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Out with the Old (Oaths): Lawyer Promises for a New Era

Lauren E. Bartlett, Human Rights and Lawyer’s Oaths, 37 Geo. J. of Legal Ethics 411 (2023).

What should new lawyers be required to promise, as a condition of entry into the legal profession? This inquiry raises existential questions about what it means to practice law. It can also prompt questions about the appropriate reach of lawyer regulation. Lawyer oaths—which are used to elicit promises from new lawyers in North America—should not be seen as merely symbolic and ceremonial (although they are certainly both these things). Lawyer oaths also intersect with core legal ethics questions. Thus, what is included in these oaths deserves our attention.

In Human Rights and Lawyer’s Oaths, Lauren Bartlett takes a deep dive into lawyer oaths, resulting in a comprehensive historical account of lawyer oaths in the United States, as well as a novel proposal for a way forward. In short, Bartlett contends that lawyer oaths can be “useful as a tool to build a dignified, respectful, and inclusive legal profession” but in order to function as such, “the unremarkable, irrelevant, inappropriate, discriminatory, and obsolete language in lawyer’s oaths must be removed and replaced by ethical guidance and aspiration” (P. 415). Bartlett points to human rights norms, specifically, as an optimal touchpoint for better aligning lawyer oaths with our current times. One potential benefit, according to Bartlett, is that human rights norms can point lawyers to more aspirational ethical and moral ideals than can be found in professional conduct codes, which tend to focus on minimum standards. Insofar as human rights norms transcend country borders and legal practice is increasingly globalized, Bartlett also argues that “legal ethics—and lawyer’s oaths in particular—should not stand out as separate from human rights”  (P. 437).

In Canada, we have lawyer oaths too. Recently, there have been legal challenges in one province, Alberta, to the requirement that new lawyers, among other things, take a mandatory oath of allegiance to King Charles. These challenges raise interesting issues of law, including constitutional questions as to whether the oath of allegiance violates constitutional guarantees to freedom of religion and equality.1 But, for me, these legal challenges have also triggered some more fundamental questions. Why have lawyer oaths in the first place? Are these oaths simply historical artifacts that we ought to jettison or is there something worth retaining here?

Bartlett’s article takes these questions head-on, beginning by reviewing existing justifications for lawyer oaths. These include the possibility that oaths can help imbue those entering the legal profession with stronger moral aspirations and a public service orientation, as well as provide a meaningful moment of commitment to one’s impending professional obligations. Bartlett also suggests her own additional justification: lawyer oaths can act as an effective goal-setting exercise. This framing creatively casts lawyer oaths as a moment of potential skills development. She observes that “[g]oal setting is an important part of strategic planning, an integral lawyering skill that every attorney must master” and taking an oath can reinforce such skills by providing new lawyers with the opportunity to set “professional and ethical goals to be met throughout their legal career” (Pp. 420-421).

Passing on “age-old traditions” has also been proffered as justification for lawyer oaths. The trouble with this line of argumentation, as Bartlett notes, is that much of the legal profession’s “traditions” are deeply exclusionary or otherwise archaic. Not all “legal traditions” are things that we want to pass on. In her article, Bartlett provides multiple examples of how outdated traditions and language can still be found in current lawyer oaths, such as Kentucky’s requirement that new lawyers pledge not to “duel,” the reference in the Supreme Court bar’s oath of admission to conducting oneself “uprightly,” and Oklahoma’s maintenance of a requirement that the oath be sworn to God (without also including an option to secularly affirm the oath). Bartlett further observes that some attempts to update lawyer oaths, including the addition of “civility” pledges, risk simply re-instantiating historical hierarchies under the guise of more modern language.

It is difficult to deny that lawyer oaths need a serious refresh after reading Bartlett’s thorough review. The outdated traditions and language she describes are all the more concerning when considered in conjunction with her observation that, in some states, lawyer oaths are relied upon to discipline lawyers.2 To move us forward, Bartlett suggests specific wording for a model human rights lawyer oath:

I promise to abide by the rules of professional conduct.
I will strive to treat all persons with dignity and respect at all times.
I promise to take action to ensure the full realization of human rights and fundamental freedoms for all. (P. 444.)

While this model oath deserves praise for its simplicity and clarity, there are some interesting questions, at least to me, about the third sentence referencing “human rights and fundamental freedoms.” Can this be an actionable and meaningful promise given the significant contestation (both social and legal) about how human rights and freedoms should be realized? How does promising to “ensure the full realization of human rights and fundamental freedoms for all” align with dominant conceptions of the lawyering role which center the pursuit of clients’ interests? Indeed, what conception of the lawyering role does underlie the giving of such a promise? Ought lawyer regulators be in the business of extracting pledges from new lawyers to promote and protect “human rights and fundamental freedoms”; in what way can this be seen as part of their mandate in regulating legal professionals? Each of these questions is worthy of serious consideration and could have been the subject of fruitful analysis. This is one area in which an otherwise thorough article might have benefited from some elaboration.

A different way forward is also presented in the piece. Along with proposing a model human rights lawyer oath, Bartlett puts forward examples of how oaths in three American jurisdictions (Ohio, Missouri, and California) could be updated with relatively minor changes in language. Bartlett’s suggested rewording includes a pledge to give “due consideration to safeguarding fair, equal, and meaningful access to justice for all” but does not reference “human rights and fundamental freedoms.” This raised another unanswered question for me: might referencing “access to justice” in lawyer’s oaths be more appropriate than pledges referring to “human rights”? Although “access to justice” is also a contested concept, it does seem more directly connected to lawyering and lawyer regulation than “human rights” while still providing a public interest, aspirational lodestar for new lawyers.

Outstanding questions aside, Bartlett did convince me – someone who was previously highly skeptical of the entire practice of new lawyer oaths – that there is likely something worth retaining here. Having a ritual that allows new lawyers to reflect on their professional obligations and ideals seems to be a very good and worthwhile thing, assuming we can get the language right. Even if one doesn’t fully agree with Bartlett’s thought-provoking proposal of turning to human rights norms as a way to modernize lawyer oaths, her article provides a helpful and needed prompt for further discussions about reforming this age-old regulatory ritual to meet the needs and demands of our time. I’ll be adding this article to my class syllabus next term and look forward to hearing from law students about what they think they should soon be promising as new additions to the legal profession!

  1. The claimants in these cases are lawyer applicants who, among other things, understand their belief systems to be inconsistent with pledging allegiance to a monarch. For an excellent summary of these legal challenges, see Anna Lund, “Alberta’s mandatory oath of allegiance is systemic discriminationCBA National Magazine (March 8, 2023). See, also, Wirring v. Law Society of Alberta, 2023 ABKB 580.
  2. One example provided by Bartlett is In re Kalil’s Case, 773 A.2d 647 (N.H.2001) wherein “the New Hampshire Supreme Court suspended an attorney for three months for failing to honor a statement in the lawyer’s oath that promised that lawyers ‘will do no falsehood, nor consent that any be done in the court.’” (P. 434.)
Cite as: Amy Salyzyn, Out with the Old (Oaths): Lawyer Promises for a New Era, JOTWELL (February 2, 2024) (reviewing Lauren E. Bartlett, Human Rights and Lawyer’s Oaths, 37 Geo. J. of Legal Ethics 411 (2023)), https://legalpro.jotwell.com/out-with-the-old-oaths-lawyer-promises-for-a-new-era/.

A Radical Assertion

Milan Markovic, Charging Abortion, __ Fordham L. Rev. __ (forthcoming, 2024), available at SSRN (September 13, 2023).

While Americans today are often starkly divided, they appear oddly unified in their general skepticism of American legal institutions. What was once countercultural is mainstream, as anti-establishment sentiment against “the system,” once reserved for hippies, is the common rallying cry of protesters and political leaders alike.

Enter Milan Markovic’s article, Charging Abortion, which makes a simple, unpopular, and therefore courageous point: maybe parts of the system can (and do) work. More specifically, this article makes the case that prosecutorial ethics can work to provide a thoughtful rubric to exercise principled discretion in difficult situations. Taking up the hot button issue of abortion (now in a post-Dobbs world,) Markovic tries to puzzle through a fundamental question: how should prosecutors opposed to criminalizing abortion individually do their jobs in anti-abortion states?

Some have argued that prosecutors should engage in “prosecutorial nullification” of anti-abortion criminal statutes, disregarding laws as passed because of personal opposition.1 To do so would violate existing standards and rules of ethics that apply to prosecutors—something Markovic is unwilling to set aside (p. 8). He is deeply skeptical of expanding prosecutorial roles, discarding professional norms, and having prosecutors substantively evaluate and correct errors in the democratic process. Whether a prosecutor thinks a law in the abstract is correct or not, Markovic is steadfast in recognizing fidelity to a prosecutor’s obligation to enforce it. The wrinkle in all of this is the publicly elected prosecutor. What if someone is elected in a locality opposed to criminalizing abortion but is in a state where abortion is illegal, and they ran on a platform of non-enforcement? Then, for democratic accountability, wouldn’t the prosecutor have to nullify on behalf of the public that elected the prosecutor? Here again Markovic would likely assert that a prosecutor never had the option to run on a nullification platform, because to be a prosecutor is to follow the law. The same way an attorney can’t get hired by a client by promising to falsify evidence or lie to the court, a prosecutor cannot, based on political opposition, refuse to enforce law. That’s not the mechanism our society provides to the public to amend law. Prosecutors, like all lawyers, can only offer services within the bounds of professional conduct.

Starting from this premise (whether one agrees with it or not), the article charts a practical path forward for prosecutors who can’t (or won’t) walk away from their longstanding general obligation to enforce law regardless of their own personal views. There are a host of reasons why a prosecutor might not feel comfortable, willing, or able to engage in categorical non-enforcement based on their personal, political, or institutional beliefs. Some prosecutors will reject prosecutorial nullification because of their ideological commitments to the rule of law. Others will adhere to concepts of role-differentiation that distinguish the lawyer as a person from the lawyer as an advocate. Prosecutors may fear losing their jobs for personal or professional reasons. Personally, they stand to lose their livelihood and reputational interest. Professionally, they may harbor deep concern over the impact of their departure on the system itself. If prosecutors skeptical of criminalizing abortion are fired or quit, their abdication of these roles in our system of governance is likely to be filled with individuals with more extremist enforcement views. Thus, the personally gratifying, morally clean choice of prosecutorial nullification may be in tension with the grimy and uncomfortable day-to-day reality of minimizing harms one case at a time.

Markovic’s article presents a meaningful rubric for rule-following prosecutors in a post-Dobbs age. His solution encourages prosecutors to rigorously focus on the typical features of prosecutorial discretion: when charging, think about the resources available, the evidentiary strength of the potential cases, the factual nuance between one case and the next—all with an eye towards the public good. A good prosecutor, this article argues, is always making individual charging decisions in the context of resources and what makes the most sense in ensuring the broadest benefit to society. Markovic argues that if one applies these metrics fully, prosecuting abortion should happen rarely and in only cases where it aligns with a host of complementary interests. Situating the discussion of abortion prosecution in this way, embraces longstanding values imbedded in prosecutors’ unique professional role as a lawyer for the people rather than any one person. Doing so places prosecutorial choices not to charge criminal anti-abortion laws on more solid footing. Prosecutors have always exercised wide latitude over charging decisions and routinely weigh the benefits of prosecution versus costs. Markovic argues that these factors are what can work in favor of non-enforcement, even categorical non-enforcement.

The article is particularly engaging when it moves from the theoretical to the more concrete, digging into some of the history of criminalizing abortion and cases in the abortion space that illuminate the legal context of criminal abortion. While one might have read a fair amount about abortion and constitutional law, Markovic connects how the criminal law surrounding abortion is intimately intertwined with professional licensure and market protectionism by the medical industry. The article notes how dating back to the early 1900s, prosecuting abortion faced challenges that often led to only the most egregious cases—those involving unsafe care and coercion—being brought. The article asserts this is still where prosecutors can (and should) spend their finite resources and efforts—evaluating the strengths of the state’s case one fact pattern at a time.

Building on this historical discussion, Markovic spends the balance of the article outlining how criminal abortion cases are not the best use of prosecutorial resources. Since the ability to bring an abortion case is testimony driven and involves reluctant witnesses, evidence is scant and difficult to confirm. Such cases will typically require significant resource investments to investigate and prosecute since they will be highly scrutinized on appeal (not only for the subject matter but the newness of the law in this area). Markovic also interrogates how these cases have unclear extraterritorial dimensions involving crossing state lines and conflicts of law issues, which can render them even more vulnerable on appeal. All in all, this article drives home the point that, for prosecutors, criminal abortion cases just aren’t the best use of limited resources. The law is unclear, the evidence is a mess, figuring out and getting the right parties into court is hard, and there is an increased likelihood of reversal on appeal. No matter what you believe about criminalizing abortion, Markovic argues that charging abortion is rarely the best option.

On the one hand, some will condemn this article for refusing a categorial zero-enforcement stance against state laws outlawing abortion. Others will slam this article for road mapping how to take the bite out of criminal anti-abortion laws. I like it precisely because it is something so many arguments and articles are not these days: pragmatic, nuanced, and with a slight tinge of optimism.

  1. W. Kerrel Murray, Populist Prosecutorial Nullification, 96 N.Y.U.L. Rev. 173, 208-209 (2021).
Cite as: Melissa Mortazavi, A Radical Assertion, JOTWELL (January 11, 2024) (reviewing Milan Markovic, Charging Abortion, __ Fordham L. Rev. __ (forthcoming, 2024), available at SSRN (September 13, 2023)), https://legalpro.jotwell.com/a-radical-assertion/.

The Making of Lawyers’ Careers

Robert L. Nelson, Ronit Dinovitzer, Bryant G. Garth, Joyce S. Sterling, David B. Wilkins, Meghan Dawe & Ethan MichelsonThe Making of Lawyers’ Careers: Inequality and Opportunity in the American Legal Profession (2023).

After the JD (AJD), is a national longitudinal study of legal careers in the United States, which tracked the professional lives of more than 4,500 lawyers during their first twenty years after graduating in 2000 and passing the bar exam. The first wave of interviews was done in 2002-3; the second wave in 2007; and the third wave in 2012-13. Subsequently, employment data for respondents has been updated through web searches through 2019. Some of AJD’s key findings are that female attorneys in every racial and ethnic group report higher levels of discrimination than their male counterparts; and attorneys of color, white women, and LGBTQ+ attorneys perceive high levels of workplace bias compared to white male attorneys and to respondents in other workplace studies.

Over the years, AJD researchers have published numerous articles reporting and discussing the study’s findings. Now, The Making of Lawyers’ Careers collects some of the study’s main findings. The book is organized in four parts: The Structure of Lawyers’ Careers, which revisits and explores the reality of lawyers in the United States clustering in individual and corporate “hemispheres” of practice; The Narratives of Lawyers’ Careers, which tells the stories of law firm, solo, in-house and government lawyers; Inequalities of Race and Gender, which investigates inequalities in the practice of law; and Public Roles and Private Lives, which studies public service, pro bono and lawyers’ satisfaction.

The Making of Lawyers’ Careers is essential reading for lawyers, law students, and anyone interested in the practice of law, lawyers’ careers, and the impact of law and lawyers on American culture and politics. Every chapter is a gem. For lack of space, I’ll discuss just three of my favorites here. Chapter 4, titled Race, Class, and Gender in the Structuring of Lawyers’ Early Careers, explains how gender, race, ethnicity, and socioeconomic class structure the careers of lawyers. The key conclusion is that these factors influence law school credentials, one’s first job, and subsequent mid-career choices, producing “a classed, raced, and gendered job structure in the legal profession.” (P. 66.) Specifically, “[c]areer outcomes are shaped by the accumulation of different kinds of social capital at each stage of the career process. The process begins when lawyers convert privileged social backgrounds into the college grades, elite undergraduate degrees, and LSAT scores that open the doors to elite law schools. Elite law degrees pave the way into more prestigious first jobs (most notably in large corporate law firms). The social capital of having worked in a large firm affords new opportunities, allowing these attorneys to move into corporations as inside counsel, to elite jobs in the federal government, and to smaller law firms. For a minority of attorneys – who tend to be white men with elite law degrees – starting in a large firm is the surest way to attain equity partnership in a large firm. The predictive power of educational credentials weakens as careers evolve, though educational capital, gender, and race all continue to shape lawyers’ career trajectories until at least mid-career.” (P. 68.)

These findings greatly enhance our understanding of the relationship between merit and equality in the American legal profession, debunking simplistic accounts pursuant to which success is attained by excellent hard working lawyers. The research shows that while merit and grit are essential to lawyers’ career growth, so are social capital endowments, identity capital, and credentials. The chapter establishes that talking about equality and inequality in the practice of law without considering the various ways in which forms of capital shape and inform lawyers’ careers is inaccurate and misleading. Moreover, opening the doors of the profession to all, for example, at entry-level positions of large law firms, and expecting so-called merit to take over resulting in equality in the ranks of equity partners ten to fifteen years later, is naïve if not foolish. Rather, those committed to making greater equality in the practice of law a reality must devise and implement promotion and retention policies, which take into account the impact of lawyers’ social and identity capital on their performance and its perception.

Chapter 5, titled Two Hemispheres Revisited: Fields of Law, Practice Settings, and Client Types, studies the work of lawyers in the twenty-first century. Its findings are insightful and profound. For example, the chapter’s findings regarding the geography of opportunity – most lawyers tend to move within the state in which they were first admitted – show that notwithstanding ample talk about increased mobility in the practice of law and the nationalization, even globalization, of law practice, we need to better understand local and regional mobility, their causes, and their effects.

A critical finding of Chapter 5 is that “most mid-career lawyers control how they do their work, which contradicts arguments that lawyers have become de-skilled or de-professionalized since the ‘Golden Age.’ Far more problematic, however, is their apparently scant control over how much they have to work,” (P. 82, emphasis added.). The importance of this finding cannot be overstated. As new classes of lawyer-employees (including in-house, staff, and temporary lawyers) continue to emerge and grow, we need to better explore and understand not only these lawyers’ loss of control over how they do their work, but also how lawyers’ (including large law firms’ partners and associates) loss of control over how much they work shapes and informs the meaning of their professional status.

Chapter 13, titled Dualities of Politics, Public Service, and Pro Bono in Lawyers’ Careers, is especially interesting. It finds that “[l]awyers’ politics are not a monolith. As in American society, gender and race/ethnicity are powerful determinants of the political identifications of lawyers. Within the profession, we see that graduates of elite law schools are far more liberal than graduates of tier four law schools. Most lawyers in elite law firms embrace both Democratic politics and the representation of business, a duality illustrated in our opening story of law student protests against Paul Weiss. Yet within this apparently stable constellation of elite practice and Democratic politics, our analysis of change over time reveals that if attorneys represent an increasing proportion of business clients over their careers their propensity to identify as Democrats declines.” (P. 219, emphasis added.) This duality defies naïve accounts of lawyers’ politics and demands nuanced future research into the complexity of liberal labels. Large law firm lawyers may identify as liberal and tend to vote for Democratic Party candidates, but they are far from liberal in meaningful ways. Because they represent and over time tend to become, if only implicitly, sympathetic to business interests and the “cause” of large law firms, they in fact advocate for and promote what are generally understood to be conservative agendas and interests.

In recent years, some law schools have supplemented the required legal ethics or law governing lawyers class with various offerings about the legal profession, law practice, and lawyers’ careers. The Making of Lawyers’ Careers should be a required reading in these types of classes. Indeed, it ought to become a cornerstone of every lawyer’s library.

Cite as: Eli Wald, The Making of Lawyers’ Careers, JOTWELL (November 21, 2023) (reviewing Robert L. Nelson, Ronit Dinovitzer, Bryant G. Garth, Joyce S. Sterling, David B. Wilkins, Meghan Dawe & Ethan MichelsonThe Making of Lawyers’ Careers: Inequality and Opportunity in the American Legal Profession (2023)), https://legalpro.jotwell.com/the-making-of-lawyers-careers/.

A New History of Legal Ethics

Michael Ariens has long been one of the best informed and most acute observers of the legal profession. His ambitious new book surveys the ethics of American lawyers from the Revolution to the present day. More precisely, it is a history of how lawyers talked about ethics in the nineteenth century, and of how lawyers and their organized associations, especially the American Bar Association, have tried to regulate ethics in the twentieth and twenty-first centuries. On these topics Ariens is extremely well-informed, and his footnotes are a comprehensive treasure trove of primary materials. He seems to have found almost every speech, tract, report, or regulation uttered by lawyers on the ethical principles that ought to define their professional identity, and on how lawyers actually live up, or fail to live up, to those principles.

Lawyers have always claimed to follow professional principles superior to their own commercial self-interest. In the early 19th century, Ariens says, American lawyers asserted that gentlemanly ideals of “honor” kept them from abusing clients or the public interest. Gradually talk of honor faded out, to be replaced with the more Protestant notion of individual “conscience” as the restraint on self-serving conduct. Lawyers deflected criticism onto scapegoats, blaming abuses such as meritless lawsuits or forensic trickery or defrauding clients on “pettifoggers”. Writers on legal ethics like David Hoffmann and George Sharswood advised lawyers to limit their zeal to avoid assisting injustice, deploring Lord Brougham’s famous advice that a lawyer must further a client’s interest to the utmost, heedless of harms to opposing interests or third parties. But, says Ariens, such strictures “did not match reality.” (P. 63). Lawyers argued they could be disbarred for bad behavior, but this rarely happened; a lawyer disbarred by one court could appear before another; and “neither the judiciary nor practicing lawyers showed much interest in disbarring venal lawyers to protect either the public or the profession’s claim to integrity during this time.” (P. 29). The public might be made uneasy by seeing famous advocates like Rufus Choate use courtroom wizardry to secure the acquittals of robbers and murderers, but lawyers assured their critics that such results were the unavoidable costs of assuring due process for everyone.

In the later part of the 19th century, critiques of lawyers intensified, some of them originating inside the profession. Some elite lawyers were disturbed by the ethical stretches that other elite lawyers like David Dudley Field resorted to on behalf of robber-baron clients like the Erie Railroad – such as seeking injunctions against opponents from judges their clients had corrupted, or causing opposing counsel to be arrested and held with high bail. Others saw the major threat to ethical conduct as emanating from immigrant, mostly Jewish, lawyers, who formed the vanguard of the new, contingent-fee financed, plaintiffs’ personal-injury bar. Elite lawyers in response organized bar associations, some (like New York City’s) with disciplinary authority; others, like the ABA, determined to codify ethical standards.

Much of Ariens’s 20th century narrative is devoted to the ABA codes, starting with the 1906 Canons. The earliest ABA-sponsored codes were framed as general and vague hortatory standards, but gradually evolved to become more detailed statements of disciplinary rules in the 1969 Model Code and the 1983 Model Rules of Professional Conduct. The 1969 Code, influenced by Lon Fuller, combined high aspirational standards (ECs, or Ethical Considerations), with criminal-code-like Disciplinary Rules (DRs), meant to serve as a floor on conduct. (Some of the DRs aimed higher as well, such as DR -7(102B) (if Lawyer learns of Client fraud, Lawyer must tell Client to rectify and if Client doesn’t, Lawyer may reveal the fraud.) A reform commission (the Kutak Commission) formed in the wake of the Watergate scandals thought the Code insufficiently public-interest-oriented, and initiated a reform effort. The effort backfired; trial lawyers hijacked the reform, and minimized lawyers’ duties to the legal system, adversaries, and third parties. The resulting Model Rules parked all the aspirational duties in the Preamble and in the admonition (mostly unheeded) in MR 6.1 to volunteer for 50 hours of pro bono practice. The Kutak Commission had wanted to reinvigorate the role of the lawyer as a social trustee and guardian of the integrity of the legal framework. In the 1983 revisions, “the lawyer’s duty to the public largely disappeared” and “as adopted, the model rules spoke to private interests almost exclusively.” (Pp. 242-3). Even such mild ethical precepts such as that lawyers should refrain from trying, on cross-examination, to make witnesses they reasonably believe are telling the truth to look like liars, were voted down.

The collapse of Enron and other corporations as a result of frauds blessed by lawyers and accountants led to further attempts to amend the Rules and regulate lawyers, chiefly by broadening the exceptions to confidentiality to require lawyers to reveal ongoing (or even past) client frauds. Law firms and the organized bar defeated SEC proposals and Model Rules changes to mandate disclosure, though the changes did permit disclosure, as many state versions of the Rules already had. Besides exceptions to confidentiality, the other issue that obsessed rules reformers – both in the ABA and in the American Law Institute’s project to Restate the Law Governing Lawyers – was imputation of conflicts of interests by mobile lawyers, namely, whether a lawyer who moved from a firm that represented Client A to another firm would preclude any lawyer in the new firm from representing Client B with a conflicting interest unless Client A consented; or could avoid the unconsented-to-conflict by being screened off from any information about Client B.

While all these relatively trivial debates were going on, the legal profession was facing momentous challenges. Big corporate law firms were getting bigger and richer, though under intense competitive pressure from expanding in-house corporate law departments, accounting firms, and specialized boutiques. Rainmaking partners took home the fattest paychecks. Meanwhile, law schools doubled the supply of new entrants in the 1970s and 80s, while the 80 per cent of the bar organized in solo practice and small firms saw their incomes stagnate and tried to protect them by bringing unauthorized practice actions against lay competitors. This constituency, represented in the ABA by the House of Delegates, also voted down proposals to allow lawyers to practice with other specialists. Most lawyers, as Ariens points out, are not wealthy; and it is not surprising that they should want their guilds to focus on economic well-being; to adopt ethics codes that prioritize the interests of themselves and their customers; and to be lax in enforcing disciplinary complaints against lawyers on the margins of their profession.

The contrast that Ariens keeps drawing throughout the book is between ethical principles narrowly focused on lawyer’s economic self-interest and those expressing some view of the public’s interests, which lawyers have always asserted their monopoly of practice and their zeal in representing clients are needed to protect. The master public principle is that of equal justice under law, which in turn as a practical matter requires equal, or at least minimal, access to the services of lawyers or effective lawyer-equivalents. But lawyers’ services are expensive, and, as Gillian Hadfield points out, made more so by having their price bid up by their high-end users, corporate clients;1 and most people can’t afford them except for routine matters. Over 80 per cent of litigants appear in court pro se. Inequality has been compounded by pariah clients – such as accused Communists in the Red Scare period of the Cold War, and Black clients in the Jim Crow and Civil Rights eras facing white adversaries – who could not find lawyers willing to take their causes. But even if not pariahs, clients without money are stranded unless they can make a plausible claim for a contingent share of a losing party’s damages; and plaintiffs’ lawyers must turn away most claimants as unprofitable.

One obvious path to solutions is insurance pooling, as once provided by auto clubs for auto accidents until the bar shut it down,2 and still provided by some labor unions’ group legal services plans. Another, of course, common in Western European welfare states, is public provision or public subsidies to legal services. The USA has of course some public funding – through the Legal Services Corporation, hobbled by low budgets and many restrictions on types of service, and through the Sixth Amendment’s mandate to states to fund indigent criminal defense, funding in most jurisdictions so stingy as virtually to compel malpractice. There is now some experimentation with lower-cost lawyer-substitutes such as paralegal providers, though these in most states are still blocked by the bar. Finally, there is a charitable sector – Legal Aid programs funded in part by the organized bar, in part by charities like the United Way; and volunteered pro bono time, chiefly by lawyers at Biglaw firms. The overall supply is very meager in relation to any plausible measure of the need.

Ariens’s core story is one of a lot of brave talk about law as a public profession serving the public good, belied by the reality of law as a business serving the interests largely of lawyers themselves, and then, at least insofar as these are congruent with their own interests, the interests of clients. Ariens sometimes hints (as lawyers often do) that public service may have been more prominent in the mix of lawyers’ motives in earlier times, and has declined as competition has increased. But more often he suggests that the public-serving rhetoric has always been hollow. And this is my one serious quarrel with this fascinating book.3 It is true that in its ethical codes and turf-protectionist activity, the American legal profession has more than most others been oriented to its own interests and those of its private clients. But it has also, in comparison to legal professions in other societies, and to other professions in its own, devoted a disproportionate share of its members’ time and effort to public projects.

Lawyers argued the case for Revolution, wrote the federal and state constitutions, and designed the legal architecture of national capitalism and the modern regulatory state, as well as (rather less admirably) of racial enslavement and “massive resistance” to racial equality and of America’s overseas empire. ”59% of U.S. presidents have been lawyers although just four of the last ten and 68% of vice presidents. Since Independence, some 63% of cabinet positions have been occupied by lawyers, ranging from 100% of Attorney Generals, 78% of Secretaries of State, 70% of Secretaries of the Treasury, 25% of Secretaries of Veterans Affairs and 23% of Secretaries of Labor. And all Supreme Court judges have come from a law background.” In 1849, an astonishing 79% of members of the national Congress were lawyers – though that number is down to 36% today.4 This doesn’t count innumerable positions as state and local legislators, civil servants, administrative agency heads, or counsel to public entities. And to these public-sector jobs, we obviously have to add service as public-interest advocates. Between them, the NAACP Legal Defense Fund, the American Civil Liberties Union, and environmental organizations have made, as litigants, a very large share of the constitutional and administrative law of the 20th century. (Litigants affiliated with the Federalist Society bid fair to do the same in the 21st century.)

Lawyers still step forward to provide emergency representation of unpopular clients, such as the Guantanamo Bay detainees and the Muslim immigrants trapped in airports by Trump’s travel ban. It is this record that continues to attract a substantial contingent of applicants to law schools, and to inspire even those who choose (or anyway start off in) corporate-law careers to look for opportunities for pro bono and government service. When jobs have opened up for public-minded lawyers, as they did for example during the New Deal, lawyers in private practice have applied for them in droves.

This record of service is something to bear in mind while appreciating Ariens’s astute and comprehensive survey of lawyers’ private practice ethics.

  1. See generally, Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justce System, 98 MICH. L. REV. 953 (2000).
  2. See Nora Freeman Engstrom & James Stone, Auto Clubs and the Lost Origins of the Access-to-Justice Crisis, forthcoming.
  3. Actually I have another quarrel as well, though I put it in a footnote to avoid seeming petty and self-serving. Ariens is as I’ve said quite comprehensive in his survey of the literatures on legal ethics. He even includes some sociological studies of ethics-in-practice, such as Jerome Carlin’s classic works. But he almost entirely ignores academic work on legal ethics; and that is a pity, because in the last 40 years that field has for the first time attracted a substantial body of first-rate scholarship, some philosophical, some sociological. I would imagine that Ariens might give as a reason for ignoring this very rich literature is that it has had limited practical influence in shaping the everyday regulation of the bar’s ethics; and that is, unfortunately, probably mostly true.
  4. See Nicholas Robinson, The Decline of the Lawyer-Politician, 65 Buff. L Rev. 657, 667 (2017).
Cite as: Robert Gordon, A New History of Legal Ethics, JOTWELL (October 30, 2023) (reviewing Michael S. Ariens, The Lawyer's Conscience: A History of American Lawyer Ethics (2023)), https://legalpro.jotwell.com/a-new-history-of-legal-ethics/.

The Silent Heroes of European Legal Integration

In The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe, Tommaso Pavone provides a paradigm-shifting perspective on the roles of judges and lawyers in the development of the European Union’s legal system. Unlike many works in the legal profession literature that portray judges as the dominant figures and lawyers as subordinate, Pavone presents a compelling argument that lawyers, in fact, took the lead in constructing the laws and regulations of the European Union. Using 353 interviews with legal professionals across Italy, Germany, and France, as well as participant observation in national courts, Pavone offers a richly detailed account of how lawyers shaped the legal construction of the European Union.

Pavone’s book challenges the widely held belief, especially among Anglo-American scholars, that judges enjoy a high degree of autonomy and direct power to make law. In contrast to their common law counterparts, continental European judges are described in the book as legal bureaucrats who are occupied with routine tasks and face significant internal and external controls from the judiciary and other branches of the state apparatus. Pavone’s extensive interviews and fine-grained ethnographic accounts reveal that European judges were generally uninterested in legal innovation, particularly when it comes to the application of EU rules in the early years of the European Union. This finding contradicts the mainstream “judicial empowerment” thesis in the international law literature, which posits that the construction and dissemination of EU law were primarily the result of European judges’ judicial innovation. This is a key contribution of the first half of the book, shedding new light on the limited role of judges in the construction of the EU legal system.

Pavone’s findings regarding the limited autonomy of European judges will not come as a surprise to students of civil law jurisdictions. The bureaucratic nature of continental courts makes judges risk-averse and subject to the institutional logics of the judicial system. This is a familiar challenge for civil law judges. For instance, recent studies of divorce judges in China have also demonstrated similar institutional constraints, such as the need for efficiency and stability. The ability of continental judges to effect legal or political change is typically limited. This stands in sharp contrast to the innovative role played by “Euro-lawyers,” which is investigated in the second half of the book. The powerlessness of judges in the first half of the book provides an important contrast to the more proactive role of a small group of Euro-lawyers in shaping the development of EU law.

The Ghostwriters is a significant contribution to the sociolegal scholarship on the legal profession, breaking new ground in several aspects. One novel aspect of Pavone’s research is his spatial analysis of law firm locations, which reveals the existence of “two hemispheres” of the bar in the practice of EU law. Large law firms located in major cities employ Euro-lawyers who primarily serve corporate clients, while smaller towns lack the necessary expertise or interest in EU law. As a result, EU-related cases only occur when Euro-lawyers travel to these places.

While the two hemispheres of the bar in the practice of EU law are primarily divided between large law firms in major cities and smaller towns lacking the necessary expertise, Pavone’s research reveals that this boundary is not as rigid as in other fields. In investigating the history of EU law development, he finds that the key actors were not only the legal elite in Brussels and the European Court of Justice, but also lawyers who possessed expertise and experience with EU law and practiced elsewhere in Europe, including in small firms and peripheral locations. Some of these lawyers later moved to larger firms, blurring the boundary between the two hemispheres. This dynamic illustrates the importance of individual lawyers in shaping the development of EU law, regardless of their location or institutional affiliation.

Although the experiences of early Euro-lawyers in promoting EU law may resemble those of cause lawyers who seek legal or social change, a closer examination reveals notable differences. First, the “cause” that united these lawyers was the legal integration of the European Union, but some lawyers had unique local agendas. This is exemplified in the case of football regulation, where two lawyers in the northern Italian town of Rovigo utilized their professional networks to influence judicial decisions and demonstrate the relevance of EU law to local judges and the Italian public, who are passionate about football. From football to wine to olive trees, the causes that Euro-lawyers championed on the ground vary widely, and there was no uniform agenda.

Second, while many cause lawyers in the sociolegal literature work for individual clients or serve public interests, Euro-lawyers often represent large corporations or government offices and do not typically mobilize with civil society organizations. Their positions in the legal and political spheres are much closer to the court and the administrative state, and their work strategies and status in the legal profession are shaped by their spatial proximity to the state. Therefore, it would be incorrect to view EU lawyering as simply another form of cause lawyering.

As Euro-lawyers increasingly concentrate in economic hubs and large corporate law firms in recent decades, it becomes challenging to compare them to public interest lawyers in the United States or “die-hard” lawyers in China who stand up for weak individuals against state power. Pavone characterizes these lawyers as “ghostwriters” who not only lobbied national judges to uphold European rules but also ghostwrote their legal documents as a way to advance EU law and promote institutional change. In a sense, they are “court-adjacent professionals” who took advantage of the knowledge gap between Brussels and national courts, as well as the disinterestedness of local judges, to build a career in EU law. However, as judges across Europe become more familiar with EU rules, it begs the question whether they still need ghostwriters as they did in earlier periods. Pavone’s book does not provide a clear answer to this question, but it is something worth considering as we observe the evolution of EU law over time.

For readers more interested in judges than lawyers, an important question raised in the book is whether the bureaucratic and routine nature of judicial work is a feature of continental law or a more general pattern also found in common law courts. It would be incorrect to assume that common law judges are free from institutional constraints and willing to invest their time to develop expertise in laws outside of their local jurisdictions. The conservative orientation of national judges is perhaps a universal phenomenon, with few exceptions. The distinctiveness of Europe lies in the plural legal orders of EU law and national law that coexist and simultaneously shape judicial work. Nevertheless, the extent to which Pavone’s arguments and findings can be applied beyond continental Europe is a question that awaits future research.

