When Stephen Vaughan and Emma Oakley interviewed 57 lawyers in elite London firms, they were struck by a general ethical apathy. They explore this apathy in their well-known article, “Gorilla Exceptions” and the Ethically Apathetic Corporate Lawyer, and conclude that a strong justification for this apathy, in the minds of the lawyers interviewed, is the standard conception of legal ethics. The standard conception excuses lawyers from moral accountability for clients’ actions, holding that it is not the role of lawyers to judge the morality (as opposed to the legality) of clients’ actions. For the lawyers interviewed this justification, invoked most commonly in relation to criminal defence lawyers litigating within the confines of the adversary system, held, even though most if not all of them were engaged in transnational legal work, the consequences of which have effect across the world.
Cesar Arjona’s article, The Usage of What Country: A Critical Analysis of Legal Ethics in Transnational Legal Practice, questions whether the standard conception holds up in relation to transnational legal work. You may think you’ve heard all there is to hear about the standard conception, but I urge you to read Ajona’s article. He revisits the constitutive assumptions of the standard conception and asks whether those assumptions remain valid when applied to transnational practice. Spoiler, they don’t.
The three assumptions Arjona considers are:
- A lawyer is the agent of a client-principal, both of whom are acting as “individual free moral agents.”
- The lawyer is “an advocate in an adversarial context.” Arjona allows that defenders of the standard conception see it extending beyond the litigation context, but he reminds us that this extension “implies the existence of a well-functioning rule of law system.”
- A reasonably well-functioning domestic rule of law system. Arjona notes that the vast majority of literature on legal ethics “is produced in countries that count themselves liberal democracies, [and that] such literature assumes the natural context for lawyers to work in a liberal democracy with rule of law and its concomitant features.”
Arjona examines these assumptions using as an example the Baku Tbilisi Ceyhan (BTC) pipeline, which was designed, built and then operated by an international consortium of energy companies. The pipeline carries oil more than 1,000 miles, across Azerbaijan, Georgia and Turkey, each country agreeing to the free passage of the pipeline under a series of agreements and an inter-governmental treaty. The legal structure underpinning the pipeline was created by private transnational lawyers, the leading firm of which represented the main corporate investor. The final legal structure gave remarkable entitlements to the consortium, while raising serious concerns about human rights, environmental protection, and state sovereignty (Ajona footnotes Abigail Reyes’ article Protecting the Freedom of Transit of Petroleum: International Lawyers Making (up) International Law in the Caspian, which explores these concerns in depth).
While Arjona explores in detail each assumption underpinning the standard conception, it is the third I want to highlight here. Recent versions of the standard conception justify role-differentiated morality on the basis that it is the role of the legislature, not the lawyer, to weigh competing moral interests and then make laws accordingly. But this assumption falls away when the lawyer is operating in jurisdictions where the rule of law does not operate robustly. Thus, lawyers involved in a project such as the BTC pipeline cannot adopt the standard conception “as a justificatory model when the basic elements of the rule of law are so severely compromised.” Instead, “in the absence of a clear rule of law system, one of the basic foundations of amorality collapses,” and therefore both client and lawyer are morally responsible for the client’s actions.
Simon Rice and I argued in Our Common Future: The Imperative For Contextual Ethics In A Connected World that in the absence of a domestic rule of law system of reference, lawyers must take into account the broader context of their legal work, including how that work affects those whose interests are adversely affected by it. Further, that it is incumbent on transnational lawyers to discuss those other interests with their clients, bringing competing values to the client’s attention. Arjona agrees that context is key, but, rightly in my view, critiques what he calls “the stakeholder approach”, in which lawyers themselves reflect on and discuss with clients the potential impact on others of the client’s instructions. Noting that global lawyers operate in “a messy world of legal pluralism,” that is full of “voids, ambiguities and contradictions . . . a legal wild west”, he sees the stakeholder approach as raising practical issues that, “in the sort of complex cases that transactional lawyers frequently confront, become virtually intractable.” In the BTC case, for example, “stakeholders” would have included governing elites, communities in different states along the pipeline route, workers (both national and foreign), neighbouring countries, the environment, consumers of oil and gas, future generations etc; in sum “a plethora of publics” with differing and sometimes opposing interests”.
Arjona does not offer either specific advice to lawyers on how they should operate in cases such as BTC, nor an alternative theory for the context of global practice. He considers though, that “the building of an alternative theory is certainly an important and urgent project.” Of course, much fine work has been done on alternatives to the standard conception within a rule of law system, which will offer insights for global practice. But, while Arjona does not offer solutions, his step by step demolition of the standard conception in the context of transnational practice is important. As Vaughan and Oakley’s work shows, lawyers practising across borders justify their ethical apathy by reference to the standard conception. Removing the “amorality shield” of the standard conception means that global lawyers will need to grapple with the fact that, outside of the rule of law system, and just like other professionals, they “are morally responsible for the interests they put their expertise at the disposal of, and for the kinds of arrangements they legitimize through such expertise.”
For many—perhaps most—law students, law school is hard and stressful; legal practice is similarly experienced by many lawyers. The stress of these environments can act as an incubator for mental health problems, which often are buried by lawyers and law students, occasionally surfacing in stories of anxiety, substance abuse, addiction, depression and suicide, among other things. At the same time, however, law students report high levels of satisfaction with law school and their career decision, as do lawyers, which complicates understanding the mental health trend. This paradox calls for new thinking about mental illness in law school and the profession, which Kathryne Young’s article, Understanding the Social and Cognitive Processes in Law School That Create Unhealthy Lawyers (Understanding Unhealthy Lawyers), pursues. It offers a different lens for understanding these issues by directing attention to how the organizational policies and structure of legal education negatively impact law students’ well-being and, ultimately, their mental health.
Young is particularly well qualified to address this topic, having written a popular book on law student happiness (How to be Sort of Happy in Law School (2018)). But while the book is a how-to for students, Understanding Unhealthy Lawyers frames the wellness and mental health problem in relation to the organizational structure of law school, and invites law schools and faculty members to reconsider certain longstanding and widespread policies and practices in legal education.
Young was interested in exploring the “nuts-and-bolts processes” that are reflected in changes in students’ motivations, hopefulness, happiness and overall mental health during law school. To learn about these, she conducted interviews with 53 law students (each interviewed twice) at 36 law schools during the first weeks of the 2020-2021 academic year: one interview occurred just before students began their first semester, and the second was about 3 to 6 weeks into the first term. Interviewees attended a wide range of law schools that varied in terms of location, ranking, and affiliation (public, private, religious). They included 37 women, 16 men, 28 identifying as White and 25 as non-White.
The interviews highlighted several common features of law school that shaped students’ early perceptions of fit, fairness, support and equality, among other things, and contributed to professional identity and “unhealthy professional development.” These include processes that shape interactions within and outside of classrooms and enable relationships to develop among classmates and with law school faculty and staff. Young found that students assimilate at least three lessons early in their law school experiences, each of which she sees as part of a “seed[ing] of unhappiness, poor mental health, inequality, professional dissatisfaction, and other problems that plague practicing attorneys [and] are sown in law school.”
First, the interviews offered insight into the ways students make sense of their experiences, or as the case may be, fail to make sense of them in contexts that merge law school and the outside world. For example, as students began the school year, the country was still reeling from summer protests over the murder of George Floyd, spotlighting unaccountable policing and racial injustice. Meanwhile, almost as soon as classes began, Justice Ruth Bader Ginsberg’s death and the ensuing political battle over the resulting vacancy captured public attention. Nevertheless, for most interviewees, these outside-of-law-school events remained outside of their formal learning in classrooms—a disconnection that Young points to as reinforcing a conception of professional identity as distinct from, and even in contrast to, personal identity.
Second, the interviews revealed how the mandatory curve used by nearly all US law schools creates dissonance for students, clashing with messages from law faculty and administrators about the importance of collaboration and supportiveness. Young’s interviewees explained that the curve contributed to their “developing a ‘public face’ in which they encouraged their peers and a more ‘private face’ in which they constantly evaluated themselves against their peers . . . .” One student described that she felt “almost excited when people get things wrong,” recognizing that this is “not . . . normal” and that it reflected her wanting to be “above the curve” although that was not her typical approach, admitting “I would never . . . want people to get things wrong.” Young relates these conflicts to the idea of self-efficacy: that students “have the ability to exert control over outcomes—[which] is significantly diminished when grades are curved.” The decline in self-efficacy means that “instead of concentrating on their own understanding [students] found themselves concentrating on how ‘smart’ other people seemed and evaluating themselves in relation.” Young describes self-efficacy as a positive quality for lawyers: it helps with learning, which is important throughout a lawyer’s career, and helps keep various mental health issues at bay. At the same time, she suggests, the curve interferes with students’ ability to develop and maintain self-efficacy during law school, setting them up for persistent challenges once they graduate.
