Anthony Sebok, Selling Attorney's Fees, U. Ill. L. Rev.
(forthcoming 2018), available at SSRN
The humble fee-splitting rule—Rule 5.4(a) of the Model Rules of Professional Conduct and its substantial equivalents in various states—plays an outsized role in structuring the delivery of legal services in the United States. The rule provides that, with limited exceptions, “[a] lawyer or law firm shall not share legal fees with a nonlawyer.” The fee-splitting rule is substantially the same even in jurisdictions with quirky rules of professional conduct, such as California, New York, and Texas. The only exception is the District of Columbia. Historically the concern of the fee-splitting rule was mostly payments to nonlawyers for referrals of cases, or the use of “runners” or “cappers” to solicit personal-injury clients. It featured prominently, however, in the debate in the early 2000’s over the proposal to allow multidisciplinary practices (MDPs), such as partnerships between accountants and lawyers. The acrimonious MDP debate ended with lawyers doubling down on the claim that the practice of law is a profession, not a mere business, and that avoiding the sharing of fees with nonlawyers is an essential firewall protecting lawyer professionalism. (Insert snark here about how an industry with total revenues of $86.7 billion—the 2017 AmLaw 100—can claim with a straight face not to be a “business.”)
Tony Sebok’s article, Selling Attorneys’ Fees, begins on familiar ground. The inability of law firms to obtain equity investments from nonlawyers limits their sources of capital to firm revenues and debt financing. This leaves them strapped for the cash that might catalyze Silicon-Valley-style innovation in the delivery of legal services and makes them vulnerable to economic downturns. One of the motivations for the ABA’s Ethics 20/20 Commission was to consider whether regulatory innovations might enhance the delivery of affordable legal services. However, the proposal to permit certain types of alternative business structures, which would have required relaxing the fee-splitting rule, went down in flames. The Illinois Bar Association filed a formal resolution opposing changes to the fee-splitting rule, and the Ethics 20/20 Commission responded by tabling any consideration of alternative business structures.
The first question Sebok addresses concerns the application of the fee-splitting rule to law firm financing transactions. If the policy underlying the fee-splitting rule is protecting the independent professional judgment of lawyers (and Sebok shows that this is the best constructive interpretation of the rule), then one would think the rule would focus on the extent of control exercised by a third party. That is sometimes the way the rule is applied, but not always. Here is an illustration from the Hazard, Hodes & Jarvis Law of Lawyering treatise, which Sebok uses in his article: Three lawyers would like to construct a law office; each is required to contribute $50,000 to the project. Lawyer A borrows $50,000 on a line of credit with a bank. Lawyer B obtains $50,000 from a wealthy friend, in exchange for a promise to pay 10% of his net legal fees. Lawyer C takes $50,000 from a recent settlement of a client’s matter and plows it back into the construction costs. Which of these lawyers has violated Rule 5.4(a)?
If the answer depends on whether attorneys’ fees are literally shared with a nonlawyer, then Lawyers A and B both violated it. There is plentiful authority, however, supporting the conclusion that making interest payments on an ordinary commercial line of credit with a bank does not violate the fee-splitting rule. One of the many contributions of Sebok’s article is to show that the covenants in loan agreements with banks grant a significant degree of control to the lender over the operation of the law firm. If the concern underlying Rule 5.4(a) is preventing outsiders from meddling in the representation of clients by lawyers, Lawyer A may be in trouble also if she accepts covenants potentially granting control to the lender. As for Lawyer B, one might rely on the principle that it is permissible to pay a fixed interest rate to a lender, one not contingent on the outcome of any given matter, but there are some state bar ethics opinions prohibiting these sorts of fixed-rate contingent advances. The prohibition becomes more uniformly applied where the return to the lender is calculated as a percentage of the proceeds of a litigated matter handled for a client. Further complicating the analysis, law firms commonly engage in factoring transactions, in which they sell their accounts receivable to a nonlawyer, in exchange for a discounted cash payment. A recent U.S. District Court decision in Massachusetts followed the well-established rule that selling accounts receivable – which, after all, necessarily are comprised of attorneys’ fees – to a nonlawyer does not violate the fee-splitting rule.
It is then but a small step to recognize the permissibility of factoring unmatured attorneys’ fees, as distinguished from payments due for services already completed. (“Unmatured” here means that a definite obligation to pay the lawyer a specific amount has not yet accrued; in a contingent-fee representation, for example, the client may have agreed to pay 1/3 of the gross proceeds, but until judgment or settlement, the precise extent of the client’s obligation has not yet been established.) As Sebok notes, “attorneys are factoring unmatured contingent fees today” (P. 32.), courts are aware of the practice, and have allowed the existence of this practice to pass without comment. Interestingly, one New York decision he cites inverts the “core values” objection to fee-splitting and contends that a formalistic application of the fee-splitting rule treats lawyers worse than other similarly situated businesses. (P. 33.)
But the factoring of unmatured fees would violate what Sebok calls the Direct Relation Test (DRT), which is his attempt to make sense of the incoherence in fee-splitting cases and ethics opinions. The DRT prohibits the payment of legal fees to a nonlawyer if and only if the nonlawyer’s profit or loss is directly related to the success of a lawyer’s representation of a client. (P. 21.) “Direct” here means something like “linked to the result in a particular case or small subset of cases.” Courts and bar associations therefore have a choice: Either prohibit factoring of unmatured fees, thus applying the DRT, or permit this common practice and junk the DRT.
It is impossible in this short comment to do justice to the sophistication and subtlety of Sebok’s argument. His resolution of the dilemma is ingenious. If I understand correctly, the DRT is not implicated in the factoring of unmatured fees because what the attorney sells to the buyer is a peculiar type of property—a lien on the proceeds of the lawsuit. The lien creates an equitable assignment of property (the client’s cause of action) in favor of the nonlawyer. Because the property interest never passes into the hands of the lawyer, the lawyer seller is not sharing fees with the nonlawyer buyer. (Pp. 38-39.) If courts and ethics committees analyze the fee-splitting rule in this way, however, it becomes possible for clever lawyers and financiers to draft around the rule’s prohibitions. Non-recourse loans, for example, can be reworked as the purchase of a property interest in an unmatured fee. It is therefore impossible to hold onto a principled interpretation of the DRT, because a return to an investor that is directly related to the attorney’s performance may fall outside the fee-splitting rule. Regulators may be tempted to respond by overcorrecting in the direction of a highly formalistic interpretation of Rule 5.4(a) that would prohibit a form of financing commonly engaged in by contingent-fee lawyers.
One solution to the dilemma identified by Sebok would be to focus not on the nature of the property interest conveyed, but on the effect of the transactional structure on the lawyer’s exercise of independent professional judgment. (He suggests this reading when he notes that one of the most important sticks in the bundle of property rights is control over any portion of the interest.) Briefly, the question would be, is there any circumstance under which the lawyer would do better financially by taking actions that adversely affect the client’s matter? That is one way to synthesize many of the state ethics opinions he cites, and is consistent with the policies underlying the rule. But regulators have a distressing tendency to veer erratically between formalistic and functional or policy-sensitive interpretations of Rule 5.4(a). Furthermore, as Sebok has shown, the possibility of control and interference by third-party financiers is much more pervasive than lawyers may realize.
At the end of the day, Sebok’s proposed resolution is a kind of unjust-enrichment revision of the rule, under which “non-lawyers may not benefit from gains generated by legal resources that were enabled by the non-lawyer for the use of an attorney on behalf of her client.” (P. 51.) The client’s recovery is supposed to depend on the lawyer’s “knowledge, skill, experience, and time expended.” (P. 51, quoting Texas Bar Op. 576.) If a third-party financial investment helps the attorney maximize the effect of her skills, that is fine; the client then benefits directly, and the investor indirectly. What is impermissible is for third parties as well as clients to benefit directly from their investment. The direct benefit would somehow convert them into “officious intermeddlers,” in the language of many old champerty cases.
I am not entirely persuaded that the functional approach to the interpretation of the fee-splitting rule should be abandoned. To my mind, a focus on the “productive or generative” relationship between the nonlawyer’s financial contribution and the lawyer’s provision of professional services is getting far afield from Rule 5.4(a)’s emphasis on the lawyer’s independence. It’s true that some aspects of third-party financing of litigation are best explained in terms of the nonlawyer’s motivations. Sebok himself has written the definitive article rationalizing the law of champerty and maintenance along these lines. Whether in the end courts and bar associations follow Sebok’s suggested interpretation, there is no doubt that this article is by far the most comprehensive and ambitious treatment in the literature of an important, if under-appreciated feature of the law governing the legal profession.
In Lawyers, Confidentiality and Whistleblowing, Christine Parker, Suzanne Le Mire and Anita MacKay make a case for a “gatekeeper of justice whistleblowing obligation” based upon the special relationship of lawyers to their clients and to the law:
… lawyers hold special appeal as potential whistleblowers. They are trained and able to spot illegality and abuses of the justice system. Their duty to the administration of justice and to the court is considered to be paramount; prioritised over the duty to their client. This duty could place a responsibility on the lawyer to respond to, prevent or perhaps expose misconduct that affects the administration of justice. (Pp. 1010-11.)
Having established the obligation, they propose a model for deciding when and how to whistleblow, which contains three “ethical touchstones” to be considered:
First, the relationship between the lawyer whistleblower and the wrongdoer. Secondly, the type of wrongdoing to be disclosed. Finally, the process adopted by a lawyer whistleblower faced with misconduct… (P. 1016.)
The authors draw inspiration for this model from exiting legislation protecting, and even encouraging, whistleblowing in Australia and the USA. However, these statutes only cover a small part of lawyer activity, and the traditional justifications for strict lawyer confidentially informs their interpretation. The authors largely accept the need for confidentiality but contend that a “gatekeeper of justice whistleblowing obligation” is consistent with existing requirements. Nevertheless, they concede that lawyer whistleblowing against their clients is very rare. They argue that change is required to rules of professional conduct to provide clear protections so as to encourage lawyer action to fulfil their justice gatekeeping role. They suggest expanding the voluntary exceptions in the rules to “explicitly introduce[e] an exception to confidentiality … where the crime-fraud exception to privilege or the iniquity rule exception to breach of confidence would apply.” (Pp. 1049-55). Parker et al also propose that this discretionary breach of confidential client information be made to an independent lawyer regulator for investigation. (P. 1045.)
The authors are particularly concerned about deliberate abuses by well-resourced corporate clients as exemplified in their case study from the Australian chapter of the “tobacco files.” In the first test case against a tobacco company for smoking-related disease it was revealed that its lawyers had for many years “warehoused” hundreds of thousands of incendiary documents while their clients destroyed the originals, and now claimed they were privileged. (Pp. 1002-03.) The case dragged on for years with many interlocutory skirmishes, and the lead plaintiff died prior to settlement. On the evidence before them, courts ultimately condoned the “document management” practice, and the tobacco lawyers who took part weren’t investigated or sanctioned. Several years after the case, a concerned partner who worked for the firm representing the tobacco company provided documents to the media and to opposing lawyers revealing more about his firm’s and its client’s activities. The authors use this case to work through their decision-making model for whistleblowing. At first glance, a system designed to hide documents from evidence is a clear breach of professional norms which ought to, and could ethically, be exposed. However, the article illustrates how the contours of ethical whistleblowing even in this case can be complex and arguable.
The authors suggest that, for such outside counsel of a misbehaving client, as well as for lawyers vis a vis their misbehaving law firm, there is a “strong argument” to whistleblow based on their unparalleled “relationship” access to such knowledge – the first ethical consideration. Yet they conclude that under existing legal and ethical regimes “both insider and outsider lawyers are in need of protection.” (P. 1029.)
They then turn to the type of wrongdoing required to activate whistleblowing obligations. Under existing rules, some client wrongdoing can be exposed. However, in the tobacco example, there was no court finding of illegality of action or purpose by the client or “imminent harm” caused. Thus, while the whistleblowing partner explained his actions as legally justified under common law exceptions to privilege (for iniquity or fraud), and that it was an ethical breach of confidentiality in the ‘public interest’, he was on uncertain professional ground. The authors argue that this leaves us with an unsatisfactorily narrow set of client activities that are likely to be revealed. Conduct rules therefore need to expressly permit exposure of actions that prejudice the administration of justice.
This takes us to the final aspect – process. Gatekeeper whistleblowing must be carefully constrained to ensure the lawyer “only leak[s] confidential information where it is ethically justified to do so and do[es] not unnecessarily breach other ethical obligations in the process.” (P. 1041.) The process is to: first “use judgement and [be] accurate in [the] assessment of any wrongdoing”; “minimise the breach of loyalty” by making it the last resort and use institutionalised avenues available where possible; and “fairness of accusation” such that it is proportionate to the public harm revealed. (P. 1042.) In the tobacco client case, the whistleblower had strong evidence and an apparently genuine concern about a lack of public knowledge about how the justice system may be misused in the future. However, he went to the media, and he blew the whistle years after the lawsuit was resolved. The authors rather ambivalently conclude: “On the best interpretation then, [the partner’s] leak potentially created a more open, fairer, democratic discussion about what behaviour in litigation was and was not appropriate.” (P. 1048.) Even by their proposed model, people may argue about whether the partner’s actions were ultimately justified.
The article undertakes a important project to encourage and enable lawyers to protect the fair working of the justice system. They rightly concede that application to other contexts rather than corporate client abuses may need more consideration. To my mind, they succeed in framing a coherent professional obligation to the ethical clarity needed for more lawyers to expose misconduct by clients and their firms. They then neatly distill the whistleblowing literature to formulate a simple and practical model for that lawyer to apply in fulfilling this obligation.
Reading Robert W. Gordon’s Essay The Return of the Lawyer-Statesman? on Ben W. Heineman Jr.’s book, The Inside Counsel Revolution (an introduction and link to the book can be found here) reminded me of three virtues. One is of the review essay, the ability to luxuriate in another’s work and allow it to be seen through one’s own ideas. This is something I confess I have never attempted, fearing the reflex to critique or the urge to self-publicize would surface too strongly. The second is of the need to return to familiar but central ideas. Gordon has written on the themes in this essay many times before (see for example, Corporate Law Practice as a Public Calling and A New Role for Lawyers: The Corporate Counselor after Enron). His arguments are the more elegant for it and, importantly, our reading of Heineman is more rewarding too. But the third is the one that struck me most forcefully, which is the wisdom to be gained from well-told legal history.
The central virtue of Gordon’s essay is the historical contextualization of Heineman’ book. Gordon gives us a taut, rich, and informative narrative on the importance of political context. In seeking to answer whether General Counsel can be both [business] partner and [public] guardian as Heineman puts it, we are reminded how we have been here before: the tensions in the General Counsel role—and their currently high status in corporate affairs – are not peculiarly modern. Most importantly we also see how lawyers’ ethics are shaped by far larger forces than law schools and bar associations. So the influence of inter-war industrial relations, Reagonomics, the politics of corporate leaders, and latter day skepticism of the corporation post-financial crash may all play a role.
The starting point is Louis Brandeis’s 1905 call for a more independent, judicious, public-interest focused model of corporate representation in his 1905 speech, The Opportunity in the Law. We are reminded of Brandeis’s call for lawyers to advance democratic citizenship but also that their ability to do this depends on their business clients desiring or permitting such a role. Gordon points too, to some signal successes for one of Heineman’s early predecessors as a General Counsel at—and perhaps more importantly as Chairman of—General Electric, Owen Young. Young lived the Brandeisian dream: company unions, company sponsored life insurance, mortgage benefits, employment and wage security and the like were the result. Leaders of large corporates formed the Committee of Economic Development (CED) in 1942 to advance moderate public interest agendas, prefiguring Heneiman’s ideas about how corporates should lead. Economic and geopolitical problems of the 1970s, familiar to the World conjured by Brexit or by Donald Trump’s rustbelt America, prompted a reversal of a particular kind. The CED was replaced by a Business Roundtable which shifted towards a public program centred on cutting taxes, social spending, labor costs and reducing regulation. By the late 1990s, Gordon puts it like this: “professional management was still connected to a policy program and social vision, though by this time a very conservative one.” (P. 1742.)
The benevolent capitalism of Brandeis was replaced with the ideas of business as a mere collection of contracts. Managers were notionally aligned with shareholders and practically freed to promote their own wealth as a priority, “until the bubbles burst and the music stopped.” (P. 1743.) This nod to the Financial Crisis is, I think Gordon’s way of bringing both his history, and Heineman’s book, into the sharpest social and political focus. The corporate amorality, driven from the 1980s onwards by Milton Friedman amongst others, was mirrored by client-first notions of professionalism: “This orthodox view of the corporation as amoral profit-seeking servant of its stockholders is, I believe, disturbing enough on its own terms. But it becomes positively frightening when coupled with the orthodox view of the lawyer as equally amoral zealous servant of his client….” (P. 1744.) In settling some scores with the shallow ethicality of Friedman’s vision, Gordon sets out the central—if perhaps a little exaggerated— role of lawyers in subverting the rule of law through gaming, creative compliance, or what my lawyer informants sometimes refer to as sharp or clever lawyering. He sees law, as frequently practiced today, as a cost on the business that can be ignored if the rewards are high enough. He sees how corporate amorality does not act as a bar to rent-seeking and right-wing populism. Instead, he writes, “[t]he amoral corporation guided by the amoral zealous advocate is potentially a monster, a powerful engine of destruction, a licensed sociopath” aided and abetted by the ethics of lawyers to “libertarian Babbitry.” (P. 1750.) The critical point here is that a certain kind of business logic (amoral, short term, aggressive) is aided by the professional ethic of zealous advocacy that helpfully absolves the lawyer of professional responsibility. The danger is a mutually reinforcing logic of irresponsibility.
With the language of criticism flowing so freely, and powerfully, Gordon nevertheless sees hope in Heineman’s book. The key, I think, is in Gordon’s observation that, “[e]veryone is, or at least pretends to be, just an agent.” (P. 1763.) The point is that the agents service the amoral, profit drive beast, and feel able to disclaim responsibility because of notions such as amoral zeal. And it is very clear that Heineman takes a very different view. Gordon writes:
Heineman articulates a vision of the general counsel’s role that is in many ways at odds with 1980s-era managers’ and lawyers’ ethics. He emphatically rejects the Jensen-Meckling thesis that the sole task of management is to maximize shareholder value, as measured by short-term share price, and resurrects the managerialist view that the corporation has responsibilities to its many constituencies—including employees, customers, creditors, suppliers, and communities. He also rejects both the “bad man’s” view of law as simply a price on conduct and the view of law as texts to be construed formally and technically rather than in the light of their “real purpose[s]” and likely social consequences. He urges company lawyers to respect the law as embodying norms, or “binding judgments made by a society’s duly authorized legal and political processes,” and argues that “[g]lobal corporations must give deference to the law of the nation in which they choose to operate, even if there is some discretion in determining what is the law of that society.” A general counsel must say “no” to clearly illegal conduct. But the lawyer-statesman must ask what is right as well as what is legal. And more than that, he must ask what the long-term global economic, policy, and cultural tendencies are that may affect the corporation’s future and to develop strategies to anticipate them. Heineman calls for—and his career exemplifies—a powerful and proactive general counsel, not a team of lawyers waiting passively to be consulted by business managers. (Pp. 1754-55.)
Gordon poses a series of well-judged questions about the book. Does Heineman live up to his own counsel? Did he fail or lose some battles in dealing with some of the ethical problems associated with GE? If he did, why did he lose them? Gordon acknowledges the reasons why Heineman would not or could not always prevail: these include the possibility that Heineman’s hands were tied by obligations of professional privilege and confidentiality, a clever example of the way in which legal professional privilege silences error and scandal but allows the promotion of success.
I am a fan of the Heineman book, but Gordon’s criticisms are well made and fair, as is the praise. I want to end with that, because for all that critique is important, the praise is important too and—to my mind—well judged. When someone as experienced and as wise as Gordon says a practitioner’s work is “utopian, in a good way” something is up. (P. 1736.) It is, Gordon says (and I agree), “the most comprehensive and detailed vision of an in-house counsel as lawyer-statesman who promotes public values and the rule of law as well as self-interest of his client company.” (P. 1753.) And “it is full of concrete examples of public-minded activism and pragmatic proposals for the institutionalizing the locus of such action in the general counsel’s office.” (P. 1762.) To be sure, not everyone will agree with every point Gordon (or, for that matter, Heineman) makes. But with the sweep of history reminding us of the past and its promise, as well as its pitfalls, Gordon, and Heineman’s work can help General Counsel chart a different and better course—and their ideas can help law schools, as they redouble their efforts to teach students ethics and impart professional identity, with greater vigour, purpose, and understanding.
The bar exam has rarely been of great interest to legal scholars. Although its format and pass rate vary substantially across countries and jurisdictions, it is often dismissed as merely a qualifying exam aimed at “controlling the production of producers,” as Richard L. Abel argues in his seminal book American Lawyers. Even in Japan, where the bar exam pass rate used to be as low as 2-3%, most discussions contemplating reform have focused on whether or not it is desirable to increase the number of lawyers. Although many law professors have taken the exam—and some, famously, have flunked it—there seems to be little scholarly interest in understanding its content.
This is why Rachel E. Stern’s new study on how China politicized its bar exam is both refreshing and insightful. In the process of researching Chinese law, Stern keenly observed a phenomenon that most other researchers took for granted. In particular, over the past decade, a number of “political questions” have been inserted into the National Judicial Examination—China’s unified bar exam for judges, procurators, and lawyers. These questions are not aimed at testing the test-takers’ legal knowledge or technical expertise but, rather, their understanding of the “socialist rule of law and the correct role of the Chinese Communist Party (CCP)” (P. 507), which are only remotely related to legal issues or the structure of the legal system. Although the political questions account for merely a small percentage of all exam questions, given the exam’s relatively low pass rate (only 11% in 2013), most test-takers still take them seriously.
The answers to many of the political questions appear enigmatic to non-Chinese readers, yet for the would-be Chinese legal professionals who prepared meticulously for the exam, finding the correct answers is not a difficult task. As Stern argues, this involves a process called “preference falsification” by political scientists, that is, an act of “navigating the gap between private beliefs and public expression.” (Pp. 525-26.) For citizens living in post-socialist or other authoritarian regimes, this is “an instinctive strategy for survival” (P. 526) acquired through years of living (and test-taking) experience. Through the bar exam and many other state-controlled exams, Chinese young adults are trained “in the art of orthopraxy,” (P. 527) and they can easily display public loyalty to the Party-state orally and in writing without true inner belief in its legitimacy. As one of Stern’s interviewees put it, “I have my personal opinion, but for the test I will do whatever the correct answer is.” (P. 526.)
Then comes the obvious question: Why put such political questions in a professional qualifying exam if few test-takers truly believe in their answers? Here Stern’s usually clear and convincing analysis gets a little ambiguous. She gives four possible explanations (i.e., to weed, warn, persuade, or train) but then rejects all of them. (Pp. 523-24.) Indeed, given the small percentage of political questions and the fact that most Chinese adults have mastered the “art of orthopraxy” in primary and secondary education long before they stand for the bar, the purpose of inserting this political element into the bar exam seems puzzling. Stern argues that the bar exam is not a warning, persuading or training tool, but “a site of political learning where test-takers refine and practice the implicit rules governing interactions with the state.” (P. 525.)
This is certainly true for the bar exam, but it is also true for many other exams. As Stern points out, similar questions widely exist in the college entrance exam, the civil service exam, and other professional licensing exams in China. Accordingly, finding the “standard answers” to political questions is a highly routinized practice for ordinary Chinese students and citizens. In this sense, inserting political questions into the bar exam is perhaps not as surprising to Chinese test-takers than to outside observers. It is possible that the practice reflected the particular political climate of the late 2000s, when “China’s turn against law” occurred, as Carl Minzner observes in his widely cited article. In that turn, the Chinese government and the CCP explicitly sought to situate the legal system under the more pressing concerns of maintaining social stability and preventing social unrests. Under this political background, making sure that future legal professionals at least understand (if not believe) the Party-state’s policy concerns seem a reasonable explanation for the “political turn” in China’s bar exam. After Xi Jinping’s rise to power in 2012, the CCP has been even more assertive on its role in the legal system and, therefore, the continuing use of political questions in the bar exam is not surprising.
Nevertheless, I agree with Stern that we need to take the political nature of professional qualification seriously, in China and elsewhere. In American Lawyers, Abel documents the history of “character tests” in the United States as a tool to exclude political dissidents from entering the bar. (P. 70.) In comparison to the exclusionary nature of the American-style character tests, the political questions in the Chinese bar exam constitute a subtler way of promoting lawyers’ political loyalty to the regime. Even though test-takers could theoretically give up all the political questions and still pass this exam, in practice most of them are trained to find correct answers to those questions, often through intensive cram courses and repeated practice exams. As a result, what Stern calls “preference falsification” exercises a symbolic function of defining the boundary of acceptable ideology and behavior under China’s political regime.
In this sense, the seemingly technical bar exam becomes an instrument of political control over the legal profession, a form of “soft repression” exercised not only by the state, but also by all the participants of the bar exam preparation. Stern gave a fascinating example of how a bar exam cram school lecturer explained to his class the fundamental logic of political questions in the exam: “memorize this one sentence . . . our Party is always glorious, great, and correct.” (P. 528.) As he continued to elaborate on this point with stories and jokes, the students laughed. But would they also laugh when they saw hundreds of activist lawyers detained in the “709 Crackdown” in 2015? Or when they heard the Supreme People’s Court President publicly denouncing judicial independence as an erroneous “Western concept” in 2017? Beneath the veneer of preference falsification there is a hard truth: The Party always trumps the law. This is the lasting pain of becoming legal professionals in China, and the bar exam is merely one of many symptoms in their careers that confirm it.
William H. Simon, Attorney-Client Confidentiality
, Geo. J. Legal Ethics
(forthcoming, 2017), available at SSRN
In a concise and elegant essay, titled Attorney-Client Confidentiality: A Critical Analysis, William H. Simon offers a compelling justice-based critique of the doctrine of confidentiality. Defined broadly to encompass all “information related to the representation” of a client, the traditional doctrine, dubbed by Simon “strong” confidentiality (p. 1), forbids disclosure unless narrow exceptions apply (see Rule 1.6). Challenging both the expanse of the doctrine and its categorical posture, Simon instead advances what he calls “moderate confidentiality”—a duty that would “mandate preservation of confidentiality except where disclosure is clearly necessary to avert substantial injustice.” As Simon explains:
The moderate duty is sensitive to context and demands complex judgment on the part of the lawyer. In every case where confidentiality threatens to work injustice, the lawyer must weigh the value of client loyalty against the competing harm disclosure would avert. By contrast, the strong confidentiality of current doctrine is more categorical in form and seems designed to minimize judgment. Once there is a presumptively confidential communication, the lawyer is directed to consult a list of exceptions. If there is no relevant exception, confidentiality prevails over competing considerations, no matter how weighty they are. (P. 2.)
In so doing, Simon first rejects the two common justifications for strong confidentiality: the notion that strong confidentiality is needed to foster trust in the attorney-client relationship, which in turn makes the representation more effective, and the vindication of law and legal rights. Both justifications are codified in comment 2 to Rule 1.6. The comment reads in relevant part, “[confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively,” and adds that “[a]lmost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.” (Rule 1.6, cmt 2.)
As to the first justification, Simon argues convincingly that trust in the attorney-client relationship if and when it results in substantive injustice to others, does not constitute a compelling justification to broad confidentiality. In Simon’s words, “the key underlying value of the legal system is justice. The legal system does not exist to create trust. It exists to create order within the limits of justice. When confidentiality threatens justice, as it often does in its strong version, it is implausible to assert that trust is more important.” (P. 3.) And, as to the second, Simon asserts that vindication of clients’ rights, either advising clients about past conduct or in connection with their future acts, does not require strong confidentiality, evident by the many exceptions to the existing doctrine. (Pp. 2-8.)
Having found the rationales for strong confidentiality “uncompelling,” the essay advocates a softer and more context-specific substitute. Simon points out that while the current doctrine appears to result in certainty for clients and lawyers regarding the application of confidentiality, strong confidentiality does not in fact provide clients with strict assurances that information related to the representation will never be disclosed. More importantly, Simon argues that the moderate approach he advocates still takes the form of a presumption in favor of confidentiality, while inserting justice – “the key underlying value of the legal system” (p. 3) – into the analysis, allowing lawyers to consider justice, if not as a client goal, then appropriately as a constraint on confidentiality and the representation itself. (P. 10.)
Justice, the cornerstone of any legal system, has long been a neglected aspect of the American legal system. While the Preamble to the American Bar Association Model Rules of Professional Conduct defines a lawyer to be “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice,” U.S. lawyers increasingly understand their role predominantly in terms of the representation of clients, to the relative exclusion of meaningful duties as officers of the legal system and as public citizens, see here and here for a summary of the relevant data. Indeed, the Rules themselves specify few duties for lawyers as officers of the legal system and public citizens, and law schools and bar associations increasingly shy away from teaching, or even engaging their students and members in meaningful debates about conceptions of justice, see here. An increasingly competitive market for legal services informed by a business and legal cultures that treat the public interest as nothing more than the aggregate of clients’ private interests help further reduce the space for justice in lawyers’ practice of law.
Simon, however, asserts the inherent importance of justice, both as the underlying value of the legal system and as the cornerstone of the attorney-client relationship. This is where the essay is at its best: while “[t]he private lawyer has a duty to advance the private interests of the client . . . the private lawyer is to seek the client’s goals within the limits of justice.” (P. 10, emphasis in the original.) In a day and age in which some worry that justice, and, in particular, lawyers’ “special responsibility for the quality of justice,” have become little more than rhetorical gestures as opposed to real commitments of the legal profession, Simon’s insistence on taking justice seriously by incorporating it explicitly into arguably the most important doctrine to lawyers and their clients, is not only refreshing, but a fundamentally important stance.
Critics may argue about the details of Simon’s proposal. Some may accept that strong confidentiality is too broad and agree that a “softer” approach may be warranted, but nevertheless wonder whether alternative formulations of moderate confidentiality not involving justice may exist. For example, the 1969 Model Code superseded by the current Model Rules featured a narrower approach to confidentiality, protecting only confidences and secretes as opposed to “information related to the representation.” Others may worry about entrusting to lawyers some kind of a gatekeeping role, making them unelected justice-kings who can override confidentiality when they, but not their clients, believe that “disclosure is clearly necessary to avert substantial injustice.” And yet others will no doubt question the administrative costs of moving from a bright line strong confidentiality to an open ended “substantial injustice” standard.
Such likely disagreements over the particulars notwithstanding, the essay makes a unique contribution making it a must read for clients, lawyers and scholars of the legal profession. It makes a powerful case for the inherent role justice must play in the practice of law and in doctrines that regulate it. Bill Simon, of course, is not a newcomer to either arguing about the importance of justice to the practice of law. This essay builds on and extends Simon’s extensive contributions in at least two ways: it gives “coherence to confidentiality exceptions by unifying them around a single, compelling concept – justice,” and it offers an understanding of confidentiality that is “responsive to cases that fall in the cracks between the current discrete exceptions.” (P.12.)
Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation)
, 83 Tenn. L. Rev.
843 (2016), available at SSRN
Few people would say that U.S. legal education is doing an absolutely perfect job. While there have been a number of different criticisms and reform proposals over the past thirty years, some common themes have emerged. One theme is that students are not equipped with the range of skills they need to help clients address multi-faceted issues in an interdisciplinary world. Additional themes are found in the influential 2007 Carnegie Foundation report. Summarizing this report, one coauthor explained that legal education has generally done a good job with respect to the “first apprenticeship,” which is the “cognitive apprenticeship” of teaching students to think like a lawyer; that legal education has made modest improvements with respect to the “second apprenticeship” which involves skills and practice; and that legal education has done a poor job with respect to the “third apprenticeship,” which involves professional identity and values.
One recent article that addresses these legal education gaps is Neil Hamilton and Jerry Organ’s “Thirty Reflection Questions” article. Thirty Reflection Questions begins by discussing the concept of “learning outcomes,” including learning outcomes related to professional identity and values. This article cites the definition of learning outcomes found in a 2015 ABA accreditation Guidance Memo: “Learning outcomes must consist of clear and concise statements of knowledge that students are expected to acquire, skills students are expected to develop, and values that they are expected to understand and integrate into their professional lives.” For those who have not paid particularly close attention to the ABA Council’s relatively new Standard 302, the interpretative Guidance Memo, or the related literature, Part I of the article provides a very useful overview of the learning outcomes accreditation requirement and the rationale that lies behind it. Part II discusses how a law school curriculum can be designed in order to foster learning outcomes related to professional identity, taking into account research from other fields and data about law student development. Finally, Part III contains the thirty reflection questions referenced in the article’s title. This Part explains how a law school or faculty member can use the thirty questions to help law students obtain meaningful post-graduation employment, acquire the competencies that legal employers and clients want, and develop their professional identity.
I particularly like Part III because of the way that it links the topics of post- graduation employment, the “competencies” that legal employers want their new hires to possess, and professional identity formation. Part III explains how a law school or professor can use a law student’s interest in the first topic – his or her own employment outcome – as a way to foster development with respect to the other two outcomes. The authors explain that the breakthrough in their own thinking was when they decided to go where the students are and to recognize that virtually all students want post-graduation employment that is meaningful to them given their life experiences, talents and passions. (P. 876.) The reflection questions provide an “enlightened self-interest” entry point for students to proactively develop the competencies they need to serve clients and the legal system well and to develop their professional identity and a commitment to the legal system.
Part III explains how legal educators can use what the article describes as “the 14 Roadmap curriculum questions” to achieve the outcomes listed above. (Roadmap is a reference to Neil Hamilton’s 2015 book entitled Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.) For example, Question 4 helps students better position themselves for the employment market by asking the following: “Looking at the competencies that clients and legal employers want, how do you self-assess what are your strongest competencies? How do others who know your past work/service assess your strongest competencies?” Question 10 helps students “progress in self-directed learning toward excellence at the competencies needed to serve clients and the legal system well” by asking: “How do you plan to use your remaining time in law school, including the curriculum and all the other experiences of law school, most effectively to develop the competencies that support your value proposition? Are you assessing your progress in implementing your plan?” The 14 Roadmap curriculum questions help each student identify: 1) that student’s strengths and interests; 2) employers that would be a good fit given that student’s strengths and interests; 3) the “value proposition” that the student brings to a particular legal employer; and 4) how that student might use his or her remaining time in law school to further develop and then communicate to potential employers that student’s competencies.
Students who have used the Roadmap curriculum questions appear to have benefited from them. For example, during Spring Semester 2015, 1L students at St. Thomas Law School completed the first fourteen questions, created a written professional development plan, and participated in a feedback meeting with a veteran coach. Self-assessment data collected at the beginning and end of the semester showed that the percentage of students in Stages 1 or 2 of self-directed learning (out of four stages) was reduced from 54.4% to 9.8%. By the end of the semester, more than 25% of the 1L students assessed themselves at the highest stage of self-directed learning. (P. 866.)
Thirty Reflection Questions offers the following description of its remaining sixteen questions:
If the 14 ROADMAP questions are designed to help the student determine what she wants to do as a lawyer as she writes the next chapters of her story toward meaningful employment, taking into account her strengths and passions and the needs of clients and employers, this second set of 16 questions is focused more on who the student wants to be as a lawyer, how she wants to conduct herself as a lawyer, and how she will balance her life as a lawyer in the context of her responsibilities to clients, to the legal system, and to all the other people in her life. These questions help the student navigate her relationship with clients and with the legal system.
Although legal educators may want to use the empirical data found in the Roadmap book to prompt students to think about the “competencies” that employers and clients value (and thus what it means to be a lawyer), there are a number of additional sources that one can draw upon. For example, although it has been more than twenty-five years since the ABA issued the MacCrate Report’s Statement of the Fundamental Lawyering Skills and Professional Values, stakeholders continue to use the MacCrate list as an important benchmark For a much more recent example, one can consult the 2015 Foundations for Practice study, which surveyed more than 24,000 lawyers in fifty states in an effort to identify the attributes and competencies that lawyers need in the short-term, medium-term, and long-term. The Foundations for Practice data, which is available in an interactive format and is also summarized in reports, show that employers want a much broader array of skills and characteristics than students might realize. For example, the surveyed employers wanted to hire students who had “competencies” that included, inter alia, communication skills, passion and ambition, integrity and trustworthiness, diligence, and common sense, as well as traditional skills such as legal research and writing.
Data from outside the United States is similar. Several jurisdictions have identified – and, in some cases, have adopted as regulatory requirements – the competencies required of new lawyers. Regulatory groups in Australia (see here and here), Canada (see, e.g., here, here, and here), England & Wales (see, e.g., here, here and here), and Scotland (here) are among those who have recognized that new lawyers need to possess competencies that go well beyond doctrinal knowledge and traditional legal skills. For example, Australia’s Competency Standards for Entry Level Lawyers include elements such as managing personal time, working cooperatively, and self-management. The National Entry to Practice Competency Profile adopted by the Federation of Law Societies of Canada includes client relationship management skills and practice management skills. The Statement of Solicitor Competence adopted by the UK’s Solicitors Regulation Authority includes competencies related to “working with other people” and related to “managing themselves and their own work.”
Competencies lists such as these are useful tools for law schools and legal educators who want their students to become better lawyers and who want to do a better job teaching professional identity and values. The Thirty Reflection Questions article is invaluable because it provides a roadmap educators can use to tie the competencies and professional identity material to student employment outcomes, which is an issue that students likely care about.
In sum, Thirty Reflection Questions by Professors Neil Hamilton and Jerry Organ provides a great service to all legal educators and, even more importantly, to students and to the clients they one day will serve. I encourage you to check out this very useful article.
Cite as: Laurel Terry, Looking For Competencies in all of the Right Places
(July 15, 2017) (reviewing Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation)
, 83 Tenn. L. Rev.
843 (2016), available at SSRN), https://legalpro.jotwell.com/looking-for-competencies-in-all-of-the-right-places/
The news about Russia’s interference in the U.S. election raises myriad questions for lawyers, including for students of the legal profession. For example, are Russia’s lawyers being trained in ways that position them to be complicit in President Putin’s increasing autocracy? Or is their education preparing them to challenge his control? Have they served as enabler or challenger in the past? Is there any reason to expect them to take a more activist role today? And generally, what explains the differences among nations in the ways lawyers pursue or forego action aimed at constraining governmental overreach and corruption?
These questions are among the topics explored by Kathryn Hendley in her work on the Russian legal profession and legal system. Hendley’s newest article, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, considers whether a group of recent law graduates “might be willing to take on the regime in defense of civil society.” (P. 452.) Her focus on lawyers arises from the recognition that “[l]aw has played a critical role in this strangulation of civil society” in Russia, on one hand, and that “[i]n some other authoritarian polities, lawyers have taken the lead in holding authorities to account, often paying a heavy personal price for doing so.” (P.451.) Their use of law’s mechanisms to pursue justice “act as signals … [that] may evince a nascent civil society ….” (P. 451.)
Hendley brings a career’s worth of insight and understanding about Russia to this question. Her starting point in this article is the observation that Russia’s lawyers generally “do not see their role as questioning the existing laws; they accept these as a given and work to maximize the benefits for their clients.” (P. 452.) While she notes exceptions, including the occasional lawyer who “represent[s] defendants in politically-charged cases,” (P. 452.) these do not support an expectation that lawyers will rise up in a public challenge to Putin. Nor is this simply a reflection of recent political regimes in Russia. Rather, as Michael Newcity wrote in an aptly-titled article, Why Is There No Russian Atticus Finch? Or Even a Russian Rumpole?, “casting lawyers, courts, juries, and judges in a positive, even heroic, light never took hold in Russia” despite widespread reforms initiated in 1864 based on “Western-style legal institutions.” Nevertheless, the question that Hendley raises is whether there is hope for change, particularly because “the legal profession is not static.” (P. 452.) he posits that change among those who study law and become lawyers in Russia may result in lawyers taking more activist roles. While it is not clear what, if anything, suggests that future lawyers will differ from past generations in this regard, one need only consider the forces of social media and information technology in recent world events to recognize the potential for more activist conduct.
To learn about this potential for change, Hendley has undertaken a new study focused on careers of Russian law graduates. This research is patterned on the After-The-JD study of US law graduates (P. 457.) and will involve a longitudinal study of law graduates who pursue various career paths. In this article, Hendley discusses results of a sample of 301 Russian law students who were about to graduate in 2015 from “a mix of state-funded and private law faculties from ten regions across Russia.” (P. 458.) The sample included students of various backgrounds and experiences who intended to pursue diverse career trajectories (including working in the criminal justice system, the state bureaucracy, corporate organizations (in-house positions), and private practice. (Pp. 457-459.)
One of the survey questions asked students why they decided to study law. Nearly 30% of the respondents identified their motivation as a “desire to change or improve society.” Hendley focused on this group, which she dubbed the “Social Change Group,” to explore their potential for challenging Putin’s policies and authority. (P. 460.) In order to understand what “change or improve society” means in the Russian law student context and what attitudes it suggests regarding politics and political activism, Hendley analyzed the characteristics of the Social Change Group in comparison to those of other respondents.
Hendley’s findings are disheartening if unsurprising: The “data provide no evidence of a willingness on the part of the Social Change Group to make waves or challenge the status quo in any meaningful way.” Rather, “their passion for changing and improving society will be expressed by yoking themselves to the Putin agenda.” (P. 477.) At the same time, students in the Social Change Group were not naïve; they indicated an awareness of the effects of politics on the legal system, including, for example, “recogniz[ing] the existence and power of extra-legal factors on the courts, such as connections and bureaucratic incentives.” (P. 477.)
Hendley places some responsibility for the Social Change Group’s support for Putin’s regime on Russian legal education, which has been “traditionally focused on studying the statutory codes, with the goal of mastering their intricacies.” (P. 454) Russian law students are taught in
[t]he tradition of studying law by memorizing the key sections of the major codes [, which] inculcates a deep respect for the law on the books among law students. They are not encouraged to question its content. They neither study the twists and turns of legislative history nor do they debate how the law might be improved. This lack of emphasis on critical thinking facilitates an unquestioning accep-tance of the status quo. (P.476.)
Hendley’s analysis of legal education’s role in the development of Russian law students’ professional identity emphasizes what is missing as much as what affirmatively is conveyed:
The sort of critical thinking that is the hall-mark of Anglo-American legal education is mostly absent from Russian law faculties. As a result, according to the typology of lawyers developed by Nelson and Neilsen, Russian lawyers are best conceptualized as technicians, rather than as advisors or hired guns. They rarely take a leadership role in solving problems. Instead, their clients take the lead. This is not unique to Russia, but is often found in authoritarian polities. (P. 454.)
In placing this responsibility on legal education, Hendley also highlights what she characterizes as the distinctively different approach of U.S. law schools, where teaching critical thinking is a common goal. Indeed, it is the focus of the Socratic Method. Critical thinking, after all, is the one thing that most agree is effectively taught in U.S. law schools. At the same time, it is almost an after-thought today, often absent from the current focus on students’ acquisition of specific practice skills, specialized knowledge and technological competency. But while these educational gains admittedly are important for new law graduates, they do not substitute for critical thinking in lawyers’ work. Amidst the debates about the shortcomings of U.S. legal education, critical thinking often is overlooked.
Hendley’s highlighting of difference offers some potential salve for the arduous experiences we are encountering in the U.S. today, including interference in the electoral system, political objections to the judiciary, threats to immigrants’ rights, and challenges to the relevance and continued viability of U.S. legal education. American lawyers’ response to the Trump Administration’s initial Immigration Order (aka the Muslim Ban) poses a stark contrast. It would be naïve to tie this difference in approach and attitude to a single source, of course, and many leading activists are not lawyers. But to the extent that legal education plays any part, it highlights the important role of US legal education in civil society generally. Which brings home yet another take-away from reading Hendley’s work: as is often the case, learning in a comparative context teaches as much about home as abroad.
Brad Wendel, Government Lawyers in the Trump Administration
, Cornell Legal Studies Research Paper No. 17-04
(2017), available at SSRN
In 1973, in what has come to be known as the Saturday Night Massacre, Richard Nixon attempted to fire special prosecutor Archibald Cox, prompting his own Attorney General to resign. In the wake of the Watergate scandal, the bar recoiled in shock as it acknowledged the number of lawyers complicit in illegal conduct. In this timely new article, Brad Wendel explores the obligations of government attorneys in an administration that has shown an unsettlingly similar disregard for legal limitations on its power.
It’s hard to keep up with the Trump administration’s distaste for dissent. Trump fired acting Attorney General Sally Yates when she refused to enforce his travel bans on individuals with visas from seven predominantly Muslim countries. White House Press Secretary Sean Spicer issued an ultimatum to state department civil servants, warning them to “get with the program,” and Senior White House Policy Adviser Steven Miller insisted that Trump’s national security decisions “will not be questioned.” Frustrated with the Washington Post’s coverage during the presidential campaign, Trump threatened to retaliate against owner Jeff Bezos by investigating Amazon for antitrust and tax violations. He responded to Judge Gonzalo Curiel’s unwillingness to dismiss a fraud suit against Trump University by insisting that the judge was biased because of his Mexican heritage. More recently, in a rage against the court that blocked his travel ban, President Trump tweeted an attack on the “so-called judge.” He vowed to use “enhanced interrogation techniques” and to throw flag burners in jail, with either ignorance or little regard for the fact that both have been determined to be illegal. Even Saturday Night Live spoofs prompt the President to engage in a barrage of social media insults.
Wendel easily convinces his readers that this administration has little tolerance for dissent, or what it might call disloyalty. In this climate, it is safe to assume that lawyers will be tested. Rather than wait for another Watergate scandal, Wendel offers a powerful guide for government lawyers. Building on his prior work, Wendel expresses little patience for arguments that a government lawyer owes her duties to the public or some abstract notion of the common good. He is disturbed by the arrogance or paternalism of a lawyer substituting her own opinion of what is in the public interest for that of her client. Most government lawyers do not serve the public interest writ large, but rather the particular agency in which they work. The people elect individuals to represent their interest, and it undermines both the democratic process and the rule of law when lawyers usurp that role.
The traditional obligations owed to the client do not, however, render the lawyer’s job ministerial. Drawing on the controversy over the now-famous torture memo, drafted by John Yoo and Jay Bybee, Wendel argues that lawyers have a fiduciary obligation to render competent, independent, and candid advice. While sympathetic to the context – The Office of Professional Responsibility’s (OPR) (an internal office devoted to ensuring that DOJ lawyers abide by their ethical obligations) report came shortly after 9/11 when the threat of terrorist activity seemed frighteningly real – Wendel concludes that the torture memo fell below these ethical standards. Wendel reminds attorneys who may be in a similar position in the Trump administration that, while OPR did not sanction Yoo or Bybee, it did conclude that it was a close question as to whether the lawyers intentionally or recklessly provided incompetent advice to their client. In an ironic twist, even Yoo believes that President Trump has an unhealthy attitude toward the power of the executive.
Amidst all of this, we have seen and are likely to continue to see an unprecedented number of leaks from within the administration. While it might be tempting to supply inside information to journalists, Wendel argues that government lawyers should think twice before following in Daniel Ellsberg’s shoes. Wendel discusses the ethics of whistleblowing for government lawyers and concludes that even the most well-intentioned act might be a betrayal of client confidences, a breach worthy of censure. The lawyer engages in misconduct if the disclosure does not fall under the exceptions in Model Rule 1.6 or 1.13, even if it is authorized by federal statutory provisions. Similarly, lawyers who were thinking of reviving Duncan Kennedy’s call for “sabotage” – the intentional rebellion against an evil client’s wrongful acts – are risking their license and betraying their professional obligations.
This does not leave government lawyers as defenseless pawns in President Trump’s game. Wendel explains that the government is designed with “competing power centers” to help preserve liberty, democratic accountability, and the rule of law. Lawyers can ethically work with their client to exercise this intra-branch check on presidential power, but they enjoy only a limited ability to do so. A lawyer can resign if her client persists in crime or fraud involving the lawyers’ services or if the client persists in a course of conduct which the lawyer finds repugnant. They have an obligation to the rule of law, which according to Wendel, is a culture of argument, or a “system for reasoned analysis through which norms can be contested and established.” It is this concept of a rule of law that limits government lawyers from caving to power.
With his usual grace and logic, Wendel presents a convincing account of a robust if limited role for lawyers in the Trump administration. They cannot run wild as moral arbiters of all that their bosses choose to do, but they play an important role in reigning in an administration whose respect for the rule of law is thin at best. Even more hopeful at a time in which our country seems so deeply divided, Wendel sets a course for professionals in preserving a rule of law that transcends partisan politics.
Wendel’s argument is most compelling when he discusses the role of lawyers in the Office of Legal Counsel and Attorney General’s office, whose job it is to provide advice on the legality of executive action. I’m not as persuaded when he includes lawyers who staff more bureaucratic positions, as it is not as clear that the law governing lawyers should or does limit their role quite as much. Career civil servants can be the last line of defense and an important form of resistance when traditional checks on naked power fail. Shouldn’t professionals who staff government agencies, like all civil servants, draw on their experience and knowledge to protect the public from unsound policies? Wendel implies that lawyers, who are essentially acting as civil servants, may have a greater obligation to give in to Spicer’s plea to “get with the program” than their nonlawyer counterparts, but there is something unsatisfying about a profession that bars its members from joining other bureaucrats in drawing on their experience and expertise to protect the public interest.
David Luban and I just finished a paper celebrating the 30th anniversary of the Georgetown Journal of Legal Ethics. It recounts the history of the subfield of philosophical legal ethics, organized around two generations of scholarship. The first generation located legal ethics within moral philosophy, seeking to connect the lawyer’s role with values such as autonomy, loyalty, and human dignity. First-generation scholars tended to agree with Arthur Applbaum that conventional and institutional considerations, such as social roles and rules of professional conduct regulating professions, did not relieve lawyers of the burden of articulating a justification, in ordinary moral terms, for their actions. The second generation, by contrast, regarded legal ethics as a branch of political philosophy, and the central problem not being individual moral agency, but the fact of a society characterized by a plurality of reasonable moral, religious, and political beliefs. A commentator challenged us to anticipate what themes the third generation of legal ethics scholarship would develop, and it occurred to us that we should add a fourth possibility, namely a radical position that is critical of the apparatus of positive law and liberal rights, perhaps as a kind of throwback to Critical Legal Studies.
Canadian legal theorist Allan Hutchinson’s recent book, Fighting Fair: Legal Ethics for an Adversarial Age, is just such a contribution to the debate. It is a fascinating combination of radical and old-school, with its reliance on virtue ethics and traditional conceptions of professionalism. Hutchinson rightly points out that the justification for the so-called standard conception of legal ethics, with its familiar tripartite structure of partisanship, neutrality, and non-accountability, is borrowed from liberal political and legal theory. (P. 43.) The problem with it, in a nutshell, is that the standard conception gives priority to the interests of clients over the public interest. (P. 53.) Of course, calling upon lawyers to pay more attention to the public interest has long been a staple of anguished reflections by lawyers and academics on the woeful state of the legal profession. Consider much-discussed books such as Mary Ann Glendon’s A Nation Under Lawyers and The Betrayed Profession by Sol Linowitz from the 1990’s, and more recent work such as Deborah Rhode’s The Trouble with Lawyers. What is distinctive about Hutchinson’s proposed reform of the standard conception is his analogy with the ethics of warfare. He anticipates that readers may blanch at that comparison. Doesn’t the legal profession need less adversarialness, not encouragement to think of litigation as war? Readers old enough to remember Sylvester Stallone action movies from the Reagan years will recall that an unethical style of practice was often referred to a “Rambo lawyering.” The so-called professionalism movement, which was active in the 1990’s, sought to restrain adversarial excesses and restore a spirit of cooperativeness and civility to litigation. Moreover, most lawyers are not litigators, and while it is true that transactional practice can be adversarial, in business practice there is at least the theoretical possibility of obtaining a good deal for all the parties. And what about lawyers who advise clients and bring them into compliance with the law? The warrior ethos central to Hutchinson’s book seems an inexact analogy for what many lawyers do in practice.
Hutchinson is fine with the adversary system. The distinction he really wants to hold onto within an adversarial arena is between soldiers—members of the armed forces of a state—and mercenaries. The contrast is one of motivation. Mercenaries are just in it for the money, while soldiers “are knowledgeable about war in both its operational and reflective dimensions, they respect the value of human life, and they are self-conscious of their moral responsibilities as soldiers.” (P. 61.) Modern lawyers, Hutchinson argues, are more like mercenaries than soldiers. Why? Because they are indifferent to their clients’ ends and committed only to a thin conception of the rule of law as procedural justice, unconcerned with substantive ends such as human rights. (P. 63.) By contrast warriors, after whom Hutchinson would prefer to model lawyers, “are as much concerned with honor and moral worth in how they go about their tasks as anything else.” (P. 65.) This contrast rings true for someone who has read extensively about the Bush Administration’s response to the September 11th terrorist attacks. The strongest opponents of the use of torture by the CIA and the uniformed services were military officers and lawyers. The warrior ethos proved to be one of the few ethical visions capable of resisting the relentless pressure from Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and other high-level political officials who wanted to take off the gloves when dealing with suspected terrorists.
The contrast between mercenaries and warriors suggests some openness on Hutchinson’s part to a return to virtue ethics. What distinguishes virtue ethics from more familiar consequentialist and deontological is the emphasis within the former on the dispositions of the agent to act, think, or feel in particular ways. A mercenary and a warrior both fight, kill, and risk death in combat, so the action in either case is the same; the difference is that a warrior goes into battle for the right reasons. Military ethicists have made serious attempts to grapple with emerging technologies such as remotely-piloted aircraft and unarmed aerial vehicles by using the techniques of virtue ethics. For example, a recent book by a U.S. Air Force colonel and F-16 pilot argues that fighter pilots engage in combat with “heart,” while stateside drone operators occupy a morally ambiguous position. The warrior ethos emphasizes the equality of combatants, as manifested in their mutual exposure to the danger of violent death. Of course, mercenaries also put themselves at risk—perhaps even greater risk if they serve in relatively less cohesive and well-trained units than regular soldiers—so that is not the distinction Hutchinson needs to ground his moral disapproval of lawyers as mercenaries. Hutchinson does follow Col. Riza in thinking that something like equality of combatants is a distinguishing feature of the warrior ethos, although he puts it more in terms of fighting fairly and refraining from humiliation. (Pp. 66, 91, 102.) The influence of virtue ethics comes through more clearly in Hutchinson’s repeated reference to fighting with honor and respect for one’s enemies, which is an addition to the body of just war theory from which he draws much of his argument. Standard jus in bello analysis looks at proportionality and the protection of civilians, but Hutchinson’s concern is also with whether soldiers act with virtues such as self-control, courage, and persistence. (P. 92.)
Hutchinson is a severe critic of what he calls traditionalists about legal ethics (p. 37), but ironically his position is, if anything, even more deeply rooted in the tradition of professionalism. Sociologists from Émile Durkheim in the Nineteenth Century to Talcott Parsons in the Twentieth have maintained that lawyers are intermediaries between citizens and the state, whose professional judgment can be exercised to meld disputatious individuals and groups into a common social order. Like Rousseau, who distinguished between private interests and the general will, lawyers understood their role as pursuing the private interests of clients within the constraints of the public good. Or, to use the term associated with the civic republican tradition, lawyers are in a better position than their clients, or for that matter official legal institutions like legislatures and courts, to exercise civic virtue – that is, an impartiality among private interests, with due concern for the public good or general welfare of society. In the Twentieth Century this ideal was expressed in Harvard Law School Dean Roscoe Pound’s definition of a profession as a group “pursuing a learned art as a common calling in the spirit of public service.” While neo-classical economists understood society as nothing more than an arena of competition for atomistic individuals pursuing their own interests, constrained only by the deterrent effect of sanctions for unlawful conduct, lawyers who subscribed to this ideal of professionalism sought to discern, internalize, and act on the general moral norms of their society.
The ideal of professions as custodians of the public interest was regarded with increasing skepticism throughout the second half of the Twentieth Century, and is now all but a dead letter. As Rebecca Roiphe shows in a recent brilliant synthesis, intellectual pressure on the traditional professional ideal came from two directions: public-choice theory, which understood laws as nothing more than something offered for sale on a market, in exchange for votes or financial support by organized interest groups, and the moral pluralism associated with Isaiah Berlin and the later Rawls, which emphasized the existence of multiple, incompatible reasonable conceptions of the public interest. After the collapse of the traditional professional ideal, legal ethics scholars sought to reconstruct the discipline as described above – in the first generation, as responsive to ordinary moral considerations such as dignity and autonomy, and in the second generation, as responsive to political ends such as procedural justice and the rule of law. Neither of these responses appeals much to Hutchinson. He finds the second generation barren and technocratic, and has surprisingly little to say about the first generation. (Canonical scholars like Luban, Postema, and Wasserstrom are not cited at all.) There is tension in Hutchinson’s book between radicalism and traditionalism, but in the end what wins out is a kind of nostalgia for a lost era of chivalrous combat between knights-errant, combined with an almost eschatological vision of “a future situation in which war will no longer be possible between the parties.” (P. 113.)
I’m all in favor of awaiting the coming of the peaceable kingdom, but in the present circumstances of comprehensive and pervasive disagreement about matters of public policy, I’ll stick with political liberalism and the rule of law as the starting points for legal ethics. However, I am more sympathetic than many within legal ethics to the revival of virtue ethics. I’m not sure the warrior archetype is the right analogy for what most lawyers do, most of the time, in practice. But I do think Hutchinson is right to focus attention on the idea of acting for the right reasons. I also worry quite a bit about the thinness of political liberalism as a basis for social solidarity. Atomistic individualism and rights-talk can lead to political polarization and paralysis of democratic institutions, and the result may be that professions become increasingly important as conservators of public values. Fairness is a value that is relatively less important in American political culture as compared with other English settler nations such as New Zealand. Hutchinson’s call to the legal profession to reorient its ethical norms around the idea of fighting fair is one possible response to the dysfunction of American political culture.
Jurisdictions around the world have adopted “access to justice” as an objective for regulation of the legal profession. Despite the widespread recognition of the importance of access to justice, there is no consensus on its meaning. Often commentators and advocates use the term to refer access to civil legal services for low income clients. In this article, Professor Bruce A. Green persuasively explains why such a connotation is entirely too narrow. He challenges readers to consider the meaning of “justice,” asking provocatively, “what happened to criminal justice?” One reason that I recommend reading this article is that it illuminates the pivotal role that prosecutors play in the pursuit of criminal justice and identifies specific steps that prosecutors should take to avert individual injustices, as well as systematic injustices.
To answer the question, “where are the prosecutors?” Professor Green first considers whether “access to justice” has been misappropriated by the civil pro bono movement. As noted by Professor Green, one justification advanced for focusing on civil justice is that indigent defendants who face incarceration are entitled to legal counsel. He explains that this rationale overlooks various limitations in Gideon v. Wainwright, 372 U.S. 335 (1963) and its progeny. Most notably, he clarifies that not all criminal defendants receive a qualified lawyer and that the Constitutional remedy for substandard representation is weak. To recognize the fact that there continues to be serious access to justice barriers faced by criminal defendants, Professor Green suggests that the bench and bar use their words carefully by not equating access to justice with access to civil justice. Rather he reminds us that no one should be “misled to believe that we have gone as far as necessary to secure criminal justice in this country.”
Using that exhortation as a jumping off point, Professor Green analyzes what it means for prosecutors to discharge their duties as ministers of justice and the organized bar’s role in influencing prosecutor conduct. As explained, the organized bar has largely focused these efforts on the minimal legal and ethical standards applicable to prosecutors and on prosecutors who fail to meet them. Although ABA Model Rule of Professional Conduct 3.8 is entitled “Special Responsibilities of a Prosecutor” and Comment (1) to Rule 3.8 states that a prosecutor has “the responsibility of a minister of justice and not simply that of an advocate,” the rule itself sets forth the minimum standards for a prosecutor to avoid professional discipline, such as the requirement for disclosure of information and evidence that is favorable to the defense. Beyond these minimum standards, Professor Green suggests a more demanding concept of a “good prosecutor,” urging the organized bar to spearhead serious examination of prosecutors’ justice-seeking role. Beyond abstract appeals, he identifies concrete contexts in which the bar can advance a more expansive role and recognize good prosecutors. He urges the organized bar to take the lead in tackling both individual injustices, as well as systematic injustices.
To illustrate how prosecutors should do more than the “minimum” to avert individual injustices, Professor Green uses the case of Anthony Ray Hinton, an exoneree who sat on death row for over 30 years, until eventually the U.S. Supreme Court acted. Although prosecutors in that case may not have violated minimum standards, Professor Green asserts that their duties as good prosecutors “presupposed that they take reasonable steps to avoid convicting innocent people.” In addition to describing specific steps that a “good prosecutor” should have taken, he suggests that the most important change may be prosecutors embracing the role as a minister of justice. He concludes by charging the bar to rethink its approach to criminal injustices. “When criminal injustices occur, the bar should ask–and try to answer—not only whether prosecutors caused the injustice, but whether good prosecutors could have prevented it.”
Prosecutors who serve as ministers of justice can play as important role as defense lawyers in preventing the conviction and incarceration of innocent persons. This is a perspective that the late Professor Monroe Freedman regularly shared with law students and new lawyers committed to advancing criminal justice. Professor Freedman encouraged them to seriously consider pursuing careers as prosecutors – as “good prosecutors.” Admittedly, Professor Freedman, like Professor Green, fully appreciated that the culture of prosecutors’ offices may make it difficult for prosecutors to “do justice” because of the incentives and disincentives. For example, does a prosecutor’s professional advancement largely turn on the number of convictions obtained. Good prosecutors should not be resigned to such organizational influences, but should lead efforts to shape cultures and incentives “to promote fair process, proportional punishment, and equal justice.”
In another article, Professor Green suggests that “doing justice” might mean “overcoming one’s own self-interest or ennui.” As stated:
In the face of contrary pressures and expectations, both external and internal, it may take a certain amount of inner strength (or strength of character) for an individual prosecutor to decide not to bring criminal charges or to dismiss criminal charges, to comply with procedural norms that make it more difficult to secure convictions, to confess error, or to seek to overturn a conviction that was unfairly procured. Id.
Professor Green, with Professor Ellen Yaroshefsky, examined the role of external and internal factors in an empirical study involving state prosecutors in seven offices in different parts of the U.S. In studying how the prosecutors handled pretrial disclosure, they learned that the principal influences on prosecutors’ decision making are likely “organizational factors.” Id. at 270. Based on their study findings they conclude that the “most significant factor influencing prosecutors’ decisions are office policy, informal understandings, culture and internal regulatory and supervisory practices.” Id. at 289. As suggested by the study findings, any serious examination of prosecutorial conduct must consider the dominant role that organizational influences play.
In responding to Professor’s Green’s question (Where are the Prosecutors?) and his call for action, the hope is that concerned persons will do more than revise professional conduct rules related to prosecutor conduct. Rather than being satisfied with rule changes that may address the conduct of individual prosecutors, the organized bar and prosecutors themselves should seriously examine and change ethical infrastructures and other organizational influences that shape prosecutors’ conduct and affect access to justice for criminal defendants.