Overall, The Ghostwriters is a compelling and insightful book that challenges our assumptions about the legal profession in several important aspects. Pavone’s research offers a unique perspective on the spatial dynamics of the legal profession and highlights both the institutional constraints of judges and the importance of ghostwriting lawyers in advancing transnational law in Europe. The book’s analysis of the “ghostwriting” phenomenon sheds light on the ways in which Euro-lawyers have navigated the complex relationship between EU law and national legal systems. While the book lauds the contributions of these “silent heroes” of EU law, it is important to acknowledge the legal and political obstacles they face in navigating the ever-changing European legal landscape.

Cite as: Sida Liu, The Silent Heroes of European Legal Integration, JOTWELL (September 22, 2023) (reviewing Tommaso Pavone, The Ghostwriters: Lawyers and the Politics behind the Judicial Construction of Europe (2022)), https://legalpro.jotwell.com/the-silent-heroes-of-european-legal-integration/.

Innocence, Integrity, and Rule Reform

Bruce A. Green, Should Prosecutors Be Expected To Rectify Wrongful Convictions?, 10 Texas A&M L. Rev. 167 (2023).

In Should Prosecutors Be Expected To Rectify Wrongful Convictions?, Bruce Green makes a compelling argument for why the titular question should be answered with a resounding “yes.”

To understand what is at stake, it’s best to start with a few statistics:

The National Registry of Exonerations identifies more than 3,000 wrongly convicted individuals who have been exonerated since 1989—likely a tiny fraction of the innocent men and women who have been made to serve time. Black individuals are up to 19 times more likely to be wrongly convicted of certain crimes than their white counterparts. Also chilling, “official misconduct”—most often involving the concealment of exculpatory evidence by prosecutors or their investigators—is present around 40% of the time.

Official misconduct can—and sometimes does—occur even after conviction, either in the form of outright deception or prosecutors’ failure to act, when confronted with evidence of the inmate’s innocence. This, too, happens with unnerving frequency. Consider Andrew Swainson. He was wrongly convicted of first-degree murder in 1989, and prosecutors refused to reopen their investigation even after a key witness recanted his testimony. In another case, the Manhattan DA’s office initially ignored an informant’s admission that he and another gang member, not the convicted defendants, were responsible for a shooting. And more recently, prosecutors in Wayne County, Michigan opposed Davontae Sanford’s motion to reverse his conviction, even after another man confessed to the murders. It took Sanford another eight years to be exonerated.

No one likes the idea of innocent people serving time for crimes they did not commit. So what explains this troubling prosecutorial resistance?

A few culprits spring to mind: Once they have attained a conviction, prosecutors, like lots of people, might be overly confident in their own judgment and reluctant to admit error.1 Cognitive dissonance likely kicks in; prosecutors think they are careful and competent, and they are, understandably, reluctant to admit that, as to this defendant at that time, they blew it—to devastating effect.2 And, an admission of fault sometimes comes with scrutiny, harsh judgment, and potentially an after-the-fact civil rights claim—and that’s apt to be unpleasant.3

Aside from all that, there are also institutional reasons for prosecutors’ resistance: Prosecutors might want to discourage frivolous post-conviction claims.4 They might believe that denying the existence of wrongful convictions promotes public confidence in criminal processes. And they might believe that opening the door to wrongful conviction claims undercuts the important finality interest of victims, delaying recovery and closure.

Recognizing that (1) even after conviction, some prosecutors do come across solid evidence of defendants’ innocence, and (2) left to their own devices, some prosecutors need a push to do the right thing, in February 2008, the ABA took action. In particular, the ABA’s House of Delegates added two new provisions to Model Rule of Professional Conduct 3.8, the rule that sets forth the “Special Responsibilities of a Prosecutor.” Considered in tandem, these new ethical obligations help to promote post-conviction disclosure.

Rule 3.8’s new Subsection (g) is triggered “[w]hen a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted”—i.e., evidence that an eyewitness’s identification was off or a forensic report was unreliable. Regardless of where the conviction occurred, the prosecutor must disclose the information to the court or other appropriate authority—and, if the conviction occurred in the prosecutor’s jurisdiction, the prosecutor must also disclose the information to the defendant and “undertake further investigation, or make reasonable efforts to cause an investigation” to determine whether the conviction was wrongfully obtained.

Subsection (h) then kicks in at the end of the above reinvestigation. It directs the prosecutor to “seek to remedy the conviction” if there is clear and convincing evidence that the defendant did not commit the offense.

The logic and humanity of 3.8(g) and (h) are undeniable. And it’s a credit to the ABA (and to Professor Bruce Green, who was instrumental in the provisions’ passage) that, fifteen years after Subsections (g) and (h) sailed through the ABA’s House of Delegates, twenty-four states have adopted these provisions in some form.5

Yet, in other states, acceptance has stalled, running aground on the shoals of prosecutorial opposition. Most prominently, the U.S. Department of Justice, which did not oppose the ABA’s passage of the provisions, has gone on record urging states to reject them.6

It is this prosecutorial opposition that motivates, and lies at the heart, of Should Prosecutors Be Expected To Rectify Wrongful Convictions?. In particular, in the piece, which is essentially a reply to the provisions’ critics, Green lays out four arguments frequently voiced in opposition to 3.8(g) and (h). Then, in a methodical and lawyerly fashion, Green proceeds to demolish those arguments.

First, Green considers—and rebuts—critics’ contention that rectifying wrongful convictions isn’t in prosecutors’ job description.7 Prosecutors, Green argues, as officers of the executive branch, have a special duty to ensure that the state does not punish innocent people. When it’s not filing letters opposing Rule 3.8(g) and (h), the DOJ has even conceded as much: “We are responsible not only for enforcing the law, but for upholding the Rule of Law. We are responsible for protecting civil rights and for pursuing justice for all Americans.”

Second, Green considers—and answers—critics’ argument that prosecutors are too biased to fulfill their 3.8(g) and (h) responsibilities. Here, Green points out, if there is a problem of bias, it’s easily overcome because, when carrying out a reinvestigation, an office can simply assign prosecutors who did not work on the original case.

Third, Green addresses the claim, voiced by some critics, that Rule 3.8(g) and (h) are overkill, as prosecutors can be counted on to rectify wrongful convictions even without the Rule’s say-so.8 Here, one counter is easy: The incontrovertible evidence suggests that at least some prosecutors need a push. Then, Green further asserts that, even if the provisions do merely codify existing practices, they’re still important, as they express a commitment to justice and signal to current and future prosecutors that rectifying wrongful convictions is an essential part of the prosecutorial role. (P. 725.)

Fourth and finally, Green tackles critics’ claim that Rule 3.8(g) and (h) are unduly burdensome9 and will force prosecutors to fritter away “time and resources that are limited and, in some cases, entirely unavailable.”10 (P. 726.) Countering this argument, Green observes that the provisions are subject to a high evidentiary trigger—only evidence that creates a “reasonable likelihood” that the defendant did not commit the offense may qualify. And, fatal for this “unduly burdensome” argument, prosecutors in the twenty-four states that have adopted Rules 3.8(g) and (h) have not reported that the provisions hinder their work.

Green’s message is clear: In the United States, we’ve got to do a much better job preventing and correcting wrongful convictions. And, while codifying Rule 3.8(g) and (h) is no panacea, it is a step in the right direction. With half the states fully on board, these provisions—and the values they embody—sit at a crossroads. Coming at this critical juncture, Green explains why jurisdictions that haven’t adopted Rules 3.8(g) and (h) ought to take a second look.

Further, as a proud alum of the Criminal Division of the DOJ, embedded within Green’s fine piece, I saw one additional message. The piece, that is, offers a blunt wake up call to the Garland DOJ, which publicly voices certain commitments—including that it will “pursu[e] justice for all Americans”—but has resisted critical efforts to ensure that prosecutors, when confronted with evidence of wrongful convictions, are duty-bound to take easy, common-sense steps. When it comes to Rule 3.8(h) and (g), it’s high time, in other words, for the DOJ to reevaluate its position.

  1. For an excellent short primer on overconfidence bias and its pernicious effects, see David Shariatmadari, Daniel Kahneman: ‘What Would I Eliminate If I Had a Magic Wand? Overconfidence’, Guardian (July 18, 2015).
  2. For cognitive dissonance, see Kristin Wong, Why It’s So Hard to Admit You’re Wrong, N.Y. Times (May 22, 2017).
  3. While prosecutors are entitled to absolute immunity, see Imbler v. Pachtman, 424 U.S. 409 (1976), wrongfully convicted defendants still have some routes to recovery.
  4. Bruce A. Green & Ellen Yaroshefsky, Prosecutorial Discretion and Post-Conviction Evidence of Innocence, 6 Ohio St. J. Crim. L. 467, 475-76 (2009).
  5. A compilation of enacting jurisdictions appears in Green’s piece at P. 706, note 34.
  6. See, e.g., Letter from Jenny A. Durkan, U.S. Att’y, U.S. Dep’t of Just., to Clerk of the Sup. Ct. of the State of Wash. (Apr. 28, 2011),  [hereinafter DOJ Washington Letter].
  7. In its letter opposing the enactment of Rule 3.8(g) and (h) in Washington State, for example, the DOJ fell back on the notion that “[t]here is no reason why the rules of professional conduct should treat a prosecutor who is a stranger to the case any differently than any other member of the bar.” DOJ Washington Letter, supra note 6, at 3.
  8. See, e.g., Letter from Matthew Schneider & Andrew B. Birge, U.S. Att’ys, E. & W. Dists. of Mich., to the Judges of the Mich. Sup. Ct. (Aug. 30, 2018). In other states, the DOJ has opposed the rule because there’s insufficient evidence that, in that particular jurisdiction, “an innocent prisoner was kept in prison because a prosecutor knew of and suppressed post-conviction evidence of innocence.” DOJ Washington Letter, supra note 6, at 2. Yet, that absence of evidence is hardly reassuring because the whole point of Rule 3.8(g) is to bring that information, which is otherwise easily suppressed, to light. The idea that, in the absence of a mechanism to promote disclosure, information hasn’t been disclosed is not a solid indication that problematic information does not exist.
  9. DOJ Washington Letter, supra note 7, at 6 (“One likely consequence of adoption of these new Rules would be that prosecutors, and their resources, will be diverted from prosecuting crime to investigating convicts’ claims of ‘new’ evidence . . . .”).
  10. While Green does not explicitly make this point, it’s also worth noting that critics’ third and fourth arguments are internally inconsistent. It can’t simultaneously be true that (1) one needn’t enact Subsections (g) and (h) because prosecutors already take these salutary steps and also (2) enacting Subsections (g) and (h) will be too burdensome because it thrusts on prosecutors a new and weighty set of responsibilities.
Cite as: Nora Freeman Engstrom, Innocence, Integrity, and Rule Reform, JOTWELL (August 10, 2023) (reviewing Bruce A. Green, Should Prosecutors Be Expected To Rectify Wrongful Convictions?, 10 Texas A&M L. Rev. 167 (2023)), https://legalpro.jotwell.com/innocence-integrity-and-rule-reform/.

So it Seems

As faith in government institutions plummets, the legal profession continues to ponder what it can do to reverse this trend. Bar association talks and panel discussions tackle what role the profession can play in upholding the rule of law and democracy. Most of these discussions are theoretical. Some are grounded in constitutional law and the rules of professional conduct, but few draw on empirical work to answer this critical question. Matthew Kim begins to fill this hole with his article, For Appearance’s Sake: An Empirical Study of Ethical Dilemmas in the Legal Profession, which draws on original data to identify when the public loses faith in lawyers and judges.

So much of the law governing lawyers rests on untested empirical assumptions. Kim questions some of these hypotheses and intuitions, drawing useful conclusions for lawyer regulation in the process. Kim asks when private lawyers, judges, and prosecutors ought to be sanctioned for the appearance of impropriety. He does so by setting out to understand what it is that leads the public to lose faith in the legal system. In other words, what sort of behavior by lawyers triggers a decline in confidence in the judicial process? Not only does his article begin to answer this relevant and pressing question, it also provides a roadmap for addressing similar unproven assumptions that form the cornerstone of the system of lawyer regulation.

Specifically, Kim sets up his inquiry to determine what conduct by lawyers and judges undermines faith in the judicial system even though it may not technically violate specific rules of professional conduct. By doing so, he seeks to shed light on what the general prohibition against the “appearance of impropriety” means in the ethical codes of lawyers and judges. One might assume that the appearance of impropriety standard does not figure strongly in the contemporary law governing lawyers or that it is confined to government lawyers and judges, but Kim carefully chronicles both the history of the concept and its continued relevance.

As Kim notes, the 1908 Canons of Professional Ethics included a general prohibition against the appearance of impropriety. While this was merely aspirational, the drafters of the Model Code carried the concept forward and many states include this general prohibition in their rules governing lawyer conduct even when they did not violate a specific rule. Most states retain a prohibition against the appearance of impropriety despite the fact that in 1983, the drafters of the Model Rules of Professional Conduct omitted it. Some of these states allow for the disqualification of private lawyers when the sole basis for doing so is the appearance of impropriety, while others consider the appearance of impropriety as a factor in determining lawyer discipline.

Those who support the appearance of impropriety standard justify it by insisting that lawyers’ conduct that complies with the rules of professional conduct can still cause the public to lose faith in the judicial system. This, in turn, undermines the legitimacy of courts. To test this premise, Kim identifies three types of behavior that do not violate the rules of professional conduct but may still cause a decline in faith in courts and the profession. He concludes that a potentially imputed conflict, communication with a person who seemed to be represented by counsel, and the failure to report client fraud have a measurable effect on the public’s faith in the judicial system.

Basing his conclusion on a survey response to series of hypothetical scenarios about lawyers, Kim reasons that conduct like this ought to be sanctioned under the appearance of impropriety standard because his data confirms the empirical assumption that it undermines the legitimacy of courts. While interesting and provocative, this conclusion is not inevitable. Perhaps, instead, the public needs to be better informed or educated about lawyers and their proper role. The contours of the rules regarding conflicts, communications with represented persons, and reporting client fraud are, after all, designed to balance different interests.

If lawyers are disciplined for behavior that is not covered by the rules under the appearance of impropriety standard, it might tilt this balance in an undesirable way, chilling lawyers from engaging in useful advocacy. In addition, given the fact-specific scenarios involved in Kim’s research, it would be hard for lawyers to structure their representations to avoid discipline without more guidance about what specific conduct would subject them to discipline.

Many states hold judges and government lawyers to a different standard, reasoning that these are positions of trust and therefore even an appearance of impropriety can have a grave effect on the legitimacy of the judicial system. Some states that do not authorize discipline against private lawyers for engaging in conduct that involves an appearance of impropriety do subject government lawyers and judges to this standard.

Kim’s empirical work casts doubt on this distinction. His data suggest that the public does not distinguish between private lawyers and government lawyers or judges. The nature of the lawyer’s role as a private attorney, government lawyer, or judge does not determine whether and how much faith the public loses in the judicial system. From this, Kim concludes that all lawyers should have to avoid an appearance of impropriety, not just government lawyers and judges.

Again, Kim’s work provokes important questions. Is there a reason to treat government lawyers and judges differently even if their misconduct doesn’t disproportionately lead the public to lose faith in institutions? As Justice Brandeis noted in a different context: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead v. United States, 277 U.S. 438, 468 (1928) (Brandeis, J., dissenting). In the context of legal ethics, perhaps the profession is watching government lawyers and judges and modeling its conduct on theirs. In addition, the nature of the government lawyer’s client, which is often an agency head or the public broadly, may also mandate a different calculation. This may suggest other reasons for holding government lawyers to a higher standard even if the public does not see the relevance of the distinction for its faith in legal institutions.

Grounding important ethical questions in empirical work brings a new perspective to significant problems and can lead the profession to revisit some of its most basic assumptions. Kim’s work is an important contribution. Even if the reader does not fully embrace all of his conclusions, his research invites the profession to refine its analysis and ask more precise questions in addressing lawyer misconduct and for that reason it is a critical contribution that provides a model for future research as well.

Cite as: Rebecca Roiphe, So it Seems, JOTWELL (July 12, 2023) (reviewing Matthew Kim, For Appearance’s Sake: An Empirical Study of Ethical Dilemmas in the Legal Profession, 83 Ohio State L. J. 529 (2022)), https://legalpro.jotwell.com/so-it-seems/.

A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring

Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __ Harv. L. Rev. __, (forthcoming), available at SSRN (Feb. 17, 2023).

Once upon a time, when I was a 2L at the University of Chicago, every student who wanted to clerk had to first meet with a professor on the clerkship committee. In anticipation for this meeting, my fellow students and I were required to identify a list of fifty1 judges that we were interested in applying to clerk for. The professor then provided advice and guidance on that list and each individual student’s likelihood of success of obtaining a clerkship based on the list presented.

I remember my meeting with the professor well. I was very frightened that he might tell me I didn’t have a chance at clerking, and I really wanted to clerk. My fear was, thankfully, unfounded, as he provided me with reasoned advice about the list of judges I had presented him with. My list, I think, may have looked different than that of some of my classmates because I had included every Black federal appellate court judge in the country. I specifically asked the professor about a few of these Black judges, and I remember him saying something like the following: “Most of the Black clerks in this country are hired by Black judges. Apply to them all.”

I assume (but do not know for sure) his comment wasn’t based on empirical evidence. I assume his comment was based on years of experience and knowledge. But now, we have an interview-based empirical study to prove that his comment was indeed correct. In Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Federal Courts of Appeals, Judge Jeremey Fogel, Professor Mary S. Hoopes, and Associate Justice Goodwin H. Liu conducted in-depth individual interviews with fifty active judges of the federal courts of appeals and demonstrate that the professor’s anecdotal advice was true.

Now, to be honest, I did not need this empirical study to know that most Black clerks are hired by Black judges. As it turned out, I was hired by a Black federal appellate court judge. When I went to the all circuit law clerk training in New Orleans, I couldn’t help but notice that the only two Black clerks in the room were myself and my co-clerk—clerks of the only Black judge in the circuit at the time. And when my colleague from law school went to their all clerk training in a different circuit, they texted me to say that they were the only Black clerk in the room (they also clerked for a Black federal appellate court judge). In short, I am painfully aware of the ways in which the legal profession enacts a multitude of barriers that make it harder for Black law students and lawyers to obtain the credentials that are considered to be the most elite and prestigious.

This is why I am immensely grateful for the careful and detailed work Judge Fogel, Professor Hoopes, and Justice Liu did to prove what was already obvious to so many of us. Their Article is expansive and aims to provide critical information and insight about law clerk diversity from actual sitting federal courts of appeals judges. The authors are overwhelmingly successful in their task. Through their in-depth interviews with federal courts of appeals judges, they gathered information about how judges hire and gleaned numerous insights. For example, they find that judges like to hire what they call an “ensemble” of law clerks with differing strengths and characteristics. They also find that Republican appointees were more likely than Democratic appointees to prioritize socioeconomic diversity when hiring law clerks. Additionally, their findings suggest that judges who graduated outside the top twenty law schools were much more likely to hire clerks from outside the top twenty schools. Interestingly, they found that most judges explicitly considered gender in clerkship hiring, but some judges felt strongly that it would be inappropriate to consider race while engaging in the hiring process. This begs some questions about why it would be proper to consider gender and not race but that analytical wrinkle is beyond the scope of this Jot. All of these findings are important and valuable. As legal educators, we should take this information in and consider it as we are advising our students.

That said, I am personally most interested in the authors’ findings related to race.

First, they find that many of the judges who state that they are supportive of racial diversity in law clerk hiring report difficulty in hiring Black and Hispanic law clerks. Second, they note, despite the above finding, that Black judges are successful in hiring Black law clerks. Based on the information they gathered, they estimate that Black judges, who make up only one-eighth of the active federal appellate court judges, are hiring about half of all Black clerks at the federal court of appeals level. As such, what the authors have found, in my view, is that there may be lost opportunities in matching clerks of color with judges who do view racial diversity to be a positive and appropriate consideration when hiring law clerks. If the study’s findings are correct that there are more judges who would like to see more racial diversity in law clerk hiring than are actually hiring demographically diverse law students, then the natural question is how could the gap between the judges’ hiring preferences and actual hiring practices be better aligned.

I lateraled from Notre Dame Law School last year, but some of the innovations that I was most proud of while there were changes implemented under the leadership of Professor Nicole Garnett to the school’s clerkship program. In particular, Professor Garnett instituted a number of practices that increased the demographic diversity of students who went on to clerk from Notre Dame. The first was a robust campaign on her part to encourage students of color and first-generation law students to clerk, even when their grades might not be in the very highest percentages of the class. The second was to do her best to figure out what judges were particularly interested in hiring demographically diverse law clerks and putting those students in front of those judges. The third, and I think perhaps the most important, was to ensure that every student who received a clerkship interview had a faculty interview prior to their clerkship interview.2 Interestingly, each of these strategies comes up, in a way, in Fogel, Hoopes, and Liu’s article.

For example, they find that “with few exceptions, judges who consider race in the context of conventional hiring criteria (i.e., top grades at top schools) reported limited success in hiring Black and Hispanic clerks.” See Draft at P. 34. When Prof. Garnett was organizing the faculty to get more law students clerkships, one of the things she would emphasize to us was the importance of explaining to judges why a student who maybe didn’t have the very top grades would still be able to do the work and be an excellent law clerk. It is imperative that law professor recommenders assuage any concerns a judge might have about the ability of a law clerk applicant to perform high-quality and excellent work. Importantly, the authors asked judges who had been successful at hiring racially diverse law clerks if they had concerns about the work product provided, and these judges overwhelmingly responded that the work was solid regardless of race, student rank in class, or law school U.S. News Ranking. See Draft at P. 47-48.

Additionally, one of the concerns expressed by the judges interviewed by Fogel, Hoopes, and Liu was confusion on how to improve the demographic diversity of their pool of law clerk candidates. See Draft at P. 37-38. Judges partially attributed the failure to diversify their law clerk hiring to a limited pool of diverse applicants. Now, some of this failure has been properly attributed to the judges themselves. If a judge were to call the clerkship coordinator at a law school and signal that they wanted more demographically diverse law clerks, I would be shocked if packets of applications weren’t in their offices shortly thereafter. Nonetheless, Fogel, Hoopes, and Liu did find examples of judges doing something quite like this and being met with resistance from law school administrators and faculty! See Draft at P. 40-41. Asking schools for a diverse pool of applicants is, however, an active strategy of recruitment, and Fogel, Hoopes, and Liu found that many judges who stated that racial diversity was of importance to them were nevertheless not engaged in active recruitment. Professor Garnett, to her credit, was engaged in active attempts to glean this information. If she found out this was important to a judge, she could then steer students to apply. That strategy—when paired with a focus on ensuring that letters of recommendation addressed concerns a judge might have—was, in my own view, incredibly effective.

Finally, Fogel, Hoopes, and Liu did find that judges were aware of a variety of ways in which disparities within students’ backgrounds and professional and familial connections could impact the law clerk hiring process. Indeed, one judge explicitly noted that “a lot of minority students don’t have the network that other students do.” Law schools must help recruit more demographically diverse law clerk applicants, but they must also advise those applicants meaningfully all the way through the application process. I think a number of law schools are doing this work, but I can say I walked into my clerkship interviews completely cold with no real preparation. I can also say that I screwed up my first interview all on my own, and I wonder if I had been mooted if I would have made the same mistakes. Thankfully, I rebounded and did better during my second interview. I spent an amazing and treasured year learning about the law and what excellent (and not excellent) advocacy looks like, while receiving the benefits of small group mentoring from a judge committed to training the next generation of lawyers. But my story could have ended quite differently.

As legal educators, we need to think about the part we play in the story of our students. Are we encouraging them? All of them? Or are we telling them, either implicitly or explicitly, to opt out early? And what are we doing to proactively put our students in positions where they can exceed the expectations they have for themselves? How can we position them to excel? Fogel, Hoopes, and Liu tell us quite a bit about what goes on in law clerk hiring—and it is now on us as legal educators to do something meaningful with it.


Editor’s note: for a previous review of this article see Aliza Shatzman, Diverse Judges and Their Diverse Clerks: A Rare Window into Appellate Law Clerk Hiring, JOTWELL (January 27, 2023).

  1. We were told that we were limited to applying to fifty judges, because the faculty was concerned that the power of their recommendations might be diluted if judges were receiving multiple recommendations from a faculty member for the same clerkship term.
  2. I participated in some of these interviews, and I believe strongly that these moots with faculty helped to level the playing field between students who did not have natural and obvious mentors to help them prepare for clerkship opportunities.
Cite as: Veronica Root Martinez, A Better Understanding of How to Improve Demographic Diversity in Federal Appellate Law Clerk Hiring, JOTWELL (June 14, 2023) (reviewing Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law Clerk Selection and Diversity: Insights From Fifty Sitting Judges of the Federal Courts of Appeals, __ Harv. L. Rev. __, (forthcoming), available at SSRN (Feb. 17, 2023)), https://legalpro.jotwell.com/a-better-understanding-of-how-to-improve-demographic-diversity-in-federal-appellate-law-clerk-hiring/.

The ChatBots are Coming!

Andrew M. Perlman, The Implications of ChatGPT for Legal Services and Society, The Practice Magazine, March/April 2023 issue (2022).

Andrew Perlman has made legal technology one of the themes of his successful deanship at Suffolk University Law School. He has also taken national leadership roles on law and technology issues, as the chief reporter of the ABA’s Commission on Ethics 20/20, with the charge of modernizing the Model Rules in light of globalization and digital technology, and as vice chair of the ABA Commission on the Future of Legal Services. He was selected as the inaugural chair of the governing council of the ABA’s Center for Innovation. Dean Perlman is therefore ideally positioned . . . to be replaced by a robot.

Many law professors have been playing around with ChatGPT, a chatbot released in November 2022. The developer, Open AI, an artificial intelligence research company, describes the chatbot on its website: ”We’ve trained a model called ChatGPT which interacts in a conversational way. The dialogue format makes it possible for ChatGPT to answer follow-up questions, admit its mistakes, challenge incorrect premises, and reject inappropriate requests.” One tweet, reproduced in an article on the technology, showed the output in response to the prompt, “Write a biblical verse in the style of the King James Bible explaining how to remove a peanut butter sandwich from a VCR.” I doubt that most humans – even a pretty good humor writer – could have done better. Anyone who follows law professors on Twitter has seen academics having a field day inputting their law school exams into ChatGPT or asking hard questions about technical areas of law to try to stump the system. In most cases, the chatbot has performed astonishingly well, providing not only technically correct answers but also demonstrating facility with style and rhetoric. ore ominously, a technology company CEO and a legal scholar had ChatGPT take the multiple-choice portion of the bar exam, the MBE, using the study questions published by the National Conference of Bar Examiners. The chatbot was correct on 50.3% of the questions, as compared with an average of 68% for human test-takers, and would have earned passing scores on the Torts and Evidence portions of the exam.

Perlman may have started out just playing around, but he ended up writing a serious article about ChatGPT and its impact on the practice of law. Actually, I should say, ChatGPT wrote a serious article, because all Perlman did was feed the system prompts, some of which the chatbot used to write portions of the paper (“Describe potential use cases for GPT-3 in the legal industry,” p. 4), others of which provided an opportunity for the system to demonstrate its capabilities (“Draft a brief to the United States Supreme Court on why its decision on same-sex marriage should not be overturned,” p. 5, or “I have a disagreement with my child’s school district in Massachusetts regarding the creation of an IEP. What should I do?” p. 11). But Perlman chose good questions to ask the chatbot and got remarkably sophisticated answers.

When I wrote something a few years ago for a symposium on lawyering in the age of artificial intelligence, the consensus seemed to be that AI systems were great at routine tasks like e-discovery and compliance reviews of thousands of contracts, but AI was a long way from threatening the core competencies of which the practice of law is comprised. These competencies include in-court appearances, negotiation, fact investigation, strategic decisionmaking, empathetic understanding of clients’ legal and non-legal needs, and the application of existing knowledge to new or rapidly evolving areas of law. Nevertheless, I tried to take seriously the potential of AI and tried to determine whether there was a boundary separating machine and human intelligence insofar as they bear on the practice of law. Josh Davis is in the final stages of a book taking a sophisticated theoretical approach to this question, but also landing on the conclusion that there are some tasks, such as adjudicating legal disputes, that cannot be automated. Davis and I both contend that there is an irreducible element of normative judgment in legal decisionmaking that cannot be modeled, at least with existing technologies. Davis ties this to specific views about the nature of consciousness within the philosophy of mind as well as a jurisprudential thesis about the relationship between law and morality; I tried to connect it with a claim about agency and reason-giving.

We have been hearing predictions for several decades about the impending obsolescence of lawyers. The threat is not just from technology but other trends such as the in-house counsel movement and the unbundling and outsourcing of routine legal services. Nevertheless, the traditionally organized legal profession, including the so-called BigLaw sector, has proven remarkably resilient in the face of these disruptive forces. Of course, this is what Kodak executives said about the threat of digital photography. The legal profession may be vulnerable to an industry-killing technological advance, and sophisticated AI-enabled natural-language database searching may be one of those advances.

Lawyers will be tempted to play defense by using unauthorized practice of law (UPL) rules against ChatGPT. In an influential opinion, a district court in Missouri concluded that software that prepared a legal document in response to answers given by a user to a series of questions is engaged in the unauthorized practice of law. There is a risk that the aggressive use of UPL rules may draw attention from the Federal Trade Commission, particularly if there are ways of regulating directly what UPL rules seek to do indirectly. As Perlman – or, I should say, the chatbot – points out, one of the risks inherent in using AI tools to provide legal advice is that the system may not be sufficiently reliable or be as alert to nuances in the law as a human lawyer would be. (Pp. 10-11.) This concern may be addressed, however, using traditional negligence and products liability principles. In theory there is no reason the ability of an AI system to provide legal advice could not be assessed in the same way as a court or jury would evaluate the performance of a Tesla self-driving car – if the automation does as well as a human at a particular task, then the AI system has satisfied the duty of reasonable care. If ChatGPT is just as good as a human lawyer in walking a parent through a dispute with a school district over the creation of an Individualized Education Program (one of Perlman’s prompts), the legal profession’s monopoly on the provision of these services becomes much harder to justify.

Like lawyers, ChatGPT can have self-congratulatory tendencies. Perlman asked the system to write a poem on how it will change legal services. Yeats it ain’t, but the middle two stanzas illustrate the promises of AI:

Gone are the days of endless research and tedious work
With ChatGPT at our side, answers will no longer elude
It will help us find solutions and avoid pitfalls and quirks
And make the practice of law more efficient and smooth

No case will be too complex or too hard
ChatGPT will guide us through with ease
It will be a trusted companion and guard
Helping us to provide the best legal services with expertise

(P. 14) I have been a skeptic for a long time about the claims that technology is going to fundamentally change the market for legal services, but with the release of the most recent version of ChatGPT I’m no longer so sure.

Cite as: W. Bradley Wendel, The ChatBots are Coming!, JOTWELL (May 12, 2023) (reviewing Andrew M. Perlman, The Implications of ChatGPT for Legal Services and Society, The Practice Magazine, March/April 2023 issue (2022)), https://legalpro.jotwell.com/the-chatbots-are-coming/.

The Complex Picture of Aging Lawyers

Angela Melville, Valerie Caines & Marcus Walker, The Grey Zone: The Implications of the Ageing Legal Profession in Australia, 24 Legal Ethics 141 (2021).

The “baby boomers” of the English-speaking West are those born from the late 1940s to early 1960s,  and, as the name suggests, there were a lot of them. Despite their advancing age, and recent COVID-19 threats, this generation remains the second-most numerous in the USA.1  In Australia—the subject of Angela Melville, Valerie Caines and Marcus Walker’s paper—the same generation dwarfed all others until very recently.Consequently, there are many aging lawyers leading to what has been described as an impending “senior tsunami.”

Melville, Caines, and Walker provide an analysis of the available data on the Australian legal profession to trace a range of intersecting concerns around its aging profession. This is the first analysis of its kind in Australia, and it is a clear and nuanced examination with some sensible recommendations. The study reflects the findings of the first and second Joint Committee on Aging Lawyers established by the National Organisation of Bar Counsel and the Association of Professional Responsibility Lawyers (NOBC-APRL), which noted:

there is a great number of lawyers with tremendous experience, insight and wisdom that can be shared with newer members of the bar. These same lawyers can devote themselves to valuable public service and improvement of the profession. The bad news is that there is an ever increasing risk of more lawyers with age-related impairments and insufficient preparation for transitioning away from practice before a crisis forces that transition.

The Committee’s recommendations included a call to gather demographic information to construct a database and to study the challenges of an aging lawyer population. Melville, Caines, and Walker respond to this call. To begin, they find that Australian lawyers are aging—the proportion of solicitors 60 years and above has been increasing. Unsurprisingly, older Australian lawyers are overwhelmingly male: 13% of male solicitors are over 65 as compared to only 2% of female solicitors.

Melville, Caines, and Walker consider the likely causes of an aging lawyer population, including increasing life expectancy (still the case in Australia despite the pandemic), decisions to delay retirement associated with access to pensions and economic hardship concerns, and an enduring sense of identity and fulfilment in work.

The authors then turn to the consequences. Age-related cognitive impairment has received attention from scholars and regulators in the U.S. While there is an increasing focus on mental illness, age-related cognitive decline is not much discussed in the Australian profession. Melville, Caines, and Walker do not explain why the Australian profession differs on this account but speculate on why lawyers in both countries might continue to ignore competence concerns. It might be hard to detect when they are slowly developing symptoms. Lawyers value intellectual prowess above all else. Where decline occurs, lawyers might find it hard to ask for health accommodations for fear of stigmatization and other professionals unwilling to “have those difficult conversations” with a declining colleague.Melville, Caines, and Walker consider studies of lawyer discipline which support a possible thesis of age-related decline—the average lawyer in the dock is an older male. They sensibly do not conclude that this is proof of age-related decline but rather consider other age-related factors contributing to misconduct. For instance, older lawyers might struggle with new technology. Older lawyers predominate in solo or small practices. Leslie Levin has described the range of complex structural and cultural factors that might lead to lawyers in these firms being more subject to complaint.

The article also provides an excellent discussion of the differing impacts of aging for male and female lawyers. As women lawyers age they do not have wage parity and consequently as large of a savings for retirement. Baby boomer women lawyers, while they are more likely to have experienced interrupted careers, might feel a sense of loss and grief in relinquishing a hard-fought-for career. Finally, the authors reflect on the largely unspoken impact of menopause on women lawyers. These are all factors that require further study and consideration by the profession.

So what to do about negative implications of an aging workforce? Melville, Caines, and Walker consider potential regulatory responses to age-related cognitive decline, such as mandatory reporting. Unlike Australia, mandatory reporting of ethical misconduct, including that caused by mental impairment, has long been in place for many U.S. and Canadian lawyers. Yet, as they concede, commentators have documented a range of flaws of this system including being reactive and a lack of compliance.2 This is therefore not offered as a complete solution. Mass retirement is also not recommended but they urge reimagining careers to support professional regeneration and public orientation through mentoring and development of emeritus pro bono programs. They draw on data documenting a lack of succession planning in many legal practices and point to the urgency of redressing this problem.

Melville, Caines, and Walker’s article is recent, but their data is largely pre-pandemic. Yet, this does not detract from the importance of their work to sound an alarm and call for action. While the article focuses on the negatives, they also suggest the importance of recognising that older lawyers have much to give to the profession if we adequately plan to better capitalise on these strengths.

  1. Baby Boomers trail Millennials by a fairly small margin. Richard Fry, Millennials Overtake Baby Boomers as America’s Largest Generation, Pew Research Center (2020).
  2. See for instance, Andrew Flavelle Martin, Mental Illness and Professional Regulation: The Duty to Report a Fellow Lawyer to the Law Society 58 Alberta L. Rev. 659 (2021).
Cite as: Francesca Bartlett, The Complex Picture of Aging Lawyers, JOTWELL (April 17, 2023) (reviewing Angela Melville, Valerie Caines & Marcus Walker, The Grey Zone: The Implications of the Ageing Legal Profession in Australia, 24 Legal Ethics 141 (2021)), https://legalpro.jotwell.com/the-complex-picture-of-aging-lawyers/.