Third, norms of classroom interaction set the ground rules by which students build reputations and relationships with classmates and faculty. However, these norms are not always transparent and perceptions of norms differed along lines of race and gender, as students tried to make sense of their classroom experiences. A description by one student, Xavier, of the way Socratic questioning unfolded in class was jarringly astute:
It’s kind of weird. Because it’s like—it’s a game show. You know, there’s the raise hand function [on Zoom], right? So there’s a professor, like before she even finishes asking the question—if she says something remotely sounding like a question, people start raising their hand[s]. . . . Somebody, let’s say somebody gets cold-called, and they’re having a tough, tough time. Like some guy raises their hand during the cold call.
This description, equally relevant to upper-level classes, shows how a basic student goal—to be recognized as contributing positively—comes to be seen as a competition, but not one in which all participants feel equally comfortable. In this regard, Young found that students’ perceptions split around race: while none of the White men in her study complained about this classroom dynamic, respondents who were not White men described it as “extremely rude.”
These different perceptions reflect both the particular culture of law school and the different ways it is perceived and experienced by different students. The rules of the law school game—from classroom interaction to what is recognized as relevant to the imposition of a mandatory grading curve—do not fall uniformly on students. To the contrary, race and gender, career goals and family background all play a role in how these typical practices and policies are experienced, and this list likely could be expanded to include national status, as well. Overall, Young found that as students struggle to understand law school in their first few weeks, they also struggle to find their place in this complex organizational environment and to connect to professional communities that include people with whom they can identify. Young’s interviews reveal “the myriad ways spaces that may seem innocuous to white people, and/or to men, are rife with interactions that . . . . illustrate the power of the law school classroom to sow seeds of inequality in the legal profession and to reinforce patterns detrimental to lawyers’ well-being.”
The message Young takes from this research diverges from currently popular remedial approaches that address law students’ stress. Rather than focusing only on treating and supporting students, she directs attention to the need for structural change. Law school policies and practices that have the effect of isolating students from classmates, distancing them from their pre-law school selves, and rewarding conduct perceived as unbecoming or rude are on her list of structural approaches that should be reconsidered. These approaches are presented as normal in law school, which reinforces the message that students should recognize and accept them as benign despite internal struggles, and in turn isolates and others students who experience them as problematic. These findings align with research on the legal profession, including, for example, work on the relationship of “organizational climates that require or at least glorify extreme work hours and . . . provide very little opportunity for workers to balance responsibilities in their competing life domains” and problems of “depression, stress, substance abuse and burnout that plague private-sector, big-firm lawyers . . .”
In future work, I hope Young will take up the paradox of mental health problems and the high satisfaction reported by law students and lawyers with law school and their legal careers. Combining these trends may reveal that legal education can maintain what students find satisfying and worthwhile about law school while also pursuing the “more transformative approach [that] is a structural one: Entertaining the possibility that if a pedagogical tool consistently produces negative results for certain people, perhaps the problem is with the tool, not the people.”
Structural forces, including workplace organization and policies, are a documented cause of inequality. These forces disproportionately burden and therefore contribute to the underrepresentation of women and lawyers of color in positions of power and influence, systematically reproducing the male, Caucasian hierarchy atop BigLaw’s equity partners. The lingering impact of these structural forces—counteracting the effectiveness of diversity, inclusiveness, and equity initiatives—has been a problem for BigLaw leadership for years. But what if, contrary to conventional wisdom, structural forces can instead increase—or at least not disadvantage—equality? In Accidental Feminism, winner of the American Sociological Association’s Distinguished Book Award from the Sociology of Law Section, University of California at Irvine law professor Swethaa Ballakrishnen explores this very intriguing question.
Presenting original empirical work collected in 2011-15, Ballakrishnen documents how, without adopting well-intentioned equality policies, India’s elite large law firms have become “accidental” feminist organizations featuring gender parity in their senior and equity partner ranks. According to the book, this surprising development was the result of a confluence of circumstances, “structural conditions that fortuitously have come together to create environments of emancipation for . . . women lawyers.” (P. 2.) First is organizational novelty: India’s elite law firms are, relatively speaking, young institutions, relying on a neoliberal attorney workforce educated in progressive law schools. Thus both the lawyers and the law firms are comparatively open-minded, even supportive of gender equality in the workplace. The second condition is globalization complete with an influx of capital and increased international demand for Indian legal services. Third and relatedly, accidental feminism depends on a receptive interactional global audience – India’s BigLaw are locally organized institutions doing work for global entity clients. Fourth, these conditions are all taking place in a particular cultural moment of close-knit family units and a caste-dependent labor force, which supplies women (and men) equity partners with affordable housework and childcare support system. Hence, Ballakrishnen establishes that India’s BigLaw’s feminism was accidental but not random.
Accidental Feminism is a must-read for anyone interested in competition and equality in the contemporary practice of law, and its findings raise a trove of fascinating questions that will intrigue practicing lawyers as well as scholars of the legal profession, only a few of which can be explored here.
To begin with, is accidental equality likely to take place in America’s BigLaw? Ballakrishnen’s analysis suggests not – or at least not as a function of the same mechanisms that seem to work in the Indian context. For example, whereas India’s BigLaw firms are new institutions recruiting lawyers educated in modern law schools embracing neoliberal values, many of America’s BigLaw firms are century-old institutions with a long and documented history of exclusion and discrimination, recruiting lawyers educated in old traditional elite law schools, which appear to do what they can to distance themselves from the teaching of any values, let alone neoliberal values.
Moreover, rather than facing ample steady demand for their services like their Indian counterparts, America’s BigLaw firms are operating in an increasingly competitive and unstable market emphasizing profits-per-partner that seems to undercut other commitments, equality included. Finally, while the commitment of global entity clients to gender equality should be acknowledged, it ought not be overstated. The commitment may be sufficiently deep-seated to support gender parity in India’s BigLaw and among the ranks of general counsel in Fortune500 corporations, but not to successfully tackle gender inequality among America’s BigLaw’s equity partners and in the C-Suites and Boards of corporate America.
While accidental equality is an unlikely result in the United states, Accidental Feminism does question the well-intentioned yet unsuccessful diversity, inclusiveness, and equity policies that America’s BigLaw firms have been pursuing for a generation. That India’s BigLaw firms did not set out to become feminist institutions but ended up producing gender parity suggests that the American obsession with intentionality as a cornerstone of understanding equality and inequality may be distracting and possibly unhelpful. Perhaps, implies Ballakrishnen, battling discrimination and devising diversity, inclusiveness and equity programs, equality advocates in the United States would be better served to focus less on intentionality and more on actual equality results, parity included. (P. 170.)
Speaking of parity, inquires Ballakrishnen, is it a desirable objective? In the American context, in which women lawyers and lawyers of color are systematically underrepresented in positions of power and influence, parity may plausibly and intuitively stand for greater equality, at least until we begin to approach it. The reality of parity practice in India’s elite BigLaw, however, forces an important and necessary introspection. Is gender parity among equity partners, for example, desirable? Are there opting in and out circumstances under which gender overrepresentation or underrepresentation among the professional elite might be appropriate? What might substantive gender equality in the workplace look like if the discourse moved past getting to parity?
And at what price ought we pursue parity? Accidental Feminism is a well-researched, well-written, nuanced book and Ballakrishnen is appropriately careful not to celebrate India’s BigLaw’s accidental feminism as a success story. Recall their pointing out insightfully that one factor explaining gender parity among India’s professional elite is its reliance on familial networks of support and the subjugation of a caste-dependent labor force. To be blunt, a necessary condition for and a price to be paid for professional equality among the elite appears to be the subjection of underclasses and persistent inequality among those who serve the elite.
At the same time, perhaps the deep inequality in Indian society, which helps explain greater equality among India’s professional elite, may open the door to greater equality in the entire unequal Indian legal profession, and, down the road, Indian culture, for example, with childcare support policies replacing caste-dependency. Here, one is tempted to consider an American analogue: the very discrimination of America’s elite old-guard White-Anglo-Saxton-Protestant white-shoe large law firms led to the rise of Jewish law firms, which in turn ushered in an era of greater equality within BigLaw and subsequently the entire legal profession in the United States.
Within and outside of the legal profession, the diversity, inclusiveness, and equity discourse in the United States is at crucial moment, see, here and here. Swethaa Ballakrishnen’s Accidental Feminism makes a timely, important and constructive contribution to it.
Cite as: Eli Wald, Accidental Equality
(October 19, 2021) (reviewing Swethaa S. Ballakrishnen, Accidental Feminism – Gender Parity and Selective Mobility among India’s Professional Elite
What would you call it when a former government official joins a corporate law firm? This is commonly known as revolving doors between market and politics in the United States but, in France, it has a different name: pantouflage. As Antoine Vauchez and Pierre France explain in their book The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France, pantouflage “bears a different meaning than revolving doors as it does not imply moving back and forth but rather a departure from the public sector.” (P. 55.) Such a departure of professionals from the public sector is also a familiar scene in other countries, such as China, where hundreds of mid-career judges, procurators, and other state officials leave their government or judicial posts to become lawyers in private firms every year.
Most existing studies on these professionals traveling between the public and private sectors emphasize either the personal benefits that they get from their “political embeddedness” or the economic consequences of their brokerage between state and market for their clients. Vauchez and France also observe similar dynamics in France, yet the focus of their book is on the structural consequences of pantouflage, namely, the blurring of the “border between public and private.” (P. 132.) Drawing on Michael Walzer’s theory of normative social differentiation, which proposes that the democratic space is made possible by the separation of the public sphere from other social , the authors argue that “the blurring of the public-private dividing line…calls into question the very conditions in which the public interest is defined.” (Pp. 132-133.) They even pose the question of whether the rise of pantouflage since the 1990s has punched “a black hole in democracy.” (P. 117.)
Arguably, this emergence of the so-called “neoliberal republic” is not unique to France. As neoliberalism swept the globe after the Washington Consensus in 1989, corporate law firms became active agents in the globalization of law and we have witnessed the circulation of legal elites between these law firms and other political, economic, and financial institutions across the world. To a large extent, the global presence of elite corporate law firms in the economy and is a telling indicator of the boundary blurring between the public and private spheres in the age of neoliberalism. As law firms recruit former officials from powerful ministries and, in the meantime, , financial institutions, business corporations, and international organizations, they penetrate the borders between distinct social spaces and make the logics of these spaces increasingly similar. The construction of isomorphism between market and state, therefore, is not only a structural phenomenon but also a cultural process by which the neoliberal ideology diffuses from the global market to nation-states and their officials.
Yet the rise of corporate lawyers in governance has different implications in France than in Anglo-American countries where the legal profession has always been a dominant force in national and local politics. Half a century ago, French legal workers were fragmented into several different occupational groups such as avocats, notaires, avoués, agréés, and conseils juridiques. It was only through two reforms in 1972 and 1990 that some of those groups were unified into the profession of avocats (while notaires remain a separate profession). The merger of avocats and conseils juridiques in 1990 was particularly consequential for the rise of corporate law firms as it produced a unified legal elite and opened the French bar to tax specialists in legal counseling firms. The entry of major US and UK law firms into Continental Europe coincided with this merger and “upended the quasi monopoly that had been the prerogative of the handful of French corporate law firms.” (P. 22.) As the authors describe it, this was “[t]he big bang that set in motion the creation of the French business bar.” (P. 22.)
This development of the corporate bar may the French case more comparable to the stories of emerging markets than to the English or American cases. As David B. Wilkins, David M. Trubek, and Bryon Fong suggest in their recent summary of the findings of the GLEE (Globalization, Lawyers, and Emerging Economies) Project, the rise of corporate law firms also occurred in Brazil, India, and China in the 1990s and these firms became a major gear for globalization and legal change in those three countries. The French story might sound exotic to an American audience, but it would feel quite familiar to a partner of a Chinese or Brazilian corporate law firm. Perhaps what sets France apart is that these elite law firms have not only dominated the business world but also penetrated the highest level of the French state, namely the Conseil d’État, by offering its officials a lucrative exit route. This is precisely the “black hole in democracy” that the authors emphasize in their book.
Why is the penetration of the state by business law firms problematic for democracy? To be sure, lawyers are only one of many competing groups of professionals in the “palace wars” of the state bureaucracy, and they often lose such wars to economists or engineers, in France and elsewhere. However, it is important to note that the legal profession, especially its prestigious corporate sector, has a high degree of social closure. Most corporate lawyers come from privileged social backgrounds and embody the neoliberal ideology in their work. Consequently, the increasing influence of the business bar could potentially make the state less open to the public. This is especially ironic given the history of avocats as the “spokesmen of the public” in nineteenth-century France who resisted the commercial logic of the market, as Lucien Karpik shows in his pioneering work on French lawyers.
In addition to the implications of the book for understanding law and democracy, the phenomenon of pantouflage also speaks to a long-standing blind spot in the Bourdieusian field-theoretic approach, which the authors adopt in the book to explain the relationship between the legal profession and the state. While Bourdieu used extensively the concept of “homology” to describe the structural isomorphism between fields, he had not developed a theoretical framework for explaining how fields are connected or the spaces between fields. The pantouflage of professionals from the bureaucratic field to the legal field (or business field) suggests the importance of focusing on “space travelers” between fields for understanding their mutual relations. Although lawyers are traditionally considered to be either guardians of professional monopoly or brokers of economic and political transactions, their mobility between different social spaces is equally important for making sense of the legal profession in relation to other social entities such as the state and the global market. When revolving doors are open, space travelers pass through them and connect the adjacent fields of power and money. In this sense, pantouflage has a similar processual logic to the logic of judicial corruption, which often involves former state officials who can breach the institutional walls of judicial independence. To trace the spatial mobility of lawyers, therefore, is a promising approach for advancing the study of the legal profession, as this excellent book demonstrates.
As readers may have heard, the National Conference of Bar Examiners (NCBE) recently approved the preliminary recommendations of its Testing Task Force and is committed to developing “the next generation of the bar exam.” What readers may not know, however, is that the NCBE is not alone in its endeavor to consider licensing requirements: regulators elsewhere in the world, including in Canada, are also examining the issue of admissions requirements and how they should evaluate lawyer competence. As the NCBE develops its “next generation” bar exam and as U.S. jurisdictions decide whether and how to change their admissions rules, stakeholders may find it thought-provoking to consider the excellent report that Jordan Furlong produced for the lawyer regulatory body in the province of Alberta, Canada. This report is entitled Lawyer Licensing and Competence in Alberta.
Similar to the preliminary recommendations recently adopted by the NCBE, and the reports on which the NCBE’s action was based, the Alberta Lawyer Licensing and Competence report examines what lawyer “competence” means, how it could be fostered and measured, and the proper role of the regulator. Although Lawyer Licensing and Competence was written for Canadian regulators, it provides insights that may prove useful to U.S. lawyer regulation stakeholders on issues related to lawyer competence, the role of a regulator, legal education, and the NCBE’s January 2021 decision to develop the next generation of the bar exam.
After a useful Executive Summary and introductory section, Section 2 of Lawyer Licensing and Competence presents six “Principles and Observations” that underlie the report’s recommendations. These six observations are as follows:
- The [regulator] should strive to ensure lawyer “competence” both in the minimum sense of baseline adequacy of knowledge and skills, and in the more aspirational sense of continuous advancement towards true proficiency in many different areas.
- The [regulator] should act both as a “coach” to encourage lawyers’ fulfillment and enhancement of professional norms and as a “cop” to enforce standards and address violations of those standards, but the “coach” should be the default approach.
- The legal education system is outside the scope of this report, but its longstanding and well-documented failure to adequately prepare aspiring lawyers for legal careers should not be allowed to continue and requires urgent [regulator] attention.
- The [regulator’s] six core lawyer competencies, originally formulated eight years ago, would benefit from reconsideration and revision, in particular with the addition of cultural competence and a shift towards more client-centric standards of competence.
- The [regulator] should seriously consider the effects and implications of anti-racism movements and the barriers and biases faced by lawyers who are Black, Indigenous, people of colour, and internationally trained on its licensing and competence systems.
- The [regulator] should recognize the growth of sophisticated competence assurance programs within law firms, public-sector law departments, and corporate law departments, and should strive to dovetail its competence efforts with them.
Although these six observations were written from a Canadian perspective, in my view they transcend borders and are observations that thoughtful U.S. lawyer regulation stakeholders should consider.
Following the “Principles and Observations” section, Section 3 of Lawyer Licensing and Competence addresses what U.S. lawyers might refer to as the lawyer admissions system. The lawyer licensing system in Alberta, Canada (and in other Canadian provinces) differs in some significant respects from lawyer licensing in the United States. As the report explains, there are three components of lawyer licensing in Alberta: 1) the law degree; 2) the bar admission course; and 3) articling requirements, which a U.S. reader might describe as apprenticeship requirements.
Because most of Section 3 addresses perceived weaknesses in the articling system and how Alberta might respond to those weaknesses, a U.S. reader might initially conclude that Section 3 of the Alberta report is not particularly relevant to the U.S. situation because U.S. jurisdictions do not typically have an apprenticeship requirement. The U.S. lawyer admissions community might similarly conclude that Sections 4 and 5 of Lawyer Licensing and Competence are not particularly relevant to them because Section 4 addresses the way in which lawyer competence develops during the first three years of law practice and Section 5 addresses what a U.S. audience might refer to as CLE requirements, rather than admission requirements. Despite these potential reactions, U.S. lawyer admissions stakeholders would do well to consider the insights found in the Lawyer Licensing and Competence report.
One of the major contributions of the Lawyer Licensing and Competence report is the degree to which it urges legal system stakeholders to view lawyer admissions not as an isolated, yes/no decision, but as part of an integrated regulatory system whose goals foster the competent delivery of legal services and the protection of clients. (15-16) Although the regulation of lawyers in the United States can be thought of as a “system” that involves the beginning, middle, and end stages of regulation, it sometimes has seemed that U.S. regulators in these differing time periods operate independently from each other, and independently of other stakeholders, with less conversation overlap than might be desirable. For example, “day-job” regulators on admissions issues often work quite independently from the “day-job” conduct and discipline regulators, and both often work independently of efforts within law firms or other legal employment settings. Many admissions-based U.S. conversations happen within the NCBE, whereas end-stage regulation conversations – i.e., lawyer discipline – happen within the National Organization of Bar Counsel or NOBC.
Things do seem to be evolving more holistically in the United States as stakeholders increasingly interact with one another, and regulators adopt approaches that go beyond those they may traditionally have used. NOBC members, who traditionally handled lawyer discipline matters, increasingly are interested in acting proactively to prevent problems. NCBE admissions regulators increasingly use a set of tools that go beyond the traditional “input” requirement of attendance at an ABA- accredited law school and the “output” requirement of successful completion of the bar exam. For example, some of the jurisdictions that use the NCBE’s Uniform Bar Exam (UBE) have pre or post-admission jurisdiction-specific law components, such as an online course on state law or attendance at a required seminar; these admission requirements look more like a “Bridge the Gap” or CLE requirement, rather than a traditional bar exam “output” measure. Another illustration of the trend towards a more systemic or holistic approach is the fact that U.S. lawyer regulation stakeholders participate in – and even host – International Conference of Legal Regulators (ICLR) meetings. These meetings bring together a global community of stakeholders, including admissions regulators, discipline regulators, and others. Recent U.S. regulatory initiatives provide another example; many of these initiatives have assembled a wide range of stakeholders and have tried to ensure that “access to legal services,” as well as client protection, are included in regulatory discussions, including admissions-related conversations.
I endorse this trend towards more holistic discussions about lawyer regulation. In my view, it is useful for all stakeholders from all stages of lawyer regulation to exchange information and ideas with one another. Indeed, one of the reasons why I recommend the Lawyer Licensing and Competence report is because it addresses multiple stakeholders and encourages these lawyer regulation stakeholders to focus on a full range of regulatory issues. It urges a perspective in which admissions, new lawyer training, and lifetime learning are viewed as part of an integrated whole related to lawyer competence – i.e., as a system – rather than as individual issues. Thus, although the Lawyer Licensing and Competence report is focused on the lawyer regulation system in Alberta, it provides food for thought for U.S. lawyer regulation stakeholders as well.
State supreme courts claim the exclusive, inherent authority to define and regulate the “practice of law.” Based on this authority, courts have enjoined as the unauthorized practice of law (UPL) all manner of potentially helpful legal assistance by nonlawyers, including counseling, advising, and assistance with documents, as well as representation in court. When it suits them, however, it turns out that trial courts accept extensive nonlawyer assistance behind the scenes, including nonlawyer counseling of clients, preparation of pleadings, and discrete courtside assistance. Courts may even encourage and institutionalize the role of nonlawyer advocates through designated workspace and workflows. But they like to keep it on the down low.
Of course, it is not the “unauthorized” practice of law if courts allow it. And courts’ claims to regulatory authority are strongest regarding who appears before them. But what are the implications of an unacknowledged nonlawyer assistance regime? This is the question posed by Jessica Steinberg and her comadres in their study of domestic violence courts’ “quiet partnership” with a “shadow network” of nonlawyer advocates “to substitute for the role counsel has traditionally played.” (P. 1316.)
The study is based on observations of roughly 275 protective order hearings in two states, as well as interviews with judges, protective order attorneys, and nonlawyer advocates who work with petitioners in protective order matters. (P. 1328.) Nonlawyer advocacy programs are widespread in the protective order context, in which more than 75 percent of parties appear without a lawyer. As the authors report, over half of the nearly two thousand domestic violence programs in the country provide “court advocacy/legal accompaniment” services. (P. 1329.) The nonlawyers who assist petitioners seeking protective orders are known as “domestic violence advocates” and work for nonprofits funded, in part, by the Violence Against Women Act; however, they are based in the courts. (P. 1330.)
The study finds that the scope of nonlawyer assistance in protective order proceedings is extensive. Domestic violence advocates “provide the full range of services one might expect from a lawyer, short of appearing in court.”
Advocates identify protective orders as an option, among many, that domestic violence survivors might pursue. They elicit factual information from petitioners in service of preparing protective order pleadings. They assist in the development of evidence. They offer explanations about what the court process entails. And finally, they counsel petitioners on whether to pursue legal recourse, how to select remedies, and how to clear procedural hurdles, such as service of process. (Pp. 1331-32.)
The counseling offered by nonlawyer advocates is difficult to distinguish from the type of nonlawyer advising that is routinely prohibited as UPL in other contexts; on the contrary, it looks much like the “strategic expertise” that lawyers provide in navigating relationships, norms, and procedures in court. (Pp. 1335-36.) Moreover, although they do not formally “appear” in court, domestic violence advocates “are stationed inside the courtroom during protective order proceedings,” where they whisper instructions and reminders to petitioners and are on call to step into the hallway mid-proceeding to advise petitioners who seem confused. (P. 1331.) In one study location, “advocates have a permanent office next to the filing clerk,” and in the other, they “work out of the basement of a government building next to the courthouse.” At both study sites, court clerks automatically direct petitioners with a claim of intimate partner violence to advocates for a range of services, including help completing court paperwork. (P. 1330.)
The authors explain that judges rely on nonlawyer advocates for docket control. Judges are under “enormous pressure” to process cases quickly and, without assistance, it can be difficult for petitioners to develop and present their claims. (P. 1329.) Yet, judges are reluctant to acknowledge the role of nonlawyer advocates—or even to acknowledge their presence—lest it undermine the appearance of judicial neutrality or provoke backlash from the bar. For instance, “[o]ften, work that appears like active fact gathering by judges in the courtroom … is carefully curated by nonlawyer advocates who have developed factually specific pleadings that guide a judge’s questioning of the petitioner.” (P. 1317). At one site, advocates’ role has become more concealed over time:
In the past, advocates were permitted to make a speech prior to the commencement of the protective order docket, identifying themselves and the services they provided. However, judges grew uncomfortable with the advocates’ public appearances, since it gave the impression that the court favored petitioners over defendants. Notably, advocates’ firm institutional status … did not shrink after the prefatory speech was abolished. Advocates … continue to perform their role in the same way—they occupy permanent space within the courts to meet with survivors and accompany every petitioner to the judge’s chambers after a hearing concludes. It was only the public-facing part of their role that disappeared. (P. 1342.)
Thus, judges’ extensive reliance on nonlawyer advocates is “hidden behind the scenes.” (P. 1316.) As Steinberg et al. write:
There is a paradox at play here. On the one hand, advocates are intimately embedded in the courts, serve a majority of petitioners who file protective orders, and are relied on by judges to off-load the burdens of serving pro se parties. They are quite visible to judges, court staff, and pro se parties—and, ultimately, were visible to us as observers of these courts. On the other hand, the advocates’ activities—while known to actors within the court ecosystem—are hidden from public view or, at the very least, hiding in plain sight Their role is not formally acknowledged or regulated by the bar or state supreme courts. (P. 1331.)
The authors identify three important implications of this unacknowledged nonlawyer assistance regime. First, there is a lack of transparency about the role of nonlawyer advocates and “even whether petitioners are required to avail themselves of the advocates’ services or merely have the option to do so.”
One advocate voiced a common source of confusion, which is that pro se parties do not understand who an advocate is, who they work for, and what they do. She states that “a lot of people think I’m court staff. I kinda just explain that I’m an . . . advocate and that I’m there to help them.” (P. 1331.)
Second, we are squandering “an opportunity to develop norms and best practices around a paraprofessional role,” at a time when states are actively experimenting with new roles for independent paraprofessionals. (P. 1341.) Both Utah and Arizona have begun licensing specialized nonlawyer practitioners and researchers are tracking the results. Washington recently scrapped a similar experiment, citing a lack of interest among practitioners. A key issue in designing new models for nonlawyer assistance is the type and length of training necessary to ensure quality of service in different contexts. Yet, courts’ reliance on nonlawyer advocates in protective order proceedings—a widespread, established model for assistance that “appears to be working as intended” (P. 1341.)—is not officially recognized, sanctioned, or championed as a possible template.
Finally, the lack of public acknowledgement of nonlawyer advocates’ role “conceals a massive due process rift” between petitioners and alleged abusers.
Petitioners have access to experienced advocates who assist with almost every aspect of protective order proceedings, while defendants typically have no assistance at all. At stake for defendants are their freedom of movement, custody of their children, and eviction from their residences. Bringing the advocates’ role into public view would make clear that state supreme courts and bar associations need to take steps to level the playing field. (P. 1341.)
The authors argue that trial judges should be encouraged to be candid about the role of nonlawyer advocates so that “paraprofessionals might be brought out of the shadows, fully integrated into open courts, and authorized to offer services currently considered sacrosanct by the practicing bar—including providing legal advice and speaking on behalf of clients in live proceedings.” (P. 1349.) They suggest that trial judges be included in conversations about regulatory reform, “leveraging their experiences in working with advocates” to help formulate new paraprofessional roles. (P. 1345.) And they call upon legislatures and state supreme courts to provide political cover for this effort, to protect elected judges from potential backlash and ensure that existing advocates “be protected, not ousted” by new regulatory regimes. (P. 1349.)
The study should be required reading for those interested the work of state trial courts, the role of judges, and evidence-based regulatory reform.
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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.