Here is one way of describing the ethical challenge facing contemporary lawyers:
Traditionally, professions transcended the seller-customer relation because they met the challenge of moral difficulties, including evil, and emerged not only unscathed but triumphant. Today, legal professionals, fearing they cannot resist, let alone control, the moral pollution around them, retreat into technical virtuosity and specialized expertise. Cleanliness has become the aspiration of the profession. Lawyers seek purity by defining their cases and their work solely in terms of the abstract norms of professional knowledge. At the same time, they argue that to do anything else is dangerous and potentially immoral. To be anything other than a supplier of technical information is to dominate clients. At its best, it is paternalistic. At worst, it is power mongering. The claim is that there is no ethical way for the lawyer to meet moral difficulties. (PP. 158-9.)
It is as apposite a criticism of corporate lawyers-and their abdication from ethical commitment-today as it was in 1984 when it was first written. The paragraph is found near the end of Professor Rob Rosen’s book on lawyers in corporate decision-making that has recently appeared as part of an initiative to publish “influential” unpublished doctoral theses-in this case from UC Berkeley’s sociology department. What an excellent choice for such a series! Although Rosen has drawn on and published parts of the thesis in journal articles, it is a real treat to have the whole thesis now readily available, and with a Foreword by Professor Sung Hui Kim.
In its time Rosen’s thesis was a groundbreaking piece of empirical sociological research and ethical analysis of the emerging phenomenon of inside counsel. It remains a “classic”-and still very timely-dissertation for two main reasons: First, the design of Rosen’s empirical research is instructive and challenging for those of us who are interesting in doing sociology of the legal profession. Second, the way that Rosen combines sound and creative empirical sociological research with ethical insight, critique and analysis using literature on both the legal profession and organizations is an inspiring model for those who want to do solid social science research and make a normative contribution as well.
As Rosen points out in his preface to the 2010 edition, the methodology remains “distinctive”. The focus is on inside counsel, but the unit of analysis for the research is not individual inside counsel or their organizations, as it has been in most other studies of inhouse and other corporate lawyers. Rosen more productively chooses specific legal cases-particular instances of advice provided to industrial corporations-as his unit of analysis. That is, his object of study is not the person in the role of inhouse counsel, but the work that they do for the corporation in connection with the external lawyer and business manager. His methodology (explained in the original preface to the dissertation) thus involved first interviewing a range of inside counsel about their work. On this basis he identifies a number of specific problems or cases where legal advice had been provided. He went on to identify both the external lawyers and internal business managers involved in each case and interview them. This process yielded 70 interviews-but as Rosen points out, it is not the “counting” that is important, it is the ability to understand the complexity of how legal tasks are understood and structured from the perspective of the three groups of actors most centrally involved in creating and prosecuting them: “From these interviews with different participants, three versions of the same events emerged. I was thus able to reconstruct the problems to analyze the behavior of and the constraints facing the various actors.” (P. x.)
The substance of Rosen’s work in each of the substantive chapters is therefore based on rich description of particular cases in specific organizations from the point of view of several participants with different roles and commitments in each case:
Rosen’s study is therefore not based on interview data consisting of abstract pietisms or self-serving reflections from lawyers alone:
I therefore abandoned a set formula with abstract questions and concentrated on tracing the ramifications of particular decisions. The lawyers, who are used to answering specific questions about a case, like those presented in a deposition, seemed grateful for this more concrete method. In addition to being encouraged to focus on specific decisions, the lawyers also were asked how other lawyers handled or would have handled the same issue. … [This] prodded the lawyers to talk both about their action and about their reasons for acting. (P. xi.)
On this basis he is able to tell us about real products and real companies and the various legal services that become relevant in every day organizational life and processes. We learn about hiring and firing, about tax and patents, what happens when a chemical company starts selling to a beauty products manufacturer rather than a steel company, and what happens when a vitamin supplement becomes popular for the wrong reasons. We also find out about power struggles between lawyers and managers, and managers and managers, and how they are resolved.
There is much for scholars of the legal profession and legal ethics to learn here. It is often too easy think we are doing “law and society” type analysis of lawyers’ ethics when we begin and end with the lawyers’ view of his or her working world. But in this study the focus is on the lawyer’s work itself which inevitably leads Rosen to examine the connections between lawyers and the world of people and things in their organization and outside of it. It is only in understanding these relations (not just the lawyer’s view of them) that we can get any grip on the ethical world of the corporate lawyer, since ethics by definition involves how a person responds and relates to other people and things. In studying corporate lawyers’ ethics the questions must be: whose interests and influences (which other corporate actors? which other lawyers? in what relationships to one another?) are brought into action in what ways (through what processes of engagement, persuasion, argument, or threat? using what justifications to themselves and to others?) and with what effects (on people and things inside and outside the organization) through corporate lawyers’ work? This is the question that Rosen unfolds for us in this wonderful research. It should challenge those of us who work in this area to build on Rosen’s work and go even further tracing the lawyer’s work through not only the client and the external lawyer hired for the client, but also the lawyers and clients on the other side in contracts, disputes and litigation, the judges and those ordinary customers and others who might ultimately have been affected directly or indirectly by what the lawyers and their clients do together.
Rosen’s sound micro-sociology of lawyers’ work forms a robust basis for his more normative task – “my search for the bases of civic good in corporate legal services” (P. vii.) His empirical work informs us about the constraints and opportunities that individual lawyers experience in choosing to be either “rule-formalists” or “responsibility consultants”. Rosen goes on to connect this micro-sociology to broader themes in the sociologies of the legal profession and organizations in a most enlightening way. Ultimately Rosen addresses the (erroneous in his opinion) view that “certain choices are questions of business not of law” (P. 140.) by showing-empirically and normatively-that “rather than a split, a continuum exists between law and business. The law is not merely the formal derivative of public political processes. Law is part of all social processes.” Indeed. This is a central theme of law and society research, and here is a book well worth reading for how it demonstrates the value (in both senses of the word) of law and society research on corporate lawyers’ ethics.