attendant in evoking cultural difference and the dangers of individualist approaches to it, which all lawyers who confront questions about ethical lawyering in contexts imbued with historical, and ongoing, colonialism and systemic racism ought to think about.
In the wake of the killing of George Floyd, many U.S. law schools published messages supporting social justice and anti-racism, including promoting the role of law schools in educating students to become agents for change. These statements were generally outward-facing, aimed at addressing the experiences of people of color in communities and organizations outside of the schools. But internally, law schools reflect the racial and gender hierarchies permeating the legal profession and society generally, and this in turn frames their role in shaping future lawyers’ perceptions about who belongs in the legal profession. The faculty exerts an overarching influence on this question of belonging both through its own composition and in the language and agenda communicated through teaching.
Meera Deo explores these dynamics in her book, Unequal Profession, which focuses on women of color law professors. By capturing the voices of this particular group of law professors and contextualizing them in an organizational and comparative context, the book makes a crucial contribution to understanding the divide between the experiences and career paths characteristic of women of color and those of their colleagues.
It is among women of color that the effects of structural racism are most acutely felt, and where being a member of an elite organization does not offset being “othered.” Women of color are “doubly marginalized;” Deo uses the term “raceXgender” to indicate intersectionality, or the “compound effects often caused by holding multiple devalued identity characteristics.” (P. 8.) “Compound” is the operative word here, signifying the magnification that is at the heart of intersectionality.
Deo, a sociolegal scholar, draws on in-depth interviews with 63 women of color law professors selected to “reflect diversity in a number of domains, including race/ethnicity, age, tenure status, leadership status, public vs. private institution, selectivity of institution, and region.” (P. 172.) When Deo began gathering data, nearly 80% of the 9,759 law faculty occupying positions of tenured, tenure-track, clinical, deans, associate and vice deans at ABA-approved law schools identified as Caucasian; women of color represented 9.6% of the group, white women 32% and men of color 9.4%. In the course of her research, she interviewed nearly 7% of women of color in this pool of law faculty, and attempted to include individuals from different vantage points of race, ethnicity and other individual and school-level characteristics in order to “include appropriate numbers from each group to ensure a diverse range of opinions in the final study.” (P. 172.) Her work is enhanced by its comparative framework, offered through additional interviews with 11 men of color, 11 white women and 8 white men. (Table 1, P. 10.) These permit readers to consider what Kimberlé Crenshaw has described as “all of the ways our systems reproduce these inequalities, and that includes the privileges as well as the harms” – meaning expanding attention beyond “unfair exclusion but also [to] . . . unearned inclusion.”
Deo’s interviews inform an analysis of the hiring and entry process, issues related to collegiality, relationships with students, tenure and promotion, leadership and work/life balance. I’ll offer just a couple of examples in an attempt to highlight the richness of the book.
In the context of hiring, experiences were in line with findings from other settings, with women of color describing being perceived as “a political – not an academic – appointment” (P. 23.) and as “the ‘dumb one,’ sort of an affirmative action hire in the worst sense of the word [meaning . . . unqualified, but hired because of . . . race and gender].” (P. 24.) One of these women saw her new colleagues shower favoritism on a white male hired at the same time; Deo describes this informant “internaliz[ing] her colleagues’ intersectional discrimination until she too ‘felt like he was the real deal, and I’m not.’” (P. 24.) While these experiences did not necessarily upend the careers of Deo’s informants, they tainted their perceptions, even forcing them to question whether it was worthwhile to remain in academia. (P. 46.)
In a chapter on relationships with students, Deo’s interviewees highlight a number of common challenges, including being “overburdened by service” to the law school and particularly to students, on one hand, but also experiencing “open hostility and even gender-based physical intimidation at the hands of white male students” on the other hand. (Pp. 58-59, 64.)
