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Politicizing the Bar Exam 

Rachel E. Stern, Political Reliability and the Chinese Bar Exam, 43 J. L. & Soc. 506 (2016).

The bar exam has rarely been of great interest to legal scholars. Although its format and pass rate vary substantially across countries and jurisdictions, it is often dismissed as merely a qualifying exam aimed at “controlling the production of producers,” as Richard L. Abel argues in his seminal book American Lawyers. Even in Japan, where the bar exam pass rate used to be as low as 2-3%, most discussions contemplating reform have focused on whether or not it is desirable to increase the number of lawyers. Although many law professors have taken the exam—and some, famously, have flunked it—there seems to be little scholarly interest in understanding its content.

This is why Rachel E. Stern’s new study on how China politicized its bar exam is both refreshing and insightful. In the process of researching Chinese law, Stern keenly observed a phenomenon that most other researchers took for granted. In particular, over the past decade, a number of “political questions” have been inserted into the National Judicial Examination—China’s unified bar exam for judges, procurators, and lawyers. These questions are not aimed at testing the test-takers’ legal knowledge or technical expertise but, rather, their understanding of the “socialist rule of law and the correct role of the Chinese Communist Party (CCP)” (P. 507), which are only remotely related to legal issues or the structure of the legal system. Although the political questions account for merely a small percentage of all exam questions, given the exam’s relatively low pass rate (only 11% in 2013), most test-takers still take them seriously.

The answers to many of the political questions appear enigmatic to non-Chinese readers, yet for the would-be Chinese legal professionals who prepared meticulously for the exam, finding the correct answers is not a difficult task. As Stern argues, this involves a process called “preference falsification” by political scientists, that is, an act of “navigating the gap between private beliefs and public expression.” (Pp. 525-26.) For citizens living in post-socialist or other authoritarian regimes, this is “an instinctive strategy for survival” (P. 526) acquired through years of living (and test-taking) experience. Through the bar exam and many other state-controlled exams, Chinese young adults are trained “in the art of orthopraxy,” (P. 527) and they can easily display public loyalty to the Party-state orally and in writing without true inner belief in its legitimacy. As one of Stern’s interviewees put it, “I have my personal opinion, but for the test I will do whatever the correct answer is.” (P. 526.)

Then comes the obvious question: Why put such political questions in a professional qualifying exam if few test-takers truly believe in their answers? Here Stern’s usually clear and convincing analysis gets a little ambiguous. She gives four possible explanations (i.e., to weed, warn, persuade, or train) but then rejects all of them. (Pp. 523-24.) Indeed, given the small percentage of political questions and the fact that most Chinese adults have mastered the “art of orthopraxy” in primary and secondary education long before they stand for the bar, the purpose of inserting this political element into the bar exam seems puzzling. Stern argues that the bar exam is not a warning, persuading or training tool, but “a site of political learning where test-takers refine and practice the implicit rules governing interactions with the state.” (P. 525.)

This is certainly true for the bar exam, but it is also true for many other exams. As Stern points out, similar questions widely exist in the college entrance exam, the civil service exam, and other professional licensing exams in China. Accordingly, finding the “standard answers” to political questions is a highly routinized practice for ordinary Chinese students and citizens. In this sense, inserting political questions into the bar exam is perhaps not as surprising to Chinese test-takers than to outside observers. It is possible that the practice reflected the particular political climate of the late 2000s, when “China’s turn against law” occurred, as Carl Minzner observes in his widely cited article. In that turn, the Chinese government and the CCP explicitly sought to situate the legal system under the more pressing concerns of maintaining social stability and preventing social unrests. Under this political background, making sure that future legal professionals at least understand (if not believe) the Party-state’s policy concerns seem a reasonable explanation for the “political turn” in China’s bar exam. After Xi Jinping’s rise to power in 2012, the CCP has been even more assertive on its role in the legal system and, therefore, the continuing use of political questions in the bar exam is not surprising.

Nevertheless, I agree with Stern that we need to take the political nature of professional qualification seriously, in China and elsewhere. In American Lawyers, Abel documents the history of “character tests” in the United States as a tool to exclude political dissidents from entering the bar. (P. 70.) In comparison to the exclusionary nature of the American-style character tests, the political questions in the Chinese bar exam constitute a subtler way of promoting lawyers’ political loyalty to the regime. Even though test-takers could theoretically give up all the political questions and still pass this exam, in practice most of them are trained to find correct answers to those questions, often through intensive cram courses and repeated practice exams. As a result, what Stern calls “preference falsification” exercises a symbolic function of defining the boundary of acceptable ideology and behavior under China’s political regime.

In this sense, the seemingly technical bar exam becomes an instrument of political control over the legal profession, a form of “soft repression” exercised not only by the state, but also by all the participants of the bar exam preparation. Stern gave a fascinating example of how a bar exam cram school lecturer explained to his class the fundamental logic of political questions in the exam: “memorize this one sentence . . . our Party is always glorious, great, and correct.” (P. 528.) As he continued to elaborate on this point with stories and jokes, the students laughed. But would they also laugh when they saw hundreds of activist lawyers detained in the “709 Crackdown” in 2015? Or when they heard the Supreme People’s Court President publicly denouncing judicial independence as an erroneous “Western concept” in 2017? Beneath the veneer of preference falsification there is a hard truth: The Party always trumps the law. This is the lasting pain of becoming legal professionals in China, and the bar exam is merely one of many symptoms in their careers that confirm it.

Cite as: Sida Liu, Politicizing the Bar Exam , JOTWELL (September 12, 2017) (reviewing Rachel E. Stern, Political Reliability and the Chinese Bar Exam, 43 J. L. & Soc. 506 (2016)), https://legalpro.jotwell.com/politicizing-the-bar-exam/.

Just Confidentiality

William H. Simon, Attorney-Client ConfidentialityGeo. J. Legal Ethics (forthcoming, 2017), available at SSRN.

In a concise and elegant essay, titled Attorney-Client Confidentiality: A Critical Analysis, William H. Simon offers a compelling justice-based critique of the doctrine of confidentiality. Defined broadly to encompass all “information related to the representation” of a client, the traditional doctrine, dubbed by Simon “strong” confidentiality (p. 1), forbids disclosure unless narrow exceptions apply (see Rule 1.6). Challenging both the expanse of the doctrine and its categorical posture, Simon instead advances what he calls “moderate confidentiality”—a duty that would “mandate preservation of confidentiality except where disclosure is clearly necessary to avert substantial injustice.” As Simon explains:

The moderate duty is sensitive to context and demands complex judgment on the part of the lawyer. In every case where confidentiality threatens to work injustice, the lawyer must weigh the value of client loyalty against the competing harm disclosure would avert. By contrast, the strong confidentiality of current doctrine is more categorical in form and seems designed to minimize judgment. Once there is a presumptively confidential communication, the lawyer is directed to consult a list of exceptions. If there is no relevant exception, confidentiality prevails over competing considerations, no matter how weighty they are. (P. 2.)

In so doing, Simon first rejects the two common justifications for strong confidentiality: the notion that strong confidentiality is needed to foster trust in the attorney-client relationship, which in turn makes the representation more effective, and the vindication of law and legal rights. Both justifications are codified in comment 2 to Rule 1.6. The comment reads in relevant part, “[confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter. The lawyer needs this information to represent the client effectively,” and adds that “[a]lmost without exception, clients come to lawyers in order to determine their rights and what is, in the complex of laws and regulations, deemed to be legal and correct.” (Rule 1.6, cmt 2.)

As to the first justification, Simon argues convincingly that trust in the attorney-client relationship if and when it results in substantive injustice to others, does not constitute a compelling justification to broad confidentiality. In Simon’s words, “the key underlying value of the legal system is justice. The legal system does not exist to create trust. It exists to create order within the limits of justice. When confidentiality threatens justice, as it often does in its strong version, it is implausible to assert that trust is more important.” (P. 3.) And, as to the second, Simon asserts that vindication of clients’ rights, either advising clients about past conduct or in connection with their future acts, does not require strong confidentiality, evident by the many exceptions to the existing doctrine. (Pp. 2-8.)

Having found the rationales for strong confidentiality “uncompelling,” the essay advocates a softer and more context-specific substitute. Simon points out that while the current doctrine appears to result in certainty for clients and lawyers regarding the application of confidentiality, strong confidentiality does not in fact provide clients with strict assurances that information related to the representation will never be disclosed. More importantly, Simon argues that the moderate approach he advocates still takes the form of a presumption in favor of confidentiality, while inserting justice – “the key underlying value of the legal system” (p. 3) – into the analysis, allowing lawyers to consider justice, if not as a client goal, then appropriately as a constraint on confidentiality and the representation itself. (P. 10.)

Justice, the cornerstone of any legal system, has long been a neglected aspect of the American legal system. While the Preamble to the American Bar Association Model Rules of Professional Conduct defines a lawyer to be “a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice,” U.S. lawyers increasingly understand their role predominantly in terms of the representation of clients, to the relative exclusion of meaningful duties as officers of the legal system and as public citizens, see here and here for a summary of the relevant data. Indeed, the Rules themselves specify few duties for lawyers as officers of the legal system and public citizens, and law schools and bar associations increasingly shy away from teaching, or even engaging their students and members in meaningful debates about conceptions of justice, see here. An increasingly competitive market for legal services informed by a business and legal cultures that treat the public interest as nothing more than the aggregate of clients’ private interests help further reduce the space for justice in lawyers’ practice of law.

Simon, however, asserts the inherent importance of justice, both as the underlying value of the legal system and as the cornerstone of the attorney-client relationship. This is where the essay is at its best: while “[t]he private lawyer has a duty to advance the private interests of the client . . . the private lawyer is to seek the client’s goals within the limits of justice.” (P. 10, emphasis in the original.) In a day and age in which some worry that justice, and, in particular, lawyers’ “special responsibility for the quality of justice,” have become little more than rhetorical gestures as opposed to real commitments of the legal profession, Simon’s insistence on taking justice seriously by incorporating it explicitly into arguably the most important doctrine to lawyers and their clients, is not only refreshing, but a fundamentally important stance.

Critics may argue about the details of Simon’s proposal. Some may accept that strong confidentiality is too broad and agree that a “softer” approach may be warranted, but nevertheless wonder whether alternative formulations of moderate confidentiality not involving justice may exist. For example, the 1969 Model Code superseded by the current Model Rules featured a narrower approach to confidentiality, protecting only confidences and secretes as opposed to “information related to the representation.” Others may worry about entrusting to lawyers some kind of a gatekeeping role, making them unelected justice-kings who can override confidentiality when they, but not their clients, believe that “disclosure is clearly necessary to avert substantial injustice.” And yet others will no doubt question the administrative costs of moving from a bright line strong confidentiality to an open ended “substantial injustice” standard.

Such likely disagreements over the particulars notwithstanding, the essay makes a unique contribution making it a must read for clients, lawyers and scholars of the legal profession. It makes a powerful case for the inherent role justice must play in the practice of law and in doctrines that regulate it. Bill Simon, of course, is not a newcomer to either arguing about the importance of justice to the practice of law.1 This essay builds on and extends Simon’s extensive contributions in at least two ways: it gives “coherence to confidentiality exceptions by unifying them around a single, compelling concept – justice,” and it offers an understanding of confidentiality that is “responsive to cases that fall in the cracks between the current discrete exceptions.” (P.12.)

  1. See William H. Simon, The Practice of Justice – A Theory of Lawyers’ Ethics (1998), or criticizing confidentiality, see, e.g., William H. Simon, The Kaye Scholer Affair: The Lawyer’s Duty of Candor and the Bar’s Temptations of Evasion and Apology, 23 Law & Soc. Inquiry 243 (1998); William H. Simon, The Confidentiality Fetish, Atlantic Monthly, Dec. 2004, at 113; William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer, 75 Fordham L. Rev. 1453 (2006).
Cite as: Eli Wald, Just Confidentiality, JOTWELL (July 28, 2017) (reviewing William H. Simon, Attorney-Client ConfidentialityGeo. J. Legal Ethics (forthcoming, 2017), available at SSRN), https://legalpro.jotwell.com/just-confidentiality/.

Looking For Competencies in all of the Right Places

Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation), 83 Tenn. L. Rev. 843 (2016), available at SSRN.

Few people would say that U.S. legal education is doing an absolutely perfect job. While there have been a number of different criticisms and reform proposals over the past thirty years, some common themes have emerged. One theme is that students are not equipped with the range of skills they need to help clients address multi-faceted issues in an interdisciplinary world.  Additional themes are found in the influential 2007 Carnegie Foundation report. Summarizing this report, one coauthor explained that legal education has generally done a good job with respect to the “first apprenticeship,” which is the “cognitive apprenticeship” of teaching students to think like a lawyer; that legal education has made modest improvements with respect to the “second apprenticeship” which involves skills and practice; and that legal education has done a poor job with respect to the “third apprenticeship,” which involves professional identity and values.

One recent article that addresses these legal education gaps is Neil Hamilton and Jerry Organ’s “Thirty Reflection Questions” article. Thirty Reflection Questions begins by discussing the concept of “learning outcomes,” including learning outcomes related to professional identity and values. This article cites the definition of learning outcomes found in a 2015 ABA accreditation Guidance Memo: “Learning outcomes must consist of clear and concise statements of knowledge that students are expected to acquire, skills students are expected to develop, and values that they are expected to understand and integrate into their professional lives.” For those who have not paid particularly close attention to the ABA Council’s relatively new Standard 302, the interpretative Guidance Memo, or the related literature, Part I of the article provides a very useful overview of the learning outcomes accreditation requirement and the rationale that lies behind it. Part II discusses how a law school curriculum can be designed in order to foster learning outcomes related to professional identity, taking into account research from other fields and data about law student development.1 Finally, Part III contains the thirty reflection questions referenced in the article’s title. This Part explains how a law school or faculty member can use the thirty questions to help law students obtain meaningful post-graduation employment, acquire the competencies that legal employers and clients want, and develop their professional identity.

I particularly like Part III because of the way that it links the topics of post- graduation employment, the “competencies” that legal employers want their new hires to possess, and professional identity formation. Part III explains how a law school or professor can use a law student’s interest in the first topic – his or her own employment outcome – as a way to foster development with respect to the other two outcomes. The authors explain that the breakthrough in their own thinking was when they decided to go where the students are and to recognize that virtually all students want post-graduation employment that is meaningful to them given their life experiences, talents and passions. (P. 876.) The reflection questions provide an “enlightened self-interest” entry point for students to proactively develop the competencies they need to serve clients and the legal system well and to develop their professional identity and a commitment to the legal system.

Part III explains how legal educators can use what the article describes as “the 14 Roadmap curriculum questions” to achieve the outcomes listed above. (( Because of the differing content and different target audiences, Thirty Reflection Questions is not a substitute for students for the Roadmap book even though the article discusses “the Roadmap curriculum.” For example, the Roadmap book includes extensive “competencies” data, but the Thirty Reflection Questions article does not. The article describes but does not include the Roadmap template that asks students to complete a Strengthsfinder 2.0 assessment, obtain a 360 degree assessment of themselves from others, and develop a networking plan. The book includes the Roadmap template and advises students how to use the fourteen reflection questions to create a Portfolio that will help them seek employment and decide what additional steps they need to take in order to develop the competencies needed to serve their clients and the legal system.

Although Thirty Reflection Questions is not a substitute for the Roadmap book, and although I strongly recommend to my students that they purchase the Roadmap book, it should be noted that some of the book’s content is available elsewhere. See, e.g., Neil W. Hamilton, Law Firm Competency Models and Student Professional Success: Building on a Foundation of Professional Formation/Professionalism, 11 St. Thomas L.J. 6 (2013)(compares the author’s Minnesota large law firm competencies data to the data found in four studies of law firm competency models); Neil Hamilton, Empirical Research on the Core Competencies Needed to Practice Law: What Do Clients, New Lawyers, and Legal Employers Tell Us?, 83(3) Bar Examiner 6 (Sept. 2014)(compares a synthesis of the author’s Minnesota data to the data from the NCBE’s newly licensed lawyer study).)) (Roadmap is a reference to Neil Hamilton’s 2015 book entitled Roadmap: The Law Student’s Guide to Preparing and Executing a Successful Plan for Employment.)  For example, Question 4 helps students better position themselves for the employment market by asking the following: “Looking at the competencies that clients and legal employers want, how do you self-assess what are your strongest competencies? How do others who know your past work/service assess your strongest competencies?” Question 10 helps students “progress in self-directed learning toward excellence at the competencies needed to serve clients and the legal system well” by  asking: “How do you plan to use your remaining time in law school, including the curriculum and all the other experiences of law school, most effectively to develop the competencies that support your value proposition? Are you assessing your progress in implementing your plan?” The 14 Roadmap curriculum questions help each student identify: 1) that student’s strengths and interests; 2) employers that would be a good fit given that student’s strengths and interests; 3) the “value proposition” that the student brings to a particular legal employer; and 4) how that student might use his or her remaining time in law school to further develop and then communicate to potential employers that student’s competencies.

Students who have used the Roadmap curriculum questions appear to have benefited from them.  For example, during Spring Semester 2015, 1L students at St. Thomas Law School completed the first fourteen questions, created a written professional development plan, and participated in a feedback meeting with a veteran coach.  Self-assessment data collected at the beginning and end of the semester showed that the percentage of students in Stages 1 or 2 of self-directed learning (out of four stages) was reduced from 54.4% to 9.8%.  By the end of the semester, more than 25% of the 1L students assessed themselves at the highest stage of self-directed learning. (P. 866.)

Thirty Reflection Questions offers the following description of its remaining sixteen questions:

If the 14 ROADMAP questions are designed to help the student determine what she wants to do as a lawyer as she writes the next chapters of her story toward meaningful employment, taking into account her strengths and passions and the needs of clients and employers, this second set of 16 questions is focused more on who the student wants to be as a lawyer, how she wants to conduct herself as a lawyer, and how she will balance her life as a lawyer in the context of her responsibilities to clients, to the legal system, and to all the other people in her life. These questions help the student navigate her relationship with clients and with the legal system.

Although legal educators may want to use the empirical data found in the Roadmap book to prompt students to think about the “competencies” that employers and clients value2 (and thus what it means to be a lawyer), there are a number of additional sources that one can draw upon.   For example, although it has been more than twenty-five years since the ABA issued the MacCrate Report’s Statement of the Fundamental Lawyering Skills and Professional Values, stakeholders continue to use the MacCrate list as an important benchmark3 For a much more recent example, one can consult the 2015 Foundations for Practice study, which surveyed more than 24,000 lawyers in fifty states in an effort to identify the attributes and competencies that lawyers need in the short-term, medium-term, and long-term. The Foundations for Practice data, which is available in an interactive format and is also summarized in reports, show that employers want a much broader array of skills and characteristics than students might realize.  For example, the surveyed employers wanted to hire students who had “competencies” that included, inter alia, communication skills, passion and ambition, integrity and trustworthiness, diligence, and common sense, as well as traditional skills such as legal research and writing.

Data from outside the United States is similar.  Several jurisdictions have identified – and, in some cases, have adopted as regulatory requirements – the competencies required of new lawyers.  Regulatory groups in Australia (see here and here), Canada (see, e.g., here, here, and here), England & Wales (see, e.g., here, here and here), and Scotland (here) are among those who have recognized that new lawyers need to possess competencies that go well beyond doctrinal knowledge and traditional legal skills. For example, Australia’s Competency Standards for Entry Level Lawyers include elements such as managing personal time, working cooperatively, and self-management. The National Entry to Practice Competency Profile adopted by the Federation of Law Societies of Canada includes client relationship management skills and practice management skills. The Statement of Solicitor Competence adopted by the UK’s Solicitors Regulation Authority includes competencies related to “working with other people” and related to “managing themselves and their own work.”

Competencies lists such as these4 are useful tools for law schools and legal educators who want their students to become better lawyers and who want to do a better job teaching professional identity and values. The Thirty Reflection Questions article is invaluable because it provides a roadmap educators can use to tie the competencies and professional identity material to student employment outcomes, which is an issue that students likely care about.5

In sum, Thirty Reflection Questions by Professors Neil Hamilton and Jerry Organ provides a great service to all legal educators and, even more importantly, to students and to the clients they one day will serve.  I encourage you to check out this very useful article.

  1. There are at least two reasons why a law school might include professional identity formation among its learning outcomes. As noted above, this was the third pillar of the Carnegie Foundation’s report. It is also related to accreditation Standard 303 (a)(1) which requires students to complete “one course of at least two credit hours in professional responsibility instruction that includes substantial instruction in the history, goals, structure, values, and responsibilities of the legal profession and its members.”
  2. Most, but not all, of the data in Roadmap focuses on the competencies that legal employers look for.  For information about what clients are looking for in their lawyers, see Susan Hackett, “It’s the Client, Stupid”, ABA Comm’n on the Future of Legal Services Webinar (Mar. 27, 2015).
  3. The MacCrate Report identified ten skills, including problem solving, legal analysis and reasoning, factual investigation, communication, negotiation, and organization and management of legal work, among others.  The four professional values listed in the MacCrate Report were the provision of competent representation; striving to promote justice, fairness, and morality; striving to improve the profession; and professional self-development.
  4. There are a number of “competencies” lists beyond those listed in this article, including the Marjorie Schultz/Sheldon Zedeck list of 26 Lawyering Effectiveness Factors; the National Conference of Bar Examiners’ “Newly Licensed Lawyers’ Study; the National Institute of Trial Advocacy (NITA)’s list of core competencies; the LexisNexis survey of law firm hiring partners; a survey of Harvard alumni working for “BigLaw”; and a list prepared by the Legal Education Committee of the Florida Bar Vision 2016 Commission.  Law firms have also developed competency lists.  See Hamilton, Law Firm Competency Models, supra note 2. 
  5. For the past two years, I have taught a required first year course that relies heavily on the questions and methodology set forth in Thirty Reflection Questions.  Further information is available here, here, and here.
Cite as: Laurel Terry, Looking For Competencies in all of the Right Places, JOTWELL (July 15, 2017) (reviewing Neil W. Hamilton & Jerome M. Organ, Thirty Reflection Questions to Help Each Student Find Meaningful Employment and Develop an Integrated Professional Identity (Professional Formation), 83 Tenn. L. Rev. 843 (2016), available at SSRN), https://legalpro.jotwell.com/looking-for-competencies-in-all-of-the-right-places/.

Russia’s Lawyers: Russia and the US Through the Lens of the Legal Profession

Kathryn Hendley, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, 1 Russian Politics 450 (2016).

The news about Russia’s interference in the U.S. election raises myriad questions for lawyers, including for students of the legal profession. For example, are Russia’s lawyers being trained in ways that position them to be complicit in President Putin’s increasing autocracy? Or is their education preparing them to challenge his control? Have they served as enabler or challenger in the past? Is there any reason to expect them to take a more activist role today? And generally, what explains the differences among nations in the ways lawyers pursue or forego action aimed at constraining governmental overreach and corruption?

These questions are among the topics explored by Kathryn Hendley in her work on the Russian legal profession and legal system. Hendley’s newest article, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, considers whether a group of recent law graduates “might be willing to take on the regime in defense of civil society.” (P. 452.) Her focus on lawyers arises from the recognition that “[l]aw has played a critical role in this strangulation of civil society” in Russia, on one hand, and that “[i]n some other authoritarian polities, lawyers have taken the lead in holding authorities to account, often paying a heavy personal price for doing so.” (P.451.) Their use of law’s mechanisms to pursue justice “act as signals … [that] may evince a nascent civil society ….” (P. 451.)

Hendley brings a career’s worth of insight and understanding about Russia to this question.1 Her starting point in this article is the observation that Russia’s lawyers generally “do not see their role as questioning the existing laws; they accept these as a given and work to maximize the benefits for their clients.” (P. 452.) While she notes exceptions, including the occasional lawyer who “represent[s] defendants in politically-charged cases,” (P. 452.)2 these do not support an expectation that lawyers will rise up in a public challenge to Putin. Nor is this simply a reflection of recent political regimes in Russia. Rather, as Michael Newcity wrote in an aptly-titled article, Why Is There No Russian Atticus Finch? Or Even a Russian Rumpole?, “casting lawyers, courts, juries, and judges in a positive, even heroic, light never took hold in Russia” despite widespread reforms initiated in 1864 based on “Western-style legal institutions.”3 Nevertheless, the question that Hendley raises is whether there is hope for change, particularly because “the legal profession is not static.” (P. 452.) he posits that change among those who study law and become lawyers in Russia may result in lawyers taking more activist roles. While it is not clear what, if anything, suggests that future lawyers will differ from past generations in this regard, one need only consider the forces of social media and information technology in recent world events to recognize the potential for more activist conduct.

To learn about this potential for change, Hendley has undertaken a new study focused on careers of Russian law graduates. This research is patterned on the After-The-JD study of US law graduates (P. 457.)4 and will involve a longitudinal study of law graduates who pursue various career paths. In this article, Hendley discusses results of a sample of 301 Russian law students who were about to graduate in 2015 from “a mix of state-funded and private law faculties from ten regions across Russia.” (P. 458.) The sample included students of various backgrounds and experiences who intended to pursue diverse career trajectories (including working in the criminal justice system, the state bureaucracy, corporate organizations (in-house positions), and private practice. (Pp. 457-459.)5

One of the survey questions asked students why they decided to study law. Nearly 30% of the respondents identified their motivation as a “desire to change or improve society.” Hendley focused on this group, which she dubbed the “Social Change Group,” to explore their potential for challenging Putin’s policies and authority. (P. 460.) In order to understand what “change or improve society” means in the Russian law student context and what attitudes it suggests regarding politics and political activism, Hendley analyzed the characteristics of the Social Change Group in comparison to those of other respondents.

Hendley’s findings are disheartening if unsurprising: The “data provide no evidence of a willingness on the part of the Social Change Group to make waves or challenge the status quo in any meaningful way.” Rather, “their passion for changing and improving society will be expressed by yoking themselves to the Putin agenda.” (P. 477.) At the same time, students in the Social Change Group were not naïve; they indicated an awareness of the effects of politics on the legal system, including, for example, “recogniz[ing] the existence and power of extra-legal factors on the courts, such as connections and bureaucratic incentives.” (P. 477.)

Hendley places some responsibility for the Social Change Group’s support for Putin’s regime on Russian legal education, which has been “traditionally focused on studying the statutory codes, with the goal of mastering their intricacies.” (P. 454) Russian law students are taught in

[t]he tradition of studying law by memorizing the key sections of the major codes [, which] inculcates a deep respect for the law on the books among law students. They are not encouraged to question its content. They neither study the twists and turns of legislative history nor do they debate how the law might be improved. This lack of emphasis on critical thinking facilitates an unquestioning accep-tance of the status quo. (P.476.)

Hendley’s analysis of legal education’s role in the development of Russian law students’ professional identity emphasizes what is missing as much as what affirmatively is conveyed:

The sort of critical thinking that is the hall-mark of Anglo-American legal education is mostly absent from Russian law faculties. As a result, according to the typology of lawyers developed by Nelson and Neilsen, Russian lawyers are best conceptualized as technicians, rather than as advisors or hired guns. They rarely take a leadership role in solving problems. Instead, their clients take the lead. This is not unique to Russia, but is often found in authoritarian polities. (P. 454.)6

In placing this responsibility on legal education, Hendley also highlights what she characterizes as the distinctively different approach of U.S. law schools, where teaching critical thinking is a common goal. Indeed, it is the focus of the Socratic Method.7 Critical thinking, after all, is the one thing that most agree is effectively taught in U.S. law schools. At the same time, it is almost an after-thought today, often absent from the current focus on students’ acquisition of specific practice skills, specialized knowledge and technological competency. But while these educational gains admittedly are important for new law graduates, they do not substitute for critical thinking in lawyers’ work.8 Amidst the debates about the shortcomings of U.S. legal education, critical thinking often is overlooked.

Hendley’s highlighting of difference offers some potential salve for the arduous experiences we are encountering in the U.S. today, including interference in the electoral system, political objections to the judiciary, threats to immigrants’ rights, and challenges to the relevance and continued viability of U.S. legal education. American lawyers’ response to the Trump Administration’s initial Immigration Order (aka the Muslim Ban) poses a stark contrast. It would be naïve to tie this difference in approach and attitude to a single source, of course, and many leading activists are not lawyers. But to the extent that legal education plays any part, it highlights the important role of US legal education in civil society generally. Which brings home yet another take-away from reading Hendley’s work: as is often the case, learning in a comparative context teaches as much about home as abroad.

  1. See, e.g., Kathryn Hendley, To Go To Court or Not? The Evolution of Disputes in Russia , in Sociology of Justice in Russia (Marina Kurkchiyan & Agnieszka Kubal eds., 2017); Kathryn Hendley, The Role of Law in Contemporary Russia , in Putin’s Russia (Stephen Wegren ed., 2015);Kathryn Hendley, Judges as Gatekeepers to Mediation: The Russian Case , 16 Cardozo J. of Conflict Resol. 423 (2015); Kathryn Hendley & Peter Murrell, Revisiting the Emergence of the Rule of Law in Russia, 16 Global Crime 19 (2015); Kathryn Hendley, The Puzzling Non-Consequences of Societal Distrust of Courts: Explaining the Use of Russian Courts, 56 Cornell Int’l L. J. 517 (2012); Kathryn Hendley, Varieties of Legal Dualism: Making Sense of the Role of Law in Contemporary Russia, 29 Wisc. Int’l L. J. 233 (2011); Kathryn Hendley, The Role of In-House Counsel in Post-Soviet Russia in the Wake of Privatization, 17 The Int’l J. of the Legal Prof. 5 (2010); Kathryn Hendley, ‘Telephone Law’ and the ‘Rule of Law:’ The Russian Case, 1 Hague Journal on the Rule of Law 241 (2009); Kathryn Hendley, Are Russian Judges Still Soviet?, 23 Post-Soviet Affairs 240 (2007); Kathryn Hendley, Law and Development in Russia: A Misguided Enterprise?, 90 Proceedings of the Am. Soc. of Int’l L. 237 (1996); Kathryn Hendley, Trying To Make Law Matter: Labor Law and Legal Reform in Russia (1996).
  2. Similarly, see Human Rights Watch, Crimea: Defense Lawyers Harassed , (Jan. 30, 2017); Peter Finn, Defense Attorneys Targeted in Russia, Washington Post (Aug. 14, 2005).
  3. Michael Newcity, Why Is There No Russian Atticus Finch? Or Even a Russian Rumpole?, 12 Tex. Wesleyan L. Rev. 271, 272-3 (2005).
  4. For information on After-The-JD, see American Bar Foundation, After the JD; see also, Ronit Dinovitzer et al., American Bar Foundation, After the JD: First Results of a National Study of Legal Careers (2004); Ronit Dinovitzer et al., American Bar Foundation, After the JD II: Second Results from a National Study of Legal Careers (2009); Gabriele Plickert, American Bar Foundation,After the JD III: Third Results from a National Study of Legal Careers (2017).
  5. Given that legal education is an undergraduate course of study in Russia, as in many civil law jurisdictions, it is not particularly surprising that many law graduates pursue careers in other fields. (P. 453.) On Russian legal education generally, see Dmitry Maleshin, The Crisis of Russian Legal Education in Comparative Perspective, 66 J. Legal Education 289 (2017).
  6. References omitted.
  7. See Elizabeth Garrett, Becoming Lawyers: The Role of the Socratic Method in Modern Law Schools, 1 Green Bag 2d 199, 201 (1998) (“The goal [of the Socratic Method] is to learn how to analyze legal problems, to reason by analogy, to think critically about one’s own arguments and those put forth by others, and to understand the effect of the law on those subject to it.”)(footnote omitted).
  8. See, e.g., Praveen Kosuri, Beyond Gilson: The Art of Business Lawyering, 19 Lewis & Clark L. Rev. 463, 481 (2015) (“When one thinks about a lawyer’s training, it is at its core about critical and analytical thought. That thought need not be relegated to applying securities law or drafting the best indemnity clause. It is equally valuable in helping clients solve problems that confront their business whether that problem has a solution rooted in the law or elsewhere.”).
Cite as: Carole Silver, Russia’s Lawyers: Russia and the US Through the Lens of the Legal Profession, JOTWELL (June 12, 2017) (reviewing Kathryn Hendley, Evaluating the Prospects for Young Lawyers to Remake Putin’s Russia, 1 Russian Politics 450 (2016)), https://legalpro.jotwell.com/russias-lawyers-russia-and-the-us-through-the-lens-of-the-legal-profession/.

Can Government Lawyers Be Heroes? 

Brad Wendel, Government Lawyers in the Trump Administration, Cornell Legal Studies Research Paper No. 17-04 (2017), available at SSRN.

In 1973, in what has come to be known as the Saturday Night Massacre, Richard Nixon attempted to fire special prosecutor Archibald Cox, prompting his own Attorney General to resign. In the wake of the Watergate scandal, the bar recoiled in shock as it acknowledged the number of lawyers complicit in illegal conduct. In this timely new article, Brad Wendel explores the obligations of government attorneys in an administration that has shown an unsettlingly similar disregard for legal limitations on its power.

It’s hard to keep up with the Trump administration’s distaste for dissent. Trump fired acting Attorney General Sally Yates when she refused to enforce his travel bans on individuals with visas from seven predominantly Muslim countries. White House Press Secretary Sean Spicer issued an ultimatum to state department civil servants, warning them to “get with the program,” and Senior White House Policy Adviser Steven Miller insisted that Trump’s national security decisions “will not be questioned.” Frustrated with the Washington Post’s coverage during the presidential campaign, Trump threatened to retaliate against owner Jeff Bezos by investigating Amazon for antitrust and tax violations. He responded to Judge Gonzalo Curiel’s unwillingness to dismiss a fraud suit against Trump University by insisting that the judge was biased because of his Mexican heritage. More recently, in a rage against the court that blocked his travel ban, President Trump tweeted an attack on the “so-called judge.” He vowed to use “enhanced interrogation techniques” and to throw flag burners in jail, with either ignorance or little regard for the fact that both have been determined to be illegal. Even Saturday Night Live spoofs prompt the President to engage in a barrage of social media insults.

Wendel easily convinces his readers that this administration has little tolerance for dissent, or what it might call disloyalty. In this climate, it is safe to assume that lawyers will be tested. Rather than wait for another Watergate scandal, Wendel offers a powerful guide for government lawyers. Building on his prior work, Wendel expresses little patience for arguments that a government lawyer owes her duties to the public or some abstract notion of the common good. He is disturbed by the arrogance or paternalism of a lawyer substituting her own opinion of what is in the public interest for that of her client. Most government lawyers do not serve the public interest writ large, but rather the particular agency in which they work. The people elect individuals to represent their interest, and it undermines both the democratic process and the rule of law when lawyers usurp that role.

The traditional obligations owed to the client do not, however, render the lawyer’s job ministerial. Drawing on the controversy over the now-famous torture memo, drafted by John Yoo and Jay Bybee, Wendel argues that lawyers have a fiduciary obligation to render competent, independent, and candid advice. While sympathetic to the context – The Office of Professional Responsibility’s (OPR) (an internal office devoted to ensuring that DOJ lawyers abide by their ethical obligations) report came shortly after 9/11 when the threat of terrorist activity seemed frighteningly real – Wendel concludes that the torture memo fell below these ethical standards. Wendel reminds attorneys who may be in a similar position in the Trump administration that, while OPR did not sanction Yoo or Bybee, it did conclude that it was a close question as to whether the lawyers intentionally or recklessly provided incompetent advice to their client. In an ironic twist, even Yoo believes that President Trump has an unhealthy attitude toward the power of the executive.

Amidst all of this, we have seen and are likely to continue to see an unprecedented number of leaks from within the administration. While it might be tempting to supply inside information to journalists, Wendel argues that government lawyers should think twice before following in Daniel Ellsberg’s shoes. Wendel discusses the ethics of whistleblowing for government lawyers and concludes that even the most well-intentioned act might be a betrayal of client confidences, a breach worthy of censure. The lawyer engages in misconduct if the disclosure does not fall under the exceptions in Model Rule 1.6 or 1.13, even if it is authorized by federal statutory provisions. Similarly, lawyers who were thinking of reviving Duncan Kennedy’s call for “sabotage” – the intentional rebellion against an evil client’s wrongful acts – are risking their license and betraying their professional obligations.1

This does not leave government lawyers as defenseless pawns in President Trump’s game. Wendel explains that the government is designed with “competing power centers” to help preserve liberty, democratic accountability, and the rule of law. Lawyers can ethically work with their client to exercise this intra-branch check on presidential power, but they enjoy only a limited ability to do so. A lawyer can resign if her client persists in crime or fraud involving the lawyers’ services or if the client persists in a course of conduct which the lawyer finds repugnant. They have an obligation to the rule of law, which according to Wendel, is a culture of argument, or a “system for reasoned analysis through which norms can be contested and established.” It is this concept of a rule of law that limits government lawyers from caving to power.

With his usual grace and logic, Wendel presents a convincing account of a robust if limited role for lawyers in the Trump administration. They cannot run wild as moral arbiters of all that their bosses choose to do, but they play an important role in reigning in an administration whose respect for the rule of law is thin at best. Even more hopeful at a time in which our country seems so deeply divided, Wendel sets a course for professionals in preserving a rule of law that transcends partisan politics.

Wendel’s argument is most compelling when he discusses the role of lawyers in the Office of Legal Counsel and Attorney General’s office, whose job it is to provide advice on the legality of executive action. I’m not as persuaded when he includes lawyers who staff more bureaucratic positions, as it is not as clear that the law governing lawyers should or does limit their role quite as much. Career civil servants can be the last line of defense and an important form of resistance when traditional checks on naked power fail. Shouldn’t professionals who staff government agencies, like all civil servants, draw on their experience and knowledge to protect the public from unsound policies?  Wendel implies that lawyers, who are essentially acting as civil servants, may have a greater obligation to give in to Spicer’s plea to “get with the program” than their nonlawyer counterparts, but there is something unsatisfying about a profession that bars its members from joining other bureaucrats in drawing on their experience and expertise to protect the public interest.

  1. Duncan Kennedy, Rebels from Principle: Changing the Corporate Law Firm from Within, Harv. L. Sch. Bull. (Fall 1981), at 39.
Cite as: Rebecca Roiphe, Can Government Lawyers Be Heroes? , JOTWELL (May 11, 2017) (reviewing Brad Wendel, Government Lawyers in the Trump Administration, Cornell Legal Studies Research Paper No. 17-04 (2017), available at SSRN), https://legalpro.jotwell.com/can-government-lawyers-be-heroes/.

Legal Ethics After Liberalism

David Luban and I just finished a paper celebrating the 30th anniversary of the Georgetown Journal of Legal Ethics. It recounts the history of the subfield of philosophical legal ethics, organized around two generations of scholarship.1 The first generation located legal ethics within moral philosophy, seeking to connect the lawyer’s role with values such as autonomy, loyalty, and human dignity. First-generation scholars tended to agree with Arthur Applbaum that conventional and institutional considerations, such as social roles and rules of professional conduct regulating professions, did not relieve lawyers of the burden of articulating a justification, in ordinary moral terms, for their actions.2 The second generation, by contrast, regarded legal ethics as a branch of political philosophy, and the central problem not being individual moral agency, but the fact of a society characterized by a plurality of reasonable moral, religious, and political beliefs. A commentator challenged us to anticipate what themes the third generation of legal ethics scholarship would develop, and it occurred to us that we should add a fourth possibility, namely a radical position that is critical of the apparatus of positive law and liberal rights, perhaps as a kind of throwback to Critical Legal Studies.

Canadian legal theorist Allan Hutchinson’s recent book, Fighting Fair: Legal Ethics for an Adversarial Age, is just such a contribution to the debate. It is a fascinating combination of radical and old-school, with its reliance on virtue ethics and traditional conceptions of professionalism. Hutchinson rightly points out that the justification for the so-called standard conception of legal ethics, with its familiar tripartite structure of partisanship, neutrality, and non-accountability, is borrowed from liberal political and legal theory. (P. 43.) The problem with it, in a nutshell, is that the standard conception gives priority to the interests of clients over the public interest. (P. 53.) Of course, calling upon lawyers to pay more attention to the public interest has long been a staple of anguished reflections by lawyers and academics on the woeful state of the legal profession. Consider much-discussed books such as Mary Ann Glendon’s A Nation Under Lawyers and The Betrayed Profession by Sol Linowitz from the 1990’s, and more recent work such as Deborah Rhode’s The Trouble with Lawyers. What is distinctive about Hutchinson’s proposed reform of the standard conception is his analogy with the ethics of warfare. He anticipates that readers may blanch at that comparison. Doesn’t the legal profession need less adversarialness, not encouragement to think of litigation as war? Readers old enough to remember Sylvester Stallone action movies from the Reagan years will recall that an unethical style of practice was often referred to a “Rambo lawyering.” The so-called professionalism movement, which was active in the 1990’s, sought to restrain adversarial excesses and restore a spirit of cooperativeness and civility to litigation. Moreover, most lawyers are not litigators, and while it is true that transactional practice can be adversarial, in business practice there is at least the theoretical possibility of obtaining a good deal for all the parties. And what about lawyers who advise clients and bring them into compliance with the law? The warrior ethos central to Hutchinson’s book seems an inexact analogy for what many lawyers do in practice.

Hutchinson is fine with the adversary system. The distinction he really wants to hold onto within an adversarial arena is between soldiers—members of the armed forces of a state—and mercenaries. The contrast is one of motivation. Mercenaries are just in it for the money, while soldiers “are knowledgeable about war in both its operational and reflective dimensions, they respect the value of human life, and they are self-conscious of their moral responsibilities as soldiers.” (P. 61.) Modern lawyers, Hutchinson argues, are more like mercenaries than soldiers. Why? Because they are indifferent to their clients’ ends and committed only to a thin conception of the rule of law as procedural justice, unconcerned with substantive ends such as human rights. (P. 63.) By contrast warriors, after whom Hutchinson would prefer to model lawyers, “are as much concerned with honor and moral worth in how they go about their tasks as anything else.” (P. 65.) This contrast rings true for someone who has read extensively about the Bush Administration’s response to the September 11th terrorist attacks. The strongest opponents of the use of torture by the CIA and the uniformed services were military officers and lawyers.3 The warrior ethos proved to be one of the few ethical visions capable of resisting the relentless pressure from Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, and other high-level political officials who wanted to take off the gloves when dealing with suspected terrorists.

The contrast between mercenaries and warriors suggests some openness on Hutchinson’s part to a return to virtue ethics. What distinguishes virtue ethics from more familiar consequentialist and deontological is the emphasis within the former on the dispositions of the agent to act, think, or feel in particular ways. A mercenary and a warrior both fight, kill, and risk death in combat, so the action in either case is the same; the difference is that a warrior goes into battle for the right reasons. Military ethicists have made serious attempts to grapple with emerging technologies such as remotely-piloted aircraft and unarmed aerial vehicles by using the techniques of virtue ethics. For example, a recent book by a U.S. Air Force colonel and F-16 pilot argues that fighter pilots engage in combat with “heart,” while stateside drone operators occupy a morally ambiguous position.4 The warrior ethos emphasizes the equality of combatants, as manifested in their mutual exposure to the danger of violent death. Of course, mercenaries also put themselves at risk—perhaps even greater risk if they serve in relatively less cohesive and well-trained units than regular soldiers—so that is not the distinction Hutchinson needs to ground his moral disapproval of lawyers as mercenaries. Hutchinson does follow Col. Riza in thinking that something like equality of combatants is a distinguishing feature of the warrior ethos, although he puts it more in terms of fighting fairly and refraining from humiliation. (Pp. 66, 91, 102.) The influence of virtue ethics comes through more clearly in Hutchinson’s repeated reference to fighting with honor and respect for one’s enemies, which is an addition to the body of just war theory from which he draws much of his argument. Standard jus in bello analysis looks at proportionality and the protection of civilians, but Hutchinson’s concern is also with whether soldiers act with virtues such as self-control, courage, and persistence. (P. 92.)

Hutchinson is a severe critic of what he calls traditionalists about legal ethics (p. 37), but ironically his position is, if anything, even more deeply rooted in the tradition of professionalism. Sociologists from Émile Durkheim in the Nineteenth Century to Talcott Parsons in the Twentieth have maintained that lawyers are intermediaries between citizens and the state, whose professional judgment can be exercised to meld disputatious individuals and groups into a common social order. Like Rousseau, who distinguished between private interests and the general will, lawyers understood their role as pursuing the private interests of clients within the constraints of the public good. Or, to use the term associated with the civic republican tradition, lawyers are in a better position than their clients, or for that matter official legal institutions like legislatures and courts, to exercise civic virtue – that is, an impartiality among private interests, with due concern for the public good or general welfare of society.5 In the Twentieth Century this ideal was expressed in Harvard Law School Dean Roscoe Pound’s definition of a profession as a group “pursuing a learned art as a common calling in the spirit of public service.”6 While neo-classical economists understood society as nothing more than an arena of competition for atomistic individuals pursuing their own interests, constrained only by the deterrent effect of sanctions for unlawful conduct, lawyers who subscribed to this ideal of professionalism sought to discern, internalize, and act on the general moral norms of their society.

The ideal of professions as custodians of the public interest was regarded with increasing skepticism throughout the second half of the Twentieth Century, and is now all but a dead letter. As Rebecca Roiphe shows in a recent brilliant synthesis, intellectual pressure on the traditional professional ideal came from two directions: public-choice theory, which understood laws as nothing more than something offered for sale on a market, in exchange for votes or financial support by organized interest groups, and the moral pluralism associated with Isaiah Berlin and the later Rawls, which emphasized the existence of multiple, incompatible reasonable conceptions of the public interest.7 After the collapse of the traditional professional ideal, legal ethics scholars sought to reconstruct the discipline as described above – in the first generation, as responsive to ordinary moral considerations such as dignity and autonomy, and in the second generation, as responsive to political ends such as procedural justice and the rule of law. Neither of these responses appeals much to Hutchinson. He finds the second generation barren and technocratic, and has surprisingly little to say about the first generation. (Canonical scholars like Luban, Postema, and Wasserstrom are not cited at all.) There is tension in Hutchinson’s book between radicalism and traditionalism, but in the end what wins out is a kind of nostalgia for a lost era of chivalrous combat between knights-errant, combined with an almost eschatological vision of “a future situation in which war will no longer be possible between the parties.” (P. 113.)

I’m all in favor of awaiting the coming of the peaceable kingdom, but in the present circumstances of comprehensive and pervasive disagreement about matters of public policy, I’ll stick with political liberalism and the rule of law as the starting points for legal ethics. However, I am more sympathetic than many within legal ethics to the revival of virtue ethics. I’m not sure the warrior archetype is the right analogy for what most lawyers do, most of the time, in practice. But I do think Hutchinson is right to focus attention on the idea of acting for the right reasons. I also worry quite a bit about the thinness of political liberalism as a basis for social solidarity. Atomistic individualism and rights-talk can lead to political polarization and paralysis of democratic institutions, and the result may be that professions become increasingly important as conservators of public values. Fairness is a value that is relatively less important in American political culture as compared with other English settler nations such as New Zealand.8 Hutchinson’s call to the legal profession to reorient its ethical norms around the idea of fighting fair is one possible response to the dysfunction of American political culture.

  1. David Luban & W. Bradley Wendel, Philosophical Legal Ethics: An Affectionate History, 30 Geo. J. Legal Ethics __ (2017).
  2. Arthur Isak Applbaum, Ethics for Adversaries (1999).
  3. See Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals 214-33 (2008).
  4. M. Shane Riza, Killing without Heart: Limits on Robotic Warfare in an Age of Persistent Conflict (2013).
  5. Charles-Louis de Secondat, Baron de Montesquieu, The Spirit of the Laws § 4.5 (Thomas Nugent, trans., 1949).
  6. Roscoe Pound, The Lawyer from Antiquity to Modern Times 5 (1953).
  7. Rebecca Roiphe, The Decline of Professionalism, 29 Geo. J. Legal Ethics 649 (2016), available at SSRN.
  8. David Hackett Fischer, Fairness and Freedom—A History of Two Open Societies: New Zealand and the United States (2012).
Cite as: W. Bradley Wendel, Legal Ethics After Liberalism, JOTWELL (April 6, 2017) (reviewing Allan Hutchinson, Fighting Fair: Legal Ethics for an Adversarial Age (2015)), https://legalpro.jotwell.com/legal-ethics-after-liberalism/.

The Role of “Good Prosecutors” in Advancing Access to Criminal Justice

Bruce A. Green, Access to Criminal Justice: Where Are the Prosecutors? 3 Tex. A&M L. Rev. 515 (2016).

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.”1 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.2 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.

  1. Bruce A. Green, Why Should Prosecutors “Seek Justice”? 26 Fordham Urban Law Journal 607 (1999).
  2. See Ellen Yaroshefsky & Bruce A. Green, Prosecutor’s Ethics in Context: Influences on Prosecutorial Disclosure, in LAWYERS in Practice, Ethical Decision Making in Context (Leslie C. Levin & Lynn Mather, Eds).
Cite as: Susan Fortney, The Role of “Good Prosecutors” in Advancing Access to Criminal Justice, JOTWELL (February 20, 2017) (reviewing Bruce A. Green, Access to Criminal Justice: Where Are the Prosecutors? 3 Tex. A&M L. Rev. 515 (2016)), https://legalpro.jotwell.com/the-role-of-good-prosecutors-in-advancing-access-to-criminal-justice/.

‘Benchmarking’ Ethical Identity of Law Students and How it is (or is not) Impacted by Law School

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.1 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.2 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.’3 Elizabeth Mertz describes a language of indoctrination at law school which favours professional ‘hubris’ over social justice and moral reasoning.4 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.

  1. Elizabeth Chambliss, Whose Ethics? The Benchmark Problem in Legal Ethics Research, in Lawyers in Practice: Ethical Decision Making in Context 47, 48 (L. Levin, & L. Mather eds., 2012)
  2. Eli Wald & Russ Pearce, Making Good Lawyers, 9 U. St. Thomas L. J. 403 (2011), available at SSRN.
  3. Margaret Thornton, The New Knowledge Economy and the Transformation of the Law Discipline, 19 IJLP 265 (2012), available at SSRN.
  4. Elizabeth Mertz, The Language of Law School (2007).
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/.

American Legal Ethics: Federalized, Privatized …Commercialized?

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.”1 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].”2 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!

  1. See, for example, Fred C. Zacharias, Federalizing Legal Ethics, 73 Tex. L. Rev. 335 (1994); Daniel R. Coquillette & Judith A. McMorrow, Zacharias’s Prophecy: The Federalization of Legal Ethics Through Legislative, Court, and Agency Regulation, 48 San Diego L. Rev. 123 (2011); Eli Wald, Federalizing Legal Ethics, Nationalizing Law Practice, and the Future of the American Legal Profession in a Global Age, 48 San Diego L. Rev. 489 (2011); and Christopher J. Whelan & Neta Ziv, Privatizing Professionalism: Client Control of Lawyers’ Ethics, 80 Fordham L. Rev. 2577 (2012).
  2. ABA Commission on Ethics 20/20, Informational Report to the House of Delegates 6 (2011),
Cite as: Amy Salyzyn, American Legal Ethics: Federalized, Privatized …Commercialized?, JOTWELL (November 21, 2016) (reviewing Renee Newman Knake, The Commercialization of Legal Ethics, 29 Geo. J. Legal Ethics 715 (2016), available at SSRN), https://legalpro.jotwell.com/american-legal-ethics-federalized-privatized-commercialized/.

How Do Lawyers’ Expertise Matter in Ordinary Litