Feb 20, 2017 Susan Fortney
Jurisdictions around the world have adopted “access to justice” as an objective for regulation of the legal profession. Despite the widespread recognition of the importance of access to justice, there is no consensus on its meaning. Often commentators and advocates use the term to refer access to civil legal services for low income clients. In this article, Professor Bruce A. Green persuasively explains why such a connotation is entirely too narrow. He challenges readers to consider the meaning of “justice,” asking provocatively, “what happened to criminal justice?” One reason that I recommend reading this article is that it illuminates the pivotal role that prosecutors play in the pursuit of criminal justice and identifies specific steps that prosecutors should take to avert individual injustices, as well as systematic injustices.
To answer the question, “where are the prosecutors?” Professor Green first considers whether “access to justice” has been misappropriated by the civil pro bono movement. As noted by Professor Green, one justification advanced for focusing on civil justice is that indigent defendants who face incarceration are entitled to legal counsel. He explains that this rationale overlooks various limitations in Gideon v. Wainwright, 372 U.S. 335 (1963) and its progeny. Most notably, he clarifies that not all criminal defendants receive a qualified lawyer and that the Constitutional remedy for substandard representation is weak. To recognize the fact that there continues to be serious access to justice barriers faced by criminal defendants, Professor Green suggests that the bench and bar use their words carefully by not equating access to justice with access to civil justice. Rather he reminds us that no one should be “misled to believe that we have gone as far as necessary to secure criminal justice in this country.”
Using that exhortation as a jumping off point, Professor Green analyzes what it means for prosecutors to discharge their duties as ministers of justice and the organized bar’s role in influencing prosecutor conduct. As explained, the organized bar has largely focused these efforts on the minimal legal and ethical standards applicable to prosecutors and on prosecutors who fail to meet them. Although ABA Model Rule of Professional Conduct 3.8 is entitled “Special Responsibilities of a Prosecutor” and Comment (1) to Rule 3.8 states that a prosecutor has “the responsibility of a minister of justice and not simply that of an advocate,” the rule itself sets forth the minimum standards for a prosecutor to avoid professional discipline, such as the requirement for disclosure of information and evidence that is favorable to the defense. Beyond these minimum standards, Professor Green suggests a more demanding concept of a “good prosecutor,” urging the organized bar to spearhead serious examination of prosecutors’ justice-seeking role. Beyond abstract appeals, he identifies concrete contexts in which the bar can advance a more expansive role and recognize good prosecutors. He urges the organized bar to take the lead in tackling both individual injustices, as well as systematic injustices.
To illustrate how prosecutors should do more than the “minimum” to avert individual injustices, Professor Green uses the case of Anthony Ray Hinton, an exoneree who sat on death row for over 30 years, until eventually the U.S. Supreme Court acted. Although prosecutors in that case may not have violated minimum standards, Professor Green asserts that their duties as good prosecutors “presupposed that they take reasonable steps to avoid convicting innocent people.” In addition to describing specific steps that a “good prosecutor” should have taken, he suggests that the most important change may be prosecutors embracing the role as a minister of justice. He concludes by charging the bar to rethink its approach to criminal injustices. “When criminal injustices occur, the bar should ask–and try to answer—not only whether prosecutors caused the injustice, but whether good prosecutors could have prevented it.”
Prosecutors who serve as ministers of justice can play as important role as defense lawyers in preventing the conviction and incarceration of innocent persons. This is a perspective that the late Professor Monroe Freedman regularly shared with law students and new lawyers committed to advancing criminal justice. Professor Freedman encouraged them to seriously consider pursuing careers as prosecutors – as “good prosecutors.” Admittedly, Professor Freedman, like Professor Green, fully appreciated that the culture of prosecutors’ offices may make it difficult for prosecutors to “do justice” because of the incentives and disincentives. For example, does a prosecutor’s professional advancement largely turn on the number of convictions obtained. Good prosecutors should not be resigned to such organizational influences, but should lead efforts to shape cultures and incentives “to promote fair process, proportional punishment, and equal justice.”
In another article, Professor Green suggests that “doing justice” might mean “overcoming one’s own self-interest or ennui.” As stated:
In the face of contrary pressures and expectations, both external and internal, it may take a certain amount of inner strength (or strength of character) for an individual prosecutor to decide not to bring criminal charges or to dismiss criminal charges, to comply with procedural norms that make it more difficult to secure convictions, to confess error, or to seek to overturn a conviction that was unfairly procured. Id.
Professor Green, with Professor Ellen Yaroshefsky, examined the role of external and internal factors in an empirical study involving state prosecutors in seven offices in different parts of the U.S. In studying how the prosecutors handled pretrial disclosure, they learned that the principal influences on prosecutors’ decision making are likely “organizational factors.” Id. at 270. Based on their study findings they conclude that the “most significant factor influencing prosecutors’ decisions are office policy, informal understandings, culture and internal regulatory and supervisory practices.” Id. at 289. As suggested by the study findings, any serious examination of prosecutorial conduct must consider the dominant role that organizational influences play.
In responding to Professor’s Green’s question (Where are the Prosecutors?) and his call for action, the hope is that concerned persons will do more than revise professional conduct rules related to prosecutor conduct. Rather than being satisfied with rule changes that may address the conduct of individual prosecutors, the organized bar and prosecutors themselves should seriously examine and change ethical infrastructures and other organizational influences that shape prosecutors’ conduct and affect access to justice for criminal defendants.
Jan 19, 2017 Francesca Bartlett
Richard Moorhead, Catrina Denvir, Rachel Cahill-O’Callaghan, Maryam Kouchaki and Stephen Gloob,
The Ethical Identity of Law Students, International Journal of the Legal Profession, (2016).
Much has been written about the ‘ethical identity’ of law students with what Elizabeth Chambliss describes as a dominant ‘corruption narrative’ informing philosophical and empirical accounts. In another myth-busting study from Richard Moorhead and others, The Ethical Identity of Law Students, the diminishment thesis is tested, somewhat supported and problematized.
Blame is often leveled at an ever more commercialized profession and the (poor) signals it sends to law students about role morality. Moorhead’s research suggests that pre-conceptions of differing legal practice might attract differently ethically inclined students. . What these students then learn at law school is also subject to what Wald and Pearce describe as an ’industry’ of criticism. Scholarship across the common law world points to the negative effect of a neo-liberal turn of law schools; in Australia, Margaret Thornton has long argued that we produce ‘narrow technocrats.’ Elizabeth Mertz describes a language of indoctrination at law school which favours professional ‘hubris’ over social justice and moral reasoning. While not all legal education has been implicated in ethical diminishment—notably clinical education—smaller-scale studies have produced little evidence of positive impact. Nevertheless, Chambliss argues that our student days and professional lives may be subject to many instances of ‘ethical learning’ and ‘ethical fading’. The difficulty then for any researcher trying to measure this influence is to understand the context and the subject.
In their excellently designed large group study of (1,010) law students in the US, England and Wales, the authors try to test the veracity of such theories. The study first takes up the challenge to set some methodologically rigorous benchmarks as to the ethical identity of their participating law students as they begin and end their studies. They assess whether ethical learning or ethical fading occurs, and whether certain types of ethical education have more or less of an effect. Finally, they test the self-selection thesis in so far as they compare the ethical identities of those who intend to practice law and those who don’t; and compare those who intend to practice business law with those who want to work in other areas.
The authors use a range of established psychological tools to measure a series of ethical indicators: values held, ‘ethical sensitivity, ethical implementation, moral motivation and identity formation.’ (P. 238.) The values of students in the US and England and Wales were found to be ‘broadly similar’ where they valued ‘self-transcendence and openness to change over self-enhancement and conservation.’ (P. 246.) While the paper does not provide any general population benchmark, these seem neutral results—their law students as a bunch don’t appear to be intrinsically bad people. And, for England and Wales, the study indicates that legal education enhances ethical identity as moral improvement was found between students early in their undergraduate studies and those in postgraduate vocational training. (P. 246-7.) However, the picture over time was quite different for US law students. Alarmingly for US educators, their students appear to diminish in moral identity and attentiveness as they progress through their studies.
Their second set of measures considered professional identification: ‘are law students identifying as professionals, as lawyers and what is the nature of that identification?’ (P. 239.) While sociological studies assume the adoption of professional norms as generally ‘pro-social’, the authors cast an appropriately skeptical eye on their results ‘because the relationships between professional identification and ethicality are complex, we do not use professional identity as a proxy for ethical improvement or degradation.’ (P. 240.) Indeed, the results of the study indicate that development of professional identification is variable and complex. No real pattern emerged for English and Welsh students. However, ‘among US students, identification as a professional or a lawyer [early in their studies] is generally replaced by an affective commitment to being a lawyer [by the end of their studies].’ (P. 247.) They conclude of this result:
Given the tensions between the profession’s claim of virtue (value of service to public and code of conduct) and a perceived risk of diminished ethicality (acceptance of otherwise questionable behavior) consonant with role morality might explain stronger affective commitment by lower identification. More simply, it might reflect a growing realization amongst US law students that being a lawyer is more of a ‘job’ and less of a profession. (P. 248.)
Thus they say that the combined results for US students are ‘consistent with the diminished ethicality thesis.’ (P. 248.) The US, like many other countries, mandates professional ethics education. England and Wales do not. The Moorhead study suggests that the presence of ethics courses have little impact upon, or may even exacerbate, ethical fading. But there’s a twist: the study also found that there was a ‘statistically significant relationship between ethics training and values or professional identification.’ (P. 251.) It was unclear to me how these two results correlate exactly, and more discussion of ethics training offered in compared courses would have assisted here. Still, the results encouragingly show that a well delivered clinical or ethics course may be an important site for student ethical learning.
The study also considered a range of variables such as gender and career intentions, producing interesting, if unsurprising, results. For instance, those wanting to do business focused practice had ‘a values profile consistent with weaker ethical propensity’, a ‘lower level of moral attentiveness’ and were more inclined to self-enhancement than those intending to work for government or individuals. (P. 249-50.) The authors contend:
Given that different career intentions are associated with different kinds of ethical identity; our results suggest that the pull of the legal profession may have more of an effect on ethical identity than any socialising effects from the push of legal education. (P. 256.)
What direction the profession ‘pulls’ law students in development of their ethical identity – specifically, how law firms ‘signal their own ethical identities’ (P. 258) —is an issue we must then expressly address with our students. Finally, there’s the strong impact of gender. By all their many indicators ‘female respondents’ showed ‘a greater disposition to behave ethically.’ (P. 250.) The authors conclude that:
… our results suggest that the strongest influences on ethical identity are external to or only peripherally related to legal education. The ethical identity of law students as a body is heavily influenced by the innate characteristics of the students. (P. 256-7.)
These results could inspire us to think more about the impact and potential of the student body we are educating, and what they bring to the ethical conversation.
Cite as: Francesca Bartlett,
‘Benchmarking’ Ethical Identity of Law Students and How it is (or is not) Impacted by Law School, JOTWELL
(January 19, 2017) (reviewing Richard Moorhead, Catrina Denvir, Rachel Cahill-O’Callaghan, Maryam Kouchaki and Stephen Gloob,
The Ethical Identity of Law Students, International Journal of the Legal Profession, (2016)),
https://legalpro.jotwell.com/benchmarking-ethical-identity-of-law-students-and-how-it-is-or-is-not-impacted-by-law-school/.
Nov 21, 2016 Amy Salyzyn
Renee Newman Knake,
The Commercialization of Legal Ethics, 29
Geo. J. Legal Ethics 715 (2016), available at
SSRN.
Previous scholarship has shown us how legal ethics in America has become “federalized” and “privatized.” In a recent essay in the Georgetown Journal of Legal Ethics, Renee Newman Knake outlines another modern phenomenon: the “commercialization” of legal ethics. Reading this piece, it becomes clear that the significant complexity now characterizing the regulatory environment for legal services in the United States, with state bars, courts, federal agencies and clients all now playing a role, shows no signs of waning.
Professor Knake’s essay focusses on two types of “profit-driven” entities: (1) legal services providers, described as “entities and individuals serving legal needs without the same training and authorization traditionally required of state-licensed attorneys”; and (2) lawyer ratings companies. The essay aims “to provoke consideration about the proliferation [of these two types of entities] in an effort to determine whether and how this phenomenon ought to inform the ways regulatory authorities conceptualize and implement legal ethics rules.” In relation to both types of entities, Professor Knake suggests that a mix of optimism and caution is warranted. She notes the promise of such entities filling some long-standing access to justice gaps while observing that careful study is warranted to measure the actual impact of their increasing presence.
As to be expected given the confines of an essay, the discussion of legal service providers is relatively brief. Professor Knake notes that the emergence of such entities has been “predominately an international occurrence” to date but that there are some initial moves in the United States, as evidenced by examples like Washington State’s Limited License Legal Technician Program, the American Bar Association’s (“ABA”) adoption of Model Regulatory Objectives to guide the potential regulation of non-traditional legal services providers, and the emergence of new, non-traditional providers in the American legal services market, like LegalZoom and Lex Machina, among others.
The essay includes a longer discussion of lawyer ratings services—like, for example, Martindale-Hubble, American Lawyer Media, Who’s Who Legal, UpCounsel and Vault. Professor Knake observes that such services are growing in both popularity and influence. She gives a tangible sense of their reach by citing the ABA’s research that there are “now several hundred lists….[that] have become so prevalent that law firm marketing consultants are specializing in…management of [them].” She also explores the emergence of new entrants, like Avvo and LawyerRatingz, which aim to not only rate lawyers using proprietary formulas but also to connect clients with lawyers in a virtual legal marketplace of sorts. Potentially surprising to lawyers who follow or use ratings services is research cited indicating that Yelp, a broad-based ratings service, appears to be the most trusted online source for lawyer evaluations rather than those services tailored to lawyers.
On the issue of lawyer ratings services, Professor Knake draws on research relating to consumer ratings services generally to outline the potential risk of the public being misinformed due to things like selection bias (i.e. those who tend to rate tend to have either very strong positive or negative opinions), small samples or outright manipulation by those being rated. At the same time, she is clear that there is potential for more transparency in the legal services market and for clients to better assess quality. As she notes, information about quality contained in traditional regulatory mechanisms, like state bar complaints or civil malpractice suits, may be comparatively less accessible to the public than what is provided by ratings services.
Overall, one of Professor Knake’s main conclusions is that there are more questions than answers. She writes:
How should courts, tribunals, legislatures, and bar organizations respond to these commercial actors in the legal services marketplace? Are existing regulations sufficient or unnecessary? Should new regulations be adopted? Do bar associations and law schools have an obligation to educate members of the profession as well as the public in this regard? Should traditional authorities cooperate with new providers and companies to inform and protect the public? Should regulators monitor online ratings and reviews websites as part of ongoing disciplinary enforcement? (P. 726.)
These are all excellent questions. Professor Knake deserves credit for succinctly documenting the emergence of legal services providers and lawyer ratings services as well as for providing a roadmap for future research and policy discussions. The issues she raises are pressing and the environment she discusses is fast-moving, making scholarly intervention both critical and challenging.
One area of debate for readers may be the framing of the essay. Are the developments traced in the essay best characterized as the “commercialization of legal ethics” or something else? To be sure, legal service providers, as described in the piece, are “for profit”, but so too are most individual lawyers and law firms. Lawyer ratings services are also “for profit”, but is the impact of such services best described as commercializing legal ethics? No doubt, these services aim to influence client choice of lawyers, but client choice of lawyer is something largely, if not entirely, outside the ambit of traditional lawyer regulators (assuming, of course, the set of lawyers being considered are all properly licensed to deliver legal services in the relevant jurisdiction). In this sense, the phenomenon that Professor Knake is describing would seem to be different than issues raised in scholarship concerning the federalization and privatization of legal ethics, which discusses, among other things, increased power by federal agencies and clients, respectively, to control and sanction lawyer behavior that is concurrently under the jurisdictional authority of courts and state bars.
To be sure, in large part, any issue with the essay’s framing is one of semantics. Professor Knake’s thoughtful observations still hold whether one describes them as “commercialization” or something else. That said, there is also arguably a case that caution is warranted when describing innovations in the legal services market as being profit-driven in order to avoid setting up an overstated “business-profession dichotomy” when it comes to describing what traditional providers of legal services (i.e. lawyers) do. Labelling legal service innovations as “profit-driven” may also risk obscuring the possibility, which Professor Knake does explore, for such innovations to advance the public interest by expanding access to justice in ways that lawyers are currently not.
Any issues with framing aside, Professor Knake’s essay is important, compelling and timely: a “must-read” for those interested in the future of legal services markets both in the United States and abroad!
Sep 26, 2016 Sida Liu
Lawyers play important roles in litigation. To scholars and law practitioners, this statement sounds almost like a truism. To be sure, if millions of people pay hefty fees to retain lawyers in litigation, then the expertise that these lawyers possess and the services that they provide must be valuable. However, which part of lawyers’ expertise makes a bigger difference in ordinary litigation? Their knowledge of the law? Their familiarity with legal procedures? The social networks and relations that they develop with others? Or the symbolic power of their licensing and professional credentials? In the scholarship on the legal profession, all these aspects of lawyers’ expertise have been investigated through case studies and ethnographic work, such as Sarat & Felstiner’s (1995) work on how divorce lawyers control and construct their clients, Herbert M. Kritzer’s (2004) analysis of contingency fee lawyers as gatekeepers of the justice system, Mather, McEwen, and Maiman’s (2001) study on the collegial community of divorce lawyers, and so on. Nevertheless, there had been little systematic effort to test the effects of lawyers’ expertise in ordinary litigation using statistical methods and meta-data, until Rebecca L. Sandefur’s 2015 article Elements of Professional Expertise in the American Sociological Review.
In this article, Sandefur distinguishes between two types of expertise, substantive and relational, following Barley’s (1996) definitions. Substantive expertise is “concerned with professions’ peculiar categories and theoretical frameworks,” including “understanding both substantive law – statutes, doctrines, legal principles, and relevant past cases – and legal procedures.” (P. 911.) By contrast, relational expertise involves understanding “how to navigate the relationships involved in getting the work done” and “the social distribution of knowledge and discretion in the actual relationships through which professional work takes place.” (P. 911.) Whereas substantive expertise is “abstract” and “principled,” relational expertise is “situated” and “contextual.” (P. 911.) Both at are work in the practice of lawyers and other professionals, though relational expertise probably plays a bigger role in the work of lawyers than that of doctors or engineers given the strong relational nature of legal work.
To test and evaluate the effects of lawyers’ substantive and relational expertise on case outcomes, Sandefur adopts an innovative method called “meta-analysis,” that is, to combine extant studies and create a large database comprising more than 18,000 adjudicated civil cases for statistical analysis. Drawing on complex quantitative techniques from econometrics and other statistical methodologies, Sandefur calculated lawyers’ potential impact under three sets of assumptions: (1) managing relatively simple legal procedures (e.g., case filing or appeals); (2) deploying complex theories or doctrines (e.g., rules of punishment or compensation); and, (3) relationship to the court as professionals (e.g., familiarity with judges). While the first two assumptions correspond to two aspects of substantive expertise, the third assumption corresponds to relational expertise.
The statistical analysis leads to interesting findings. The basic finding is good news for the legal profession – having a lawyer does make a big difference on case outcomes. When compared to self-representation and representation by non-lawyer advocates, lawyer representation significantly increases the chances of winning a civil case in court. However, the analysis does not distinguish between different types of lawyers so it is not possible to compare the effect of lawyer representation across areas of practice. Among the three sets of assumptions, it turns out that lawyers’ in-depth knowledge of substantive legal doctrines is not as important as their expertise on basic legal procedures. The impact of their substantive expertise is the largest in the least complex fields of law. Furthermore, lawyers’ relational expertise also helps courts follow their own rules, especially in traditional trial courts (as opposed to simplified forums).
How to make sense of these results? Sandefur suggests that, in ordinary litigation, it is basic legal procedures that pose great obstacles for lay people. Although these procedures are routine and simple in the eyes of lawyers, without legal representation they would be very difficult for ordinary citizens to navigate. Non-lawyer advocates such as paralegals, social workers, and union representatives may help litigants with these procedures too, but not as effectively as lawyers do. Furthermore, when litigants are the “have-nots” (e.g., poor or disabled), they are often put in “a disesteemed legal position – cast as a delinquent or malingerer.” (P. 924.) In such situations, lawyers’ relational expertise can serve as an endorsement that affects how judges treat their clients and their claims. This is because “lawyers who appear repeatedly before the same court come to be seen as reliable, knowledgeable, and trustworthy by judges.” (P. 925.)
Sandefur’s explanation here is strongly reminiscent of both Marc Galanter’s (1974) classic distinction between “repeat players” and “one-shotters” in litigation, as well as Heinz and Laumann’s (1982) client-type thesis on the legal profession. Lawyers’ primary role in ordinary litigation is to bridge the gap between the legal system and the “one-shotters” who are unfamiliar with how the system works. That is precisely why lawyers’ impact is larger in less complex fields of law, as their clients in these fields are usually the disadvantaged litigants. By contrast, in more sophisticated legal fields, lawyers often serve higher-status clients, many of who are repeat players in litigation. In the latter scenario, lawyers’ impact on case outcomes is smaller because litigants are more familiar with legal procedures and might even have their own relational expertise in court.
Therefore, it would be misleading to interpret Sandefur’s findings as evidence for the insignificance of lawyers’ expertise in complex substantive law. Instead, what this study shows with solid empirical data is the vitally important role of lawyers in bridging the legal system with lay people in society through their expertise in legal procedures and their relations with judges and court officials. To make an analogy, professors are experts in highly specialized academic fields, but when we teach our classes, our strongest impact on students often comes from the teaching on relatively simple and basic knowledge of the discipline. Our relational expertise in the academia can also be of great help to our students in their studies and careers. However, this does not make the specialized knowledge of professors or the sophisticated expertise of lawyers useless. On the contrary, it is precisely such complex skills that distinguish professionals from the rest of their profession and give them prestige (and often income). It would be of great value to further investigate when and how lawyers’ expertise in substantive legal doctrines makes a difference in litigation in future research.
Aug 10, 2016 Eli Wald
A lawyer, states the American Bar Association Model Rules of Professional Conduct, is “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.” Preamble ¶ 1 (2016). Yet in contrast with the many rules that define the role of lawyers as representatives of clients and the handful of rules that deal with lawyers as officers of the legal system, the rules have little to say about the role of lawyers as public citizens. Only one comment is directly on point, explaining that “[a]s a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession.” Id. ¶ 6. What the special responsibility lawyers have for the quality of justice is and how they are to go about improving the administration of justice are questions mostly left unaddressed by the rules.
Scholars of the legal profession have long complained about this significant omission, and their call for infusing the role of lawyers as public citizens with actual content, has been answered by a public intellectual, Ta-Nehisi Coates, in his book Between the World and Me, which any lawyer interested in improving the quality of justice in the United States must read. That Mr. Coates should provide a foundation for a much needed discussion about the role of lawyers as public citizens is surprising, both because the author is not a lawyer, and because the book does not mention lawyers even once. Nonetheless, Between the World and Me is nothing short of a compelling call for arms, a wake-up call for members of the legal profession.
Injustice prevails in the U.S., argues Coates, because while Caucasians get a chance to pursue the American Dream – the belief, according to Jennifer Hochschild, “that all Americans have a reasonable chance to achieve success as they define it—material or otherwise—through their own efforts, and to attain virtue and fulfillment through success,” – “[f]ear is omnipresent for blacks” (P. 14), constituting the foundation of the culture of the streets, their streets (P. 24). “Fear ruled everything around me, and I knew, as all black people do, that this fear was connected to the Dream out there, to the unworried boys” (P. 29). Of course, concedes Coates, “[v]ery few Americans will directly proclaim that they are in favor of black people being left to the streets.” Yet, “a very large number of Americans will do all they can to preserve the Dream” (P. 33). In this sense, concludes Coates, “the Dream rests on our back” (P. 11).
This culture of fear has very real consequences, causing black kids to grow up with “stunted imagination” (P. 85). “When I was a boy, no portion of my body suffered more than my eyes. If I have done well by the measures of childhood, it must be added that those measures themselves are hampered by how little a boy my captive class had seen” (P. 116). Sadly, observes Coates, “I had missed part of the experience because my eyes were blindfolded by fear” (P. 126). Such fear constitutes injustice: “[T]here is the burden of living among Dreamers, and there is the extra burden of your country telling you the Dream is just, noble, and real, and you are crazy for seeing the corruption and smelling the sulfur” (P. 106).
Injustice, however, is not merely the result of individual indifference to the fear of blacks. Ironically, fear rules the lives of all Americans: “[t]he police reflect America in all of its will and fear… the same self-generated fears that compelled the people who think they are white to flee the cities and into the Dream. The problem with the police is not that they are fascist pigs but that our country is ruled by majoritarian pigs” (Pp. 78-79). As a result of majoritarian fears, “[a] legacy of plunder, a network of laws and traditions, a heritage, a Dream, murdered Prince Jones as sure as it murders black people in North Lawndale with frightening regularity” (P. 110). Between the World and Me is a powerful indictment of American injustice: “[t]he killing fields of Chicago, of Baltimore, of Detroit,” argues Coates, “were created by the policy of Dreamers” (P. 111). Moreover, this injustice is not only tolerated by the majority, it is necessary to maintain its Dream: “[t]he Dreamers accept this as the cost of doing business, accept our bodies as currency… Our bodies have refinanced the Dream of being white” (Pp. 131-32). Indeed, “[t]he forgetting is habit, is yet another necessary component of the Dream… They have forgotten, because to remember would tumble them out of the beautiful Dream and force them to live down here with us, down here in the world” (P. 143). And so fears are left unquestioned. As a result, “[s]ome of us make it out. But the game is played with loaded dice (P. 124) … I felt myself to be among the survivors of some great natural disaster” (P. 129).
Justice, asserts Coates, requires constant use of the tools of questioning. (P. 29-30.) It demands being “politically conscious” as a state of being. (P. 34.) Equality for all means an ongoing individualized critical scrutiny of hierarchy, of feeling “discomfort” with every dream. (P. 53.) Such questioning and critical scrutiny, struggling against the Dream, has a meaning, argues Coates. (P. 69.) Indeed, it is the meaning. (Pp. 69, 71.) The hope of having a just society depends on our ability “to awake the Dreamers, to rouse them to the facts of what their need to be white… has done to the world.” (P. 146.) Justice depends on our ability to wake up, to question our Dream and overcome our fears.
Which is where lawyers as public citizens come into play. Lawyers, as public citizens owing a special responsibility to the quality of justice, have a duty to lead the fight for equality by questioning and scrutinizing the status quo, the Dream. “In America,” opined Thomas Paine, “law is king,” the social glue that binds us together. Lawyers, therefore, are well-positioned, in their role as public citizens, to act as civic teachers and lead the way by denouncing fear, modeling and teaching political consciousness, exposing the legacy of plunder, and advising and assisting clients, public and private alike, to undo the networks of laws and traditions, our policies and regulations, our heritage, our culture of injustice.
All lawyers can act as civic teachers. All lawyers have long been doing so. To their role as representatives of clients who teach, model, and assist the pursuit of atomistic self-interest, all lawyers must add the role of public citizens who teach and fight for justice. As public citizens lawyers must first learn (and for some, relearn) and teach themselves to critically question the Dream, as well as the laws, policies, and regulations that legitimize it, enforce it, and reconstitute it. Then, lawyers must teach clients, all clients, to critically examine aspects of the Dream and challenge them: how we interact (and fail to interact) with each other; how we design and enforce polices and regulations, from zoning to education, incarceration, and immigration; to how and what we invest in (and fail to invest in); to how we prioritize economic, political, and cultural goals. How we go about pursuing our Dream, and exclude others from it, must be continuously reexamined and challenged, every day, and in every interaction we have. Lawyers as public citizens must act as civics teachers to help question and teach clients to question the status quo. They must lead in the quest for justice and equality.
That Ta-Nehisi Coates explores injustice in America and does not even mention lawyers is a sad statement about how irrelevant lawyers have become to the cause of justice. Yet members of the legal profession, who define their calling as public citizens having a special responsibility to the quality of justice, must prove Coates wrong. Justice requires ongoing individualized critical scrutiny of hierarchy, and lawyers as public citizens must model and teach such critical scrutiny. Between the World and Me is required reading for all lawyers who value justice. It is thus required reading for all lawyers.
Jul 13, 2016 Laurel Terry
Ben Franklin is famous for saying “an ounce of prevention is worth a pound of cure,” but there are lots of similar messages. We are told to “measure twice and cut once” and to “look before you leap” and that “a stitch in time saves nine.” But what about lawyer regulation? Does this same message hold true? Until recently, the answer in the United States might have been no. Most of those who regulate U.S. lawyers have traditionally focused on responding – with discipline or another sanction – after a problem arose.
This situation is finally starting to change in the United States. Because I consider proactive lawyer regulation to be a very positive development, Professor Susan Fortney’s recent article entitled Promoting Public Protection is one of the articles that I now regularly cite and recommend to those with whom I speak. Although Promoting Public Protection is a condensed version of a longer article coauthored by Professor Fortney, I often recommend the Promoting Public Protection article because it is succinct, yet does a wonderful job of conveying information about the important empirical and theoretical work that has been done about proactive management-based regulation, or PMBR. (PMBR is a term that originally was coined by Professor Ted Schneyer.)
Professor Fortney’s article begins by describing developments in New South Wales, Australia that led one of its regulators to develop a regulatory system that included proactive regulation for law firms that chose to practice as incorporated law practices (ILPs). Her article explains that the heart of New South Wales’ proactive approach was a self-assessment form that the legal practice director in each ILP was required to complete.
In the second part of her article, Professor Fortney describes an empirical study that has generated worldwide attention. After the New South Wales regulator created the ILP self-assessment form and process, the regulator collaborated with Professor Christine Parker to allow her to study the results of the ILP self-assessment process. The resulting study found that there had been a dramatic reduction in client complaints, including the finding that the complaints rate for practitioners in incorporated firms went down by two thirds after the firms completed their initial self-assessment forms and the finding that the complaints rate for firms that completed the self-assessment process was one third of the number of complaints registered against non-incorporated legal practices that had never completed the self-assessment process.
These Australian developments, which Professor Fortney describes in the first two sections of Promoting Public Protection, provided the backdrop for her own empirical study that is described in detail in her longer article and that is summarized in her Promoting Public Protection article. Professor Fortney’s study explored the issue of why there had been such a dramatic reduction in client complaints among the Australian ILP firms that had used the self-assessment process. As Promoting Public Protection reports, Professor Fortney found that almost three quarters of the firms that conducted the self-assessment revised their law firm policies as a result of going through the self-assessment process. Her study also found that close to half of the respondents had adopted new systems, policies, and procedures as a result of the self-assessment procedure. She concluded that
“Quite simply, these findings point to the positive impact that the self-assessment process has in encouraging firms to examine and improve the firms’ management systems, training, and ethical infrastructure. Interestingly, with respect to most steps taken by the firms, there was no significant difference related to firm size and steps taken.”
Professor Fortney’s article included the table that is reproduced below that shows the impact of the self-assessment process:
Table 1
Steps Taken by Firms in Connection with the First Completion of the Self‐Assessment Process
| Reviewed firm policies/procedures relating to the delivery of legal services | 84% |
|---|
| Revised firm systems, policies, or procedures | 71% |
| Adopted new systems, policies, or procedures | 47% |
| Strengthened firm management | 42% |
| Devoted more attention to ethics initiatives | 29% |
| Implemented more training for firm personnel | 27% |
| Sought guidance from the Legal Services Commissioner/another person/organization | 13% |
| Hired consultant to assist in developing policies and procedures | 06% |
One additional finding that is noteworthy but is not included in this table is Professor Fortney’s finding that a majority of lawyers who used the self-assessment process were satisfied with it, including those lawyers who had been skeptical at the outset. The article notes that “sixty-two percent of the respondents reported that they agreed or strongly agreed with the following statement: the self-assessment process ‘was a learning exercise that enabled our firm to improve client service.’” The article also reports that in their text entries, seventy-eight percent of the respondents described positive changes in their impressions of the self-assessment process.
The third section of Promoting Public Protection identifies a number of specific steps that regulators and bars could take in order to encourage firms to develop systems as part of a risk-management and practice-improvement program. For example, Professor Fortney recommends that regulators revise their procedural rules to allow for more diversion referrals if the facts suggest that the complaint involves minor misconduct related to practice management concerns. She also recommends that bar leaders create incentives for lawyers to devote time and resources to serious examination of their practices. The concluding section of her article urges the adoption of a proactive management-based approach to regulation – which Fortney calls an attorney integrity system – in order to transform the relationship between lawyers and regulators.
One of the reasons why I recommend this article whenever I can is my belief that the United States may be close to a tipping point on the issue of proactive lawyer regulation. There is growing momentum in the United States to move to a more proactive system of lawyer regulation. For example, on June 4, 2016, regulators and others from Canada and the United States attended the Second Workshop on Proactive, Management-Based [Lawyer] Regulation. This second workshop built on the work done in 2015 at the first such workshop and included discussions of the proactive efforts of regulators such as those in Nova Scotia and the Colorado Supreme Court’s Office of Attorney Regulation Counsel. To provide one small but important example, when a Colorado lawyer leaves a large firm or government practice to go into a solo or small firm practice, he or she receives an email from Attorney Regulation Counsel Jim Coyle congratulating that lawyer on the move and advising that the lawyer will now be encountering issues that he or she did not previously have to handle. The email offers help and also includes links to resources such as Colorado’s Trust Account School and its Self-Audit Checklist. Developments such as these are discussed in a regularly-updated FAQ document prepared by the National Organization of Bar Counsel (NOBC).
Although I agree with Professor Fortney’s thesis that a PMBR regulatory approach, which she describes in the latter sections of her article, is useful, I am willing to settle for the “P,” or proactive, part of PMBR regulation. As my forthcoming article on proactive regulation argues and as the Colorado email example cited above illustrates, proactive regulation can have a significant positive impact, even in the absence of a PMBR system that regulates entities. I hope that the U.S. will move away from its current system in which proactive lawyer regulation seems to happen on an ad hoc basis, rather than as a result of a deliberate decision, such as Nova Scotia’s decision to adopt a “Triple P” approach to regulation in which proactive regulation is an integral part of its system of lawyer regulation. I hope that Promoting Public Protection, along with other work by Professor Fortney and others, will lead jurisdictions to make a commitment to develop a systematic approach to proactive lawyer regulation. Jurisdictions might want to follow the lead of the Colorado Supreme Court, which added a preamble to its rules governing the practice of law that identified Colorado’s regulatory goals. These goals explicitly refer to proactive regulation and include, inter alia, “Enhancing client protection and promoting consumer confidence through [specified programs] and other proactive programs; Assisting providers of legal services in maintaining competence and professionalism through [specified programs] and other proactive programs; [and] Helping lawyers throughout the stages of their careers successfully navigate the practice of law and thus better serve their clients [through specified programs] and other proactive programs” (emphasis added).
In sum, I think that if U.S. jurisdictions decided that the time had come to adopt a comprehensive and systematic approach to lawyer regulation, everyone – lawyers, clients, and the public – would be better off. I recommend Susan Fortney’s Promoting Public Protection article because I believe that the research she conducted shows why proactive regulation is effective and because I think that her article can help the U.S. realize that, in lawyer regulation as elsewhere, an ounce of prevention is worth a pound of cure.
Jun 17, 2016 Rebecca Roiphe
Eric Fish,
Prosecutorial Constitutionalism,
S. Cal. L. Rev. (forthcoming 2016), available at
SSRN.
In his intriguing new article, Prosecutorial Constitutionalism, Eric Fish develops a theory about when prosecutors ought to act as public officials, interpreting the Constitution as a judge would do, and when they should serve as advocates seeking a conviction or the maximum punishment possible. He concludes that when the adversary system fails, prosecutors should assume the role of judges. They should act according to their own interpretation of the Constitution, as other public officials are expected to do.
When prosecutors are in full control of the criminal justice process, as in plea bargaining or charging, the adversary checks are absent, and prosecutors should interpret and apply the Constitution to protect defendants’ rights. Similarly, when judges under-enforce constitutional norms out of procedural or structural concerns like separation of powers, the prosecutor should serve as a guardian of defendants’ rights rather than their adversary. In other moments when the system is functioning as a proper check, prosecutors should be free to pursue convictions and high sentences with zeal.
Fish argues that individual prosecutors are incapable of determining which role to inhabit, of knowing when to assume the stance of adversary lawyer as opposed to that of neutral arbiter. Internal policies like the Department of Justice’s United States Attorneys’ Manual or rules of professional conduct can and do guide them, but there needs to be a better, more comprehensive theoretical framework for understanding when a prosecutor should advocate for harsher sentences and when she should protect the rights of defendants and uphold the Constitution.
Fish starts with the rather uncontroversial premise, articulated by many scholars and courts before him, that prosecutors embody a dual role. They are expected to seek convictions while simultaneously ensuring fairness and protecting the integrity of the criminal justice system. They must pursue their cases with diligence while also protecting the rights of defendants and preserving the legitimacy of the process. This is a difficult balance and there is ample evidence that prosecutors often neglect their obligation to defendants and the law in favor of harsher charges and sentences.
But then he writes that this dual role is not only complex and difficult, it is impossible. It is like asking “the same person to be both coach and referee.” He joins scholars like Rachel Barkow in concluding that the two expectations are fundamentally incompatible. Here is where readers may disagree. Some may side with those who argue that not only can prosecutors negotiate these two roles, but they also do and they must. If they cannot seek convictions and also protect defendants’ rights at the same time, then our entire criminal justice system breaks down. The roles cannot be disentangled. At every stage of the prosecution, both aspects of the prosecutor’s job must come into play. Even in the most adversary phase of a trial, a prosecutor ought to be wary of playing too hard and coming too close to the line. The obligation to pursue convictions is always uncomfortably lodged within the duty to protect defendants’ rights, to uphold the Constitution, and to ensure the integrity of the process. There is no doubt that the prosecutor’s dual function is fraught with tension and complexity. Fish further asserts that it is an impossible and irreconcilable role.
Fish writes that the prosecutor “is assigned the task of obtaining convictions, and so must necessarily take positions in litigation that undermine defendants’ constitutional rights,” but this assertion is less than obvious. A prosecutor may take positions that interpret the defendant’s constitutional rights in such a way that they are consistent with pursuing a conviction. But if, at any point, obtaining a conviction requires a prosecutor to undermine a defendant’s rights, then the prosecutor should, and must, dismiss the case.
Fish locates the dual roles of the prosecutor in the history of the American criminal justice system. He argues that the adversary role is rooted in the Anglo-American tradition of private prosecution. The quasi-judicial role, according to Fish, emerged when the country moved to a system of public prosecutors. While there is some merit to this narrative, Fish emphasizes the stark divide. Yet, private prosecutors themselves were expected to preserve and promote the public interest. They too were supposed to find balance between their adversary role and the dictates of justice. The shift to public prosecutions occurred in part because critics felt that the victim put too much pressure on prosecutors so they could not fully attend to their public function. So, the history seems to point to a tradition of entangled roles.
Fish argues that ethical rules reinforce the adversary model by pushing prosecutors to pursue convictions, but the duty of zealous advocacy does not, in fact, mandate that conclusion. Prosecutors have a duty to pursue the interests of their client diligently, but a prosecutor’s client is the public, and the public has a complex interest, which includes not only putting guilty people in jail but also preserving the rights of the innocent and the principles of the law.
While the historical premise of Fish’s analysis is less than obvious, his conclusion is both insightful and valuable. Like Professor William Simon, he argues that a lawyer’s duty to do justice is most intense when the adversary system is not working. Applying this theory to prosecutors, Fish points to policies like the Petite Policy in the federal system, in which the Department of Justice has stepped in with a more robust protection for defendants where courts, for various structural and procedural reasons, decline to fully define and enforce the Constitution’s limits. The Petite Policy requires federal prosecutors to seek permission from the DOJ when they pursue a prosecution that is substantially similar to one that has been brought in a different jurisdiction. As Fish points out, this is an example of an internal policy that asks those at the top ranks of the office to interpret the Constitution (here, the Double Jeopardy Clause) to provide greater protection for defendants than courts mandate.
Fish’s argument contributes a great deal to the growing literature about the prosecutor’s role. It helps to answer a question that has preoccupied scholars for years: how do we encourage prosecutors to fulfil their public function rather than just accumulate convictions and harsh sentences? Moving forward, perhaps we need to focus not on how to separate the two functions, but on training lawyers simultaneously to embrace both sides of their role.
May 19, 2016 W. Bradley Wendel
As the title of Ben Barton’s new book, Glass Half Full, suggests, he sees something positive in the relentless stories of woe we have been hearing about the legal profession since the Global Financial Crisis. In truth we’ve been hearing these stories since before that time, regarding both the legal profession and legal education. Crisis rhetoric seems to come with the territory for lawyers. There were some fat years for the profession, fueled by a long period of postwar economic growth, from the 1950’s through the 1980’s.
But in about the late 1980’s, things started to go badly for many large law firms. Their long-time clients, who had been grumbling about hourly billing and inefficiency, began to bring more legal work in-house. Corporate general counsels then restructured their relationships with outside law firms, often putting work out for competitive bidding and breaking up existing, cozy, bilateral monopolies with the company’s regular outside counsel. Companies no longer looked to outside law firms as general advisors, but as providers of discrete, specialized services. Publications like American Lawyer made information available about revenue and profits per partner, touching off a significant upturn in lateral hiring. Partners now demanded to be compensated for originating business, not simply performing legal services for clients, and as firms shifted from lockstep to “eat what you kill” compensation systems, internal firm cultures became destabilized.
One result of the loss of control by management over potentially rogue rainmaker lawyers – not addressed by Barton – is a series of expensive fiascoes like Mayer Brown’s representation of Refco and the involvement of Jenkins & Gilchrist in blessing aggressive tax shelters. But in other respects the ugly side of the changing market for legal services is familiar and well documented by Barton, who looks at the entire market for legal services, not just the world of large firm practice.
Stories of woe are so familiar, in fact, that one might wonder what could be the silver lining in the storm clouds. Barton’s answer is one of those points that is obvious once it is made, but had previously eluded most observers: If you switch perspectives, from that of big-firm lawyers and law professors (who have a great deal in common, and who also tend to dominate discourse about the profession), to that of consumers of legal services, the news is mostly good.
From the point of view of corporate clients, the shift of power from outside law firms to in-house counsel is all to the good: “[H]aving broad-gauged, high-integrity, business-savvy lawyers around the coffee pot and around the conference table increases speed and productivity. These lawyers operate seamlessly in business teams, gaining credibility by helping more swiftly to achieve performance goals and by assisting business leaders promote high integrity down the line inside the corporation.” From the perspective of individuals and small companies, who are more central to Barton’s story, the increasing use of technology to deliver legal information and services will reduce transaction costs, and thus make it easier to transact.
As Barton rightly notes, citing statistics from Deborah Rhode’s work on access to justice, some 80% of the needs of the poor, and 40-60% of the needs of working-class consumers, for civil legal services go unmet. Services like LegalZoom, which make legal forms and information available on-line, may help address the need of clients for assistance with relatively routine divorce, landlord-tenant, or probate matters. This positive story assumes a great deal of faith in markets to deliver the benefit of technology to consumers, and in turn the efficient operation of markets depends on the absence of anti-competitive behavior by incumbent producers. The Supreme Court’s recent decision in North Carolina Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015), is a reminder that the intervention of regulators is sometimes necessary to ensure robust competition in the market for professional services.
I’m fairly optimistic by nature, so I’d like to take reassurance from Barton’s narrative. But there’s something I don’t get. Why has the problem of access to legal services persisted when there are so many recent law graduates out there who have been unable to secure a job requiring a J.D. degree? Why have unemployed lawyers not exerted tremendous downward price pressure on existing providers of legal services? We are all familiar with the statistics, particularly from schools ranked in the third or fourth quartile of the almighty U.S. News hierarchy. At many schools fewer than half of graduates are employed in a J.D.-required job nine months after graduation.
Smart, industrious recent law school graduates have labor-market alternatives to starting their own firms, but if there truly is a large pool of potential clients with un-met legal needs who can afford to pay at least something for a lawyer to handle their divorce or prepare their will, shouldn’t there be enough demand for lawyers to entice some of these recent graduates into the practice of law? Granted, there are considerable expenses associated with starting a law practice – office space, computer equipment, a Westlaw subscription, and the costs of marketing the new firm. But several recent graduates could share expenses, or perhaps an existing non-profit or for-profit institution could serve as an “incubator” for startup practices, providing office space and tech support while the new lawyer got up and running. Perhaps the problem is that students are graduating from law school without sufficient skills training, and worry that they could not competently represent clients and also handle the business aspects of running a practice. It could be the case that, considering the difficulty and risk of hanging out a shingle, practice law simply does not offer enough of a premium over other available employment.
If there are substantial barriers to entering the market as a J.D.-holding provider of legal services, Barton recommends a number of second-best solutions, most of which involve either the use of technology to increase efficiency or the expansion of practice rights for non-lawyers. Washington State, for example, has created a new para-profession called Limited License Legal Technicians (LLLTs), with an initial focus on matrimonial matters. The trouble with this approach, as Barton shows, is that the organized bar is dead-set against it. Unauthorized practice of law (UPL) commissions in many states have sought to restrict LegalZoom from operating and, given the breadth of UPL prohibitions, they have a decent argument on the law.
The Washington LLLT para-profession will be regulated by lawyers and be subject to stringent entry requirements. Lawyers always give consumer protection as the reason for this opposition, but as Barton points out, complaints against LegalZoom are almost non-existent. Lawyers are so worried about ceding turf to computers or non-lawyers that they may be exacerbating long-term access problems. The result will almost certainly eventually be a backlash. The relatively recent history of legal services reform in the United Kingdom shows that public pressure and a determined legislature can radically restructure the legal profession’s monopoly. But the ever-optimistic Barton has faith in the market. He believes that the legal profession’s loss will be consumers’ gain in the long run. He even argues that law firms and law schools will be better off in the long run. It’s nice to hear a cogent argument for this position, after years of stories of doom and gloom. Let’s hope he’s right.
Apr 21, 2016 Susan Fortney
During the holiday season, I think of Santa evaluating who is naughty and nice. Like Santa, senior lawyers in law firms make end-of-the-year determinations when deciding on bonuses, salary increases, promotions, and distributions. Unlike Santa who judges the character of children on his list, law firm partners may focus more on objective measures of worth. In law firms this often amounts to billable hours collected and business generated. In firms, new lawyers quickly learn what is valued within the organization and many shape their conduct to maximize their income and promotion possibilities. As explained by Eliyah Goldratt, the Israeli physicist and management consultant, “Tell me how you measure me and I will tell you how I will behave.”
In their recent article, Virtuous Billing, Randy D. Gordon and Nancy B. Rapoport, recognize the role of incentives and performance management in law firms. The authors examine firm conduct and billing practices through the lens of virtue ethics. I especially like the article and commend it to you because it provides positive recommendations on steps that firm leaders and other interested parties can take to improve the quality of work for clients and the quality of life of lawyers.
This article was published in connection with the Conference on Psychology and Lawyering hosted by the William S. Boyd School of Law, Las Vegas, Nevada. In tackling the topic of organizational dynamics in law firms, the authors use the classical concept of “virtue” to demonstrate how we develop habits that shape character. To put the discussion in context, they explain how the changing business model of law firms has resulted in “metrics myopia” in which firm partners focus on originations and collected billable hours in making compensation and promotion decisions. This contributes to lawyer mobility and a culture in which the “internal goods of the practice (being an excellent lawyer who serves clients well) are held hostage to the external (money and prestige).” (P. 708.) The authors suggest that the devolution from the internal to the external undermines the Aristotelian virtue of “friendship” that holds together institutions. (P. 708.)
With this background, the authors apply principles of virtue ethics to law practice generally and billing specifically. They explain that people are virtuous when they create and follow habits of excellence. With this approach, they examine the following categories of virtues, considering what habits would make a lawyer a virtuous biller: judgment, empathy, integrity/honesty, passion/engagement, diligence, and creativity/innovation. Following the discussion of billing virtues, the authors outline corresponding “billing vices” in a table.
Table 1: Billing Virtues and Corresponding Vices
| Billing virtue | Billing vice |
|---|
| Billing judgement | Billing everything to the client, even wasteful work or make-work |
| Billing empathy | Not describing work done for the client at all, or not describing it in a way that the client will understand what the lawyer did |
| Billing integrity/honesty | Putting the lawyer’s own needs (to make a billable hour quota or to jockey for position within a firm) above the client’s needs; misrepresenting work that’s been done |
| Billing passion/engagement | Not paying attention to what’s being done on a matter, and not scrutinizing the bill before sending it to the client |
| Billing diligence | Not recording time contemporaneously |
| | Billing creativity | Adhering rigorously to the billable hours model, without instructions in how to bill time and without absorbing the costs of training associates |
This table could serve as a self-examination tool for lawyers.
In this self-examination, lawyers can consider their own individual practices and assumptions. For example, associates may not exercise billing judgment, understanding that their supervisors will write-down the associates’ time when the supervisors determine that the billing is excessive or otherwise inappropriate. Unfortunately, this approach does not recognize the traps associated with one lawyer billing another lawyer’s time. In my article based on the findings of an empirical study on law firm culture and the billable hour derby, I identified the following difficulties with relying on the “write-off” approach:
First, it assumes that the supervisor possesses enough information on the client’s legal matter to evaluate intelligently the amount of time expended. Second, the approach assumes that the supervisor can ably sift through associate time sheets, which may be “propaganda piece[s].” Finally, if the firm compensates a billing partner for the amount collected from billed clients, the billing partner may be reluctant to write off associate time.
Rather than assuming that the supervising attorney will write-off time, the authors suggest that the virtuous attorney should develop the habit of billing judgment.
Interestingly, the contrasting billing virtues and vices underscore how billing practices may reflect a short-term versus long-term approach to client work. Short-term the billing vices, such as billing everything to the client and not scrutinizing bills, may financially benefit the lawyer. In the long-term such practices can potentially hurt the attorney-client relationship and cost the lawyer and the firm the client. Such heavy-handed billing can be detected by clients who closely monitor bills. Even if a client does not audit the legal bill, unnecessarily high bills can contribute to clients finding other counsel. In discussing the ethics of billing with law students, I try to make this point in suggesting to the students that long-term that they are better off by being efficient and judicious in billing clients, even if the fee charged does not violate applicable disciplinary rules. Such conduct can help attorneys cultivate client relationships that provide attorneys more autonomy than heavy-handed billing.
Rather than just bemoaning the tyranny of billable hour practice, the authors suggest practical steps for firms to encourage ethical billing practices and motivate lawyers to develop habits that are beneficial to the firm and its clients. The recommendations include avoiding “willful blindness” by creating systems to detect questionable practice and providing meaningful training on billing.
Above all, the article underscores the importance of firms rethinking the incentives within firms and messages sent to professionals within the firm. For example, firms should not narrowly base salary increases and bonuses on numerical benchmarks. In the evaluation process, firm leaders should consider the conduct that their current systems reward. Although law firms may be reluctant to abandon compensation systems that heavily rely on billable hours collected and business generated, in the long run the desire to attract and retain clients may contribute to firms restructuring incentives to encourage ethical practices and motivate lawyers to act in ways that benefit the firm (as opposed to individual lawyers) and firm clients. For attorneys who recognize the deleterious effects of emphasizing billable production and business generation over quality and client concerns, Virtuous Billing provides ethically enlightened attorneys with arguments for engaging their peers in discourse on the type of conduct that the firm should incentivize and support.
Mar 29, 2016 Ray Campbell
Before big data, before cloud computing, before ubiquitous smart phones and tablets, and almost before a version of Windows that actually worked, Richard Susskind has been predicting that, eventually, technology will displace lawyers. While the topic of how technology will change law and other professions is now a flavor of the day, you haven’t done your homework if you try to write about how technology will affect law without taking Susskind into account.
Susskind is back with an ambitious new book, co-authored with his son Daniel, entitled The Future of the Professions. This book is both broader and deeper than Susskind’s previous work – broader, in that he takes on all the professions, not just lawyers, and deeper, in that he delves into just what it is that makes professional work different. He addresses head on how advancing technology impacts the core role of professions.
Engaging directly with the idea of professions represents a shift from his previous work, which dealt with lawyers as an occupation providing one-to-one, custom services in an era when technology was enabling more efficient, standardized solutions. While his arguments had bite and insight, the same jeremiad could have launched against almost any white collar occupation that was slow to adapt new technologies. It was also not entirely clear why the progression he predicted—from custom work to standardized work to commodified and technologically automated work—applied to the legal profession as a whole, as opposed to particular issues as lawyers moved up the experience curve.
This time, addressing all the professions, the Susskinds go to the nub of what makes professional work special. They work through exactly how emerging technologies create substitutes for not just law but many other professional fields, including medicine, consulting and even the clergy.
Drawing on the sociological literature on professions, the Susskinds start from a standard place – professionals, above and beyond all else, are experts, possessed of formal esoteric knowledge and practical know how for applying that knowledge that laymen don’t have. Put differently, professions are a way to manage, apply and develop certain kinds of information.
Fully formed professions have been able to leverage their expert knowledge into what the Susskinds term “the grand bargain”—credentialed professionals are granted social status and economic monopolies in return for sharing and advancing their expertise.
The Susskinds position this grand bargain, however, in a framework of “information substructures.” The step forward in this book—and it is an important step forward—is to link the professional stewardship of expert information with fundamental changes in how we manage information.
The Susskinds argue that society has passed through three phases of how we manage and share information, and is midstream in a transition to the next phase. At one time, all information had to be transmitted orally and held in living memory. The invention of writing led to the second stage in information management as script enabled scribes to record and pass on more fully developed accounts. The printing press, in the Susskinds’s view, brought on the third stage, allowing the spread of printed information to a much broader audience. Not coincidentally, in the Susskinds’s view, the age of print coincided with the full flowering of modern professional guilds, which draw upon printed books for much of the work of storing and sharing expertise.
The fourth phase of information management, the Susskinds argue, is upon us – the much discussed digital age. This digital age will offer new ways to develop, store, manage and share knowledge, including expert knowledge.
Our current professions, the Susskinds argue, arose in response to limitations on our ability to manage information made available through books. Put differently, the traditional professions may have been the best available way to filter and share expert knowledge in the age of print.
Best available, they take care to point out, does not necessarily mean all that good. The current professions, including law, suffer from a long list of structural flaws. “[B]y and large, our professions are unaffordable, under-exploiting technology, disempowering, ethically challengeable, underperforming, and inscrutable. This is not a trivial charge-list.” (P. 37.)
Against the defects of professions as we know them—and the Susskinds’s list of charges is by no means novel or exhaustive—they ask whether the core role of professionals, the handling of expert knowledge, is now open to very different solutions.
As might be expected, they answer in the affirmative, but it’s worth paying attention to how exactly they see technology playing a role. The Susskinds do not predict, at least in the near term, “thinking machines” that harness computing power to replicate human brains.
They describe as the “AI fallacy” the notion that to be useful machines must either follow rules set by humans or in some other way mimic how humans solve problems. Indeed, some of the most impressive technical ‘AI’ applications to date—such as speech-to-text, Google Translate or IBM’s Watson—take quite a different approach, applying brute force computing power and statistical correlation to provide solutions.
Rather, they see a flock of technology aided approaches that together will shift traditional professions to the margins. In some cases rules based automation will indeed play a role, with unaided computers processing work that once required professionals —something we already see with predictive coding and sites such as LegalZoom. In other cases, computers will team up with what they see as a growing class of para-professionals who, given narrow, specific training and aided by software, will deliver services that once required mature professionals. Internet enabled communities of users will provide another way for consumers to reach the correct solution to their problem, with cancer or divorce survivors passing on knowledge. Still other tasks will be handled by the kind of brute computational force and statistical correlation that underlies IBM’s Watson—with Watson, incidentally, already opening for business in the legal services sphere.
Given that machines will not ‘think’ in a human sense, they also will not on their own exercise judgment in the way human professionals do. They might enable humans with more narrow or specialized training to exercise judgment in their narrow field, and they might enable non-professionals to share insights and judgment based on their experiences as cancer patients or divorce clients. Judgment, of course, draws heavily on experience, and one advantage of machines is that, like the computer that bested the world champion at the strategy game of Go, computers can draw on and weigh more iterations of the possibilities than one human could ever experience.
The Susskinds are elusive about how long it will take for the transition to technology to take place. Near term, they see the technological changes pushing law practice toward a more efficient model able to follow standardized processes for most work. Highly customized work and advocacy are likely to fend off technologically driven substitutes more successfully. Work that can be reduced, in whole or part, to routines or defined processes are more susceptible to substitution by machines—but anyone who has practiced law for a while, even very elite law, recognizes that much of what all lawyers do involves routine work.
At some uncertain future date, they see technology altogether displacing lawyers and other professionals as we have known them. If technology can take us directly and quite cheaply to the correct solution, what need is there for professionals?
Some technology driven services, they admit, may not meet the standard of the very best professionals, who will hang around in some capacity for a surprisingly long time for reasons of nostalgia, if nothing else. At the same time, they are quick to note, by definition average and below average professionals also don’t meet the standards of the very best professionals.
Richard Susskind has always been a both a bit utopian and a bit of a Cassandra, with many of his predictions of fundamental change falling on deaf ears. Even in this book, he finds it necessary to point out not once, but twice, that he was right in predicting that e-mail would become an important way for lawyers to communicate. That said, the arrival of email is small potatoes compared to the more sweeping changes he began predicting 20 years ago. Email has had an effect on how lawyers communicate with their clients but it has not fundamentally changed how they do what they do. Even with all the new technologies floating around, we are still waiting for a technology that changes the fundamentals of how lawyers work.
Advancing technologies may make the difference—and the Susskinds agree with those who claim that when it comes to computing power, we’re still in the very early stages. That said, those, such as myself, who think Susskind is on the right track in thinking that technology will displace lawyers in many settings are still waiting for conclusive examples.
More than that, Richard Susskind is a utopian and an optimist when it comes to whether having technology play a bigger role will be a good thing. Fundamentally, he sees technology solving problems that humans heretofore have been unable to solve. There are dystopian views of a technological future, however, and some would find no comfort in the prospect of machines interpreting, applying and sometimes enforcing laws, using algorithms that humans cannot see and could rarely understand.
Even more so than Susskind’s previous works, this is a book everyone concerned about what the future holds for the professions and young professionals should read. If this book is even half right, how we go about training bright young people for a role in the future world of legal services needs a radical overhaul. By working carefully through what new ways to manage knowledge might mean for people who ultimately owe their status to their command of esoteric knowledge and skills, the Susskinds have made an important contribution.