Overburdening in this context reflects that women of color faculty are wanted by law students as mentors and advisors, even when they do not share a classroom relationship. (P. 59.) One interviewee described being sought out by students who “likely . . . ‘feel comfortable and they seek my help,’” which she attributed to her approach in class of addressing “real-life legal implications of the law [as well as] relevant context . . . of substantive law through diversity discussions.” (P. 59.) Overburdening is common for women of color (and women generally) in other contexts, too. And while “[a] small percentage of men of color share the experience of their female counterparts of being inundated by student requests . . . . [,] most men in the . . . sample do not.” (Pp. 72-73.)
Hostility, on the other hand, reflects the mismatch of students’ expectations and reality. As one of Deo’s informants described, students’ “’image is the white male professor who scares them, and that’s just not a model that I can follow. Not being a white male, and not really being privileged enough to be able to scare them.’” (P. 60.) This mismatch sometimes led to open hostility in the classroom, which bled over into teaching evaluations, too. (Pp. 61, 69-70.) In contrast, for white male faculty the challenge was limited to “mastering the material, not fighting to earn [students’] respect.” (P. 74.) This divide is nicely captured in an explanation of the difference in how two professors – one a women of color and the other a white man –responded when a student poses a complicated question in class. The woman of color offered an in-depth and complex response to the student, while the white male colleague indicated he would have said “’I don’t know, I’m going to have to get back to you on that,’ which [the black female law professor interviewee explained as] the privilege of being a white man; you can say, ‘I don’t know,’ and it’s not going to damn you to being the ignorant law professor. But I don’t have that privilege.” (P. 74.)
In exploring the topic of collegiality, Deo unpacks various ways in which white male privilege leads to silencing and invisibility for women of color. These include mansplaining (“[w]hen men take it upon themselves to interpret for women or explain to women, [indicating their assumption] that a woman is simply ‘an empty vessel to be filled with their wisdom and knowledge’”), hepeating (“when a man simply repeats what a woman has already said, claiming and accepting credit for her original thoughts and words”) and whitesplaining (signaling that “[w]hite validation of [the] suggestions or observations [of a woman of color] would give them more weight, highlighting ongoing white privilege”). The combined effect of these tactics conveys the message that “women do not belong, should know their place, and remain silent.” (P. 45.)
It is no wonder, then, that in this climate Deo’s interviewees describe feeling the need to “suppress their emotions at work to succeed.” (P. 47.) But it isn’t only emotions that they must suppress. They described having to present themselves to colleagues and students as synced with the norms of the law school and their roles there, despite the fact that these felt foreign and in conflict with their experiences. (Pp. 47-48.) These descriptions are consistent with other research on women in the legal profession, including Joyce Sterling and Linda Chanow’s exploration of why women leave practice. A Black female lawyer explained to Sterling and Chanow that she had to conform to white culture by being more open about her experiences and background in order to be accepted enough to advance in her firm. Tsedale Melaku describes this sort of pretense and transformation as part of the concept of an “inclusion tax,” meaning “the additional resources black women are forced to ‘spend’ such as time, money, and emotional and mental energy to be included in white spaces.”
Deo tries to leave her readers with some hope for the future, including through a discussion of the importance of mentors and supportive professional networks, two factors that were mentioned repeatedly by her informants as having enormous consequence. In addition, she stresses the importance of intentional and focused action by law school deans and other leaders to create awareness of the effects of existing policies and practices. Deo’s book is one part of the growing body of research and reporting on race and gender in the US, and by focusing exclusively on law faculty – and specifically on those in power in the hierarchical structure of legal education (and higher education generally) – she has positioned this book as a foundation for law faculties to consider how their histories, policies and structures marginalize and exclude. Unequal Profession elucidates that even as law schools aim to promote justice and equality in other contexts, there is much work to do internally to reach these goals.
In Regulating Mass Prosecution, Irene Joe seeks to shift the framework for assessing the causes of and solutions to mass incarceration, by spotlighting the role of prosecutors and their ethical duties to maintain fairness, loyalty, and competence. The core thrust of Joe’s argument is that prosecutors should be understood to have ethical limits on the pursuit of charges against defendants based on the systemic impact of charging decisions in producing public defender case overload. Moving beyond well-rehearsed arguments about the prosecutor’s duty to seek “justice,” Joe adopts a systematic ethical approach, focusing on the “role that the prosecutor plays in creating” the caseload crisis (P. 1183). She thereby makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.” (P. 1184.) Having made this link, she then turns to the ethics rules as “a sword and a shield for reformist prosecutors to use in addressing the caseload crisis in indigent defense.” (P. 1184.)
In her ethics analysis, Joe is mindful of the deeply complex nature of the prosecutor’s charging decision: an exercise of discretion in which the prosecutor determines to pursue charges supported by probable cause. As Joe points out, in making this decision, a prosecutor is generally motivated to act by the duty to advance the interests of justice, but other factors sometimes creep in, such as implicit bias or the prosecutor’s self-interest in achieving a high “win” rate or currying favor with the judge. Where Joe fundamentally departs from convention is by showing how individual charging decisions permit prosecutors to shape “the size and scope of the criminal justice system,” thereby placing the public defender in a “reactive” posture, unable to adequately control his or her caseload—and thus undermining defendants’ access to justice. Joe recognizes, of course, that prosecutors do not deal exclusively with public defenders, whose work focuses on the representation of indigent defendants constitutionally entitled to counsel. What Joe wants us to appreciate is that prosecutorial discretion, by affecting the aggregate number of cases in the system, has particular impacts on the caseloads of public defenders, who must take cases assigned to them in this expanding system and are heavily overburdened.
Most significantly, Joe argues that these problems create ethical concerns for the prosecutor: namely, that by bringing charges, prosecutors are contributing to the ethics violations of public defenders. In addition, Joe suggests that prosecutors may also violate a host of other rules, including those requiring fairness to opposing counsel (Rule 3.4), since a “charge practice that overwhelms the public defender risks violating this rule and the rationale that lawyers should not seek every advantage regardless of the impact on the opposing counsel.” (P. 1215.) This is no trifling argument. Rather, it is a significant reconceptualization of prosecutorial role, pushing for creative interpretations of the rules to make them do more work for systemic reform. In this vein, Joe pushes the rules even further, suggesting that the prosecutor’s own self-interest in winning cases could produce a loyalty violation: “If a prosecutor knows that charging a high number of cases will render a public defender little more than a plea machine, then the charging practice could be the result of self-interest as guilty pleas result in convictions.” (P. 1221.)
This is an important scholarly turn, in which Joe seeks to take seriously the fact that all of the rules apply to prosecutors, and to use that fact to force prosecutors to look at the degree to which their charging practice produces overload. To define what overload means, Joe suggests using as a benchmark the ABA’s existing metrics for determining appropriate caseloads, asserting that if charging decisions force public defenders to exceeding that level, prosecutors have a duty to stop. Her most provocative argument is that there is “a very real possibility that, under Model Rule 8.4, a prosecutor may be culpable for knowingly assisting or inducing public defenders to commit rules violations.” (P. 1232.) Mind you, this is a novel, dare I say, radical interpretation, which has not been entertained by bar discipline committees or courts. But that is precisely what makes it so interesting and powerful.
This piece, which seeks to shift the responsibility for dealing with defender overload (at least in part) out of the political arena, raises significant questions that demand serious attention. For instance, how would this new approach to prosecutor ethics be operationalized? Since nearly all public defenders are overloaded, would Joe’s proposal require every charging decision to be scrutinized by bar disciplinary committees in order to assess whether and how they contribute to defender case overload? In developing Joe’s proposal, it is important to consider how charging decisions would be monitored in a comprehensive manner.
Joe’s proposal also raises thorny questions about the relationship between the prosecutor’s ethical violations and those of public defenders themselves. Specifically, Joe presumes that the prosecutor is vulnerable to disciplinary charges precisely because public defenders are committing their own rule violations as a result of overload. This leads to one to wonder: If bars were going to go after prosecutors under the theory that Joe prescribes, would they also have to start disciplining the public defenders as well?
There are other important, unresolved ethics issues. If prosecutors decided against bringing charges in order to avoid contributing to case overload, could they be vulnerable to ethics violations for not pursuing charges against defendants who deserved to be prosecuted? Joe’s overarching response to these operational issues is to suggest that prosecutors realign charging to target the most serious crimes and promote community interests. (P. 1241.) This, she suggests, would reduce the overall footprint of prosecutors’ offices in ways that would ameliorate the overload problem and permit defenders to provide the effective assistance of counsel to which they are professionally and constitutionally bound.
At bottom, in this moment of political uprising and calls for transformative change, Joe’s analysis provides a clarion call for major reform. With the no indictments issued in the Breonna Taylor case, prosecutorial discretion is back at the center of debate about racial justice in the criminal system and Joe’s article reminds us that unchecked discretion may continue to produce significant harms to the subjects of criminal prosecution who are disproportionately low-income and people of color. Significantly, Joe is asking bar associations to think of their rule enforcement in structural terms and push forward an agenda that addresses massive, ongoing unfairness in the criminal justice system. Of course, her preferred solution would be a reduction in the footprint of policing and prosecution, and adequate funding for defenders to provide effective assistance of course. However, if legislatures around the country will not devote more money to adequately fund defender officers, she asks the profession itself to step into a vanguard role. Of course, this may itself be a provocation: the threat of ethics prosecution of prosecutors may spur defender funding to avoid that outcome. In that sense, the central contribution is to open up a debate around how prosecutors might be responsible for defender ethics violations in ways that may jumpstart discussion within the bar toward a more collective response. In this sense, the article offers not simply a novel ethics diagnosis and prescription. It asks all lawyers to contribute to criminal justice reform with anti-racist consequences.
Bruce A. Green, Bar Authorities and Prosecutors
, Oxford Press Handbook of Prosecutors and Prosecutions
(Ronald F. Wright, Kay L. Levine, and Russell M. Gold eds., 2020), available at SSRN
Bruce Green’s new book chapter explores the regulation of prosecutors in the United States. It convincingly argues that, although the ABA Model Rules of Professional Conduct (“Rules”), as adopted by the various states, formally apply to all lawyers, they have little practical impact on prosecutors’ practice.
The Rules have limited practical significance for prosecutors for three related reasons. First, many of the Rules do not apply to prosecutors’ practice realities. Some of the inapplicable Rules are intuitive. For example, Rule 1.5 can’t apply to prosecutors because prosecutors do not charge clients fees, and Rules 7.1-7.3 do not apply because prosecutors neither advertise not solicit for their services. Professor Green establishes in a fascinating section, however, that even Rules that could apply to prosecutors, such as Rule 1.6 (confidentiality), Rules 1.7-1.10 (conflicts of interest) and Rule 1.1 (competence) have been construed narrowly and generically to mirror other obligations that apply to prosecutors such as criminal procedure rules. Second, Rules that do directly apply to prosecutors’ practice, such as Rule 3.8 on prosecutors’ special responsibilities, and Rule 4.2, which forbids lawyers from communicating directly with represented individuals, have been construed narrowly to merely codify prosecutors’ constitutional obligations. The third and final problem is one of enforcement. The Rules are hardly enforced against prosecutors—giving these lawyers particularly wide berth.
Amid the ongoing trend of increased lawyer specialization, some have called on bar authorities to abandon their current one-size-fits-all regulatory approach and instead develop separate codes of conduct for lawyers in different specialized areas of practice. Indeed, prosecutors are likely the prime candidates for such specialized regulation. Not only are they “ministers of justice” and not mere advocates (see, Rule 3.8 cmt. 1), but they are generally not subject to demanding market and institutional controls. As Green astutely puts it, “[p]rosecutors do not interact with, advise or take direction from, an individual client or a representative of an institutional client.” (P. 7.) And yet, bar authorities insist on preserving the myth of the “unified bar.” Even in the face of external public pressure and critiques of prosecutorial misconduct, the ABA, committed to representing and serving all lawyers (including prosecutors), ended up deciding to avoid an internal battle with a powerful constituent and opted for a conciliatory tone vis-à-vis prosecutors. This results in what Green aptly calls the unfulfilled regulatory promise of the bar: although the ABA has acknowledged that the normative expectations for prosecutors should be more demanding than that of other attorneys, its Rules fail to deliver on this expectation leaving prosecutors underregulated.
Moreover, Professor Green shows that on the rare occasions in which the ABA and bar authorities have tried to promulgate more stringent Rules for prosecutors, they have been repeatedly stymied. In particular, they have run up against effective opposition by federal and state prosecutors, which demonstrates the bar’s limited political influence, and further explains its reluctance to pick up a fight with prosecutors.
Bar Authorities and Prosecutors is a fantastic primer on attorney regulation and will be of great interest not only to prosecutors, defense counsel and judges but also to anyone interested in the effective regulation of the legal profession. Professor Green’s insightful analysis of the regulation of prosecutors raises broad and fundamental questions about the future of attorney regulation, and, in particular, about the dominant role of the ABA in promulgating the Rules. To begin with, the ABA’s insistence on a one-size-fits-all regulatory approach in the face of increased specialization may result in the under-regulation of lawyers. Simply put, having the same set of rules apply to all lawyers may practically mean that the Rules end up being too abstract and inapplicable to the practice realities of most lawyers, prosecutors included. There are, to be sure, compelling arguments in favor of a unified regulatory approach, including clarity, certainty, the relative ease of promulgation, and the emphasis of core professional principles. Yet Green’s analysis suggests that the day may come (or perhaps, the day has come) in which increased specialization will render the one-size-fits-all regulatory approach an outdated relic.
Next, Green’s nuanced analysis questions whether the ABA is the most effective regulator of attorney conduct. The point is not merely that the ABA serves the interests of the legal profession and, as a result, may shy away from imposing stringent regulations on its constituents. Rather, as Green compellingly shows, because the ABA purports to regulate and serve all lawyers it is bound to try to please and placate all of its members and avoid controversies or hard-to-win internal battles, especially where, as here, the regulated members are powerful and organized. Given the limited scope of his inquiry in this chapter – the regulation of prosecutors – Green wisely stops short of calling for a radical reform in terms of who regulates lawyers in the United States. Certainly, there are pertinent advantages the ABA has as the leading force in promulgating the Rules, for example, experience and expertise in regulating lawyers’ professional conduct. Nonetheless, Green’s examination of the ABA’s “unfulfilled promise” (P. 21) regarding the regulation of prosecutors raises an overdue question about the ABA’s ability to tackle significant and controversial regulatory challenges pertaining to its members.
Finally, Bar Authorities and Prosecutors sheds a revealing light on how institutions of the legal profession, such as bar associations, courts, and law firms, influence the professional work of lawyers and the regulation of law practice. Rather than focus merely on promulgation and enforcement, Green demonstrates that effective regulation (or lack thereof, in the case of prosecutors) is a function of a complex interplay of factors. These include the political power and clout of the regulatory targets, the willingness of the regulator to pick internal fights and wage external battles and its fortitude to see them through, the interaction between regulatory controls and market and institutional controls, and the size, culture and ethos of law firms (private and public) and their inclination and ability to support or undercut applicable rules.
In sum, Bruce Green’s new book chapter sets out to examine the regulation of American prosecutors (Pp. 1-2) and ends up accomplishing so much more. It effectively summarizes the regulation of prosecutors in the United States, including its shortcomings and its stickiness. The paper also examines the future of attorney regulation more generally. In the process, Green raises compelling questions about the effectiveness of the traditional one-size-fits-all regulatory approach and the dominant role of the ABA as the Rules’ promulgator, and he sketches a convincing blueprint for an effective regulatory alternative.
Cite as: Eli Wald, The Future of Attorney Regulation
(October 23, 2020) (reviewing Bruce A. Green, Bar Authorities and Prosecutors
, Oxford Press Handbook of Prosecutors and Prosecutions
(Ronald F. Wright, Kay L. Levine, and Russell M. Gold eds., 2020), available at SSRN), https://legalpro.jotwell.com/the-future-of-attorney-regulation/
I teach at a school most of whose graduates take jobs, at least for a few years, as associates in one of the 100 largest corporate law firms. Until their first stint as summer clerks, and even for some time thereafter, most of them know very little about the work firm lawyers do. Law schools don’t do much to enlighten them on these matters. Scholarly treatments of the social effects of business lawyering are rare. We have, of course, plenty of scholarship on substantive fields of business law – corporate law, tax, securities, intellectual property, and so forth. Sometimes practitioners come into our classrooms to help students understand how to structure corporate deals, such as a merger or initial public offering. These are useful forms of training, but not much help if we are trying to understand the social and economic contributions of corporate lawyers. What is their role in society? What value do they add or as their critics would ask, subtract? Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality, identifies both the positive and the negative in their work.
The business lawyers I habitually talk to tend to respond rather vaguely to questions about their social functions. They identify themselves as among the professionals in the legal-and-financial-services industry like accountants, underwriters, or insurers who provide technical services to implement business decisions and deals of their clients. “We grease the wheels of capitalism” is a common phrase, or, as a law firm partner interviewing me for a job once put it, “We are the pants pressers for American business.” This formula identifies the lawyers’ role as auxiliary to the real movers and shakers, the entrepreneurs and investment bankers and managers of capital. Other business lawyers describe their job primarily as that of risk-managers: they help their clients identify sources of “legal risk,” such as potential adverse litigation, or regulatory and tax consequences of decisions. Competent risk managers, of course, aren’t just doom-and-gloom merchants: they try to help their clients structure their dealings so as facilitate their taking “good risks” and to avoid or minimize “bad risks.” Still others – often litigators – identify corporate lawyers with the classic paradigm of the libertarian champion of the free market, or the heroic defense lawyer resisting the authoritarian state and the greedy faux-populist plaintiffs’ bar. Rather less flattering accounts are sometimes heard from businesspeople who cast lawyers as operators of a vast protection racket, creators of dense complex webs of regulation that their expensive technical skills are then required to navigate.
In 1984, Ronald Gilson made a path-breaking contribution to theorizing the social function of the work-product of business lawyers, or at least of some business lawyers, with his Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L.J. 239 (1984). He characterized the lawyers’ role in helping to structure business deals as that of “transaction cost engineers” who help to reduce the frictions of deal-making, e.g., by helping the parties to anticipate and provide for common risks and information asymmetries.
Now comes Katharina Pistor of the Columbia Law School, with a more ambitious theory. She promotes corporate lawyers from the role of helpful auxiliaries to that of masters of the “Code of Capital,” the legal modules that constitute capitalist economies and ensure their generation of wealth. “[M]ost observers treat law as a sideshow when in fact it is the very cloth from which capital is cut.” (P. 4.) Assets are turned into capital by legal coding, which confers on it the four attributes of priority, durability, universality, and convertibility. A legal claim that has priority is one that trumps others, such as priority in bankruptcy. Durability is the extension of priority claims in time, such as was conferred on landed wealth when it was protected by mortgage law and settlements in trust from being fully lost to creditors, or is now possessed by corporate owners with immortal life. Universality means rights against all the world. And convertibility is the legal guarantee that an asset can readily be turned into money. “There is no capital without law, because only law can bestow priority, durability, convertibility, and universality on assets, and thereby privilege its holders.” (P. 229.) Corporate law practice – some of it, anyway – is the business of combining and recombining these modules to create wealth and shield it from diminution – as, for example, corporation law is used to parcel assets and operations of an integrated economic entity in ways that lower the cost of debt finance, and minimize taxes and regulatory costs. (P. 47.)
Pistor’s account of legal coding relies on a rich store of examples taken both from history and from current practice. Her story of how land became the most important source of wealth in England focuses on the enclosure of common fields and the “strict settlement” devised by English country solicitors to protect these newly privatized assets from creditors. The sequel is the “second enclosure movement” in modern intellectual property law, the enterprise to convert knowledge and even Nature herself into capital assets. Her chapter on the legal alchemy that mints debt into capital assets starts with the scheme to securitize the debts of Junker landowners under Frederick the Great. Landowners joined the Landschaft, an association that assumed joint liability for payment of debts, and in return got certificates they could use to pay off debts to other creditors, backed by a guarantee from the King. (P. 93.) She then updates her principal thesis with detailed recent examples. One is Lehman Brothers, which created a huge number of special purpose sub-entities. These vehicles incurred debt, which the parent company guaranteed, using as collateral the shares it held in leveraged subsidiaries. The subs moved most profits back to the parent, leaving few assets for creditors. When Lehman went bankrupt, the guarantees disappeared, and the subs collapsed. The examples show how lawyers combine the modules – property law (rights to land and mortgages) and corporate law to partition assets, contract law to divide up the pool and sell different pieces to different investors. (P. 86.)
The next move for legal coders Pistor describes is going global. To simplify considerably, private parties can frequently minimize or escape states’ regulatory or taxing constraints by choosing their own law. Conflict-of-law rules generally allow sophisticated parties to specify what law will govern their deals, and most of them choose either New York or England. They may also choose tribunals, and many of them choose arbitration over adjudication, or investor-state dispute settlement tribunals outside their territories. (Ch. 6). If states impose regulatory restrictions, like labor or environmental or tax laws, coders just move the enterprise to a more favorable jurisdiction. (P. 160.)
As the operations of the legal code of capital create wealth for some, they also produce inequality. See, again, enclosure laws, which made it possible for landowners to finance improvements and speculative investments by borrowing against their land but also displaced and impoverished millions of commoners, who fled to America or Australia or to the slums and factories of the cities, or simply starved. Or, our IP laws permit pharmaceutical companies to develop drugs with the aid of taxpayer-financed research, patent them, and charge monopoly rents to health providers and consumers. The banks that securitized the mortgages of homeowners and sold them off in tranches to investors while taking extravagant fees for every transaction, left the owners with collapsed home values – and also made it so that the owners were still liable on their notes and subject to foreclosure. As Pistor says, supposedly negative rights against the state are actually “a claim for positive protection by the state against intrusion by others, including fellow citizens.” (P. 229.) Ordinary contract law is a mechanism whereby the strong can not only coerce the weak to surrender their rights, but also characterize the surrender as a voluntary choice that the weak have made, and the strong can pretend to disclose all possible risks so that suckers cannot claim they didn’t know about them. Besides these inequalities conferred by the general law, the well-heeled repeat players have exceptional access to lawyers, legal processes like litigation and arbitration and, not least, political influence. Some lawyers like to claim that they defend clients against state tyranny. But in fact much more lawyers’, and lobbyists, effort goes into seeking favors from the state: subsidies, privileges, contracts, exemptions from or limits on liability, and safe harbors from bankruptcy. Besides creating inequality, the coding of capital tends to create periodic crises, as speculative bubbles burst and optimistic predictions that property values will always keep rising or that emerging economies will not all go broke at once are falsified. But holders of the most privileged assets can usually count on the state to bail them out if the entire system is in peril of collapse. Gains are privatized, losses socialized.
Pistor’s account of the centrality of law and lawyers to wealth creation is a departure from standard economists’ accounts, which as she says treat law as a “sideshow.” It is closer to, but also different from, standard Marxist accounts, in which law is treated as epiphenomenal, part of the “superstructure” or “ideological state apparatus,” supporting and legitimating the ruling classes that control the means of production. The tradition to which Pistor’s work belongs is that of Karl Polanyi and, as she acknowledges, the early institutionalist schools of Thorstein Veblen and John Commons (I would add a Columbia Law School predecessor of hers, the lawyer-economist Robert L. Hale). The social divide is not between capital and labor, but between the holders of privileged assets protected by the code, and everyone else. And the centrally important players in the system are lawyers – specifically the partners of the largest law firms, most of them in the U.S. and England. These modestly pretend to the be valets of their corporate clients, but are actually the “masters of the code,” because they are or have been its architects, its curators, its innovators who ceaselessly extend its modules to create novel forms of capital
This book is a powerful – and brilliantly illuminating – study of the social effects of corporate lawyering. In a couple of respects it could be improved. First, it has surprisingly little to say about the classic subject of Marxist analysis, the legal mechanisms that have been used to elevate the rights of capital over those of labor. Some of these are wonderful examples of adaptation-by-analogy of code modules, such as the way in which late nineteenth-century courts transformed management’s rights to future income streams from contractual relations with customers into property, protectible by injunctions enforced with criminal contempt sanctions against striking or picketing workers. The likely, if depressing, explanation for this omission is that labor has now been so cowed into submission (at least in the U.S., less so in Canada and Europe) by the weakening of labor law, the outsourcing of work to low-wage, low-labor-protected countries, and above all, by the evaporation of the credible threat to foment socialist revolution, that it simply no longer poses much of a challenge to the owners of capital. Second, the monograph doesn’t always distinguish between the inequality-producing effects of what have become the routine operations of the private law code of property-contract-trust-bankruptcy law, and the additional inequalities produced by aggressive rent-seeking. Lawyers and others press legislators and regulators to bestow ad hoc special privileges – in addition to the almost-invisible privileges conferred by ordinary private-law rules – on classes of capital assets and their holders.
Now, as Pistor repeatedly emphasizes, capital does not always win its legal battles. Sometimes countervailing interests actually secure a favorable judicial ruling or legislative victory. Workers may assert a property in their own reliance-based expectations to future income. Scientists may try to protect commons in discovery or resist attempts to patent genes. Indigenous peoples may claim traditional land rights against developers. Tax reformers may lobby for more progressive tax schedules. These are uphill battles, however, since capital holders can often work around democratic constraints by relocating to friendlier venues as well as by deploying lawyers to loophole regulations into nullities. Pistor runs rapidly through a list of possible directions for reform (see generally Ch. 9): limiting the legal choices available to capital, granting special protection to neglected assets and their holders, and refusing to grant special exemptions and preferences. She urges more skepticism about claims that special privileges, like drug patents, will benefit everyone. She proposes changes in the conflicts-of-laws rules to limit parties’ ability to choose governing law. She endorses limits on the use of arbitration in cases of major social concern, or between unequal parties. She proposes legal mechanisms, such as compensation schemes or class actions, to “give voice to those who have most to lose in a crisis.” (P. 227.) She proposes more cooperation between countries to rein in the excesses of regulatory and tax arbitrage.
And finally – and perhaps her most important challenge to law teachers – she teases with the possibility of building a new profession of corporate lawyers, rethinking the funding of legal education, and the economics of law practice, to reduce incentives for lawyer to be servants of the code. (Pp. 228-29.) This was the challenge taken up by many professionals during the last great movements for reform of the code of capital and the devising of new careers for reformers, the Progressive movements of the early 20th century culminating in the New Deal. This is the challenge that lawyers associated with the Law and Political Economy movement are beginning to theorize. What jobs, what institutional practice settings, what careers, could be devised to support this new profession? Those of us who study the profession and educate its future members need to take up this challenge as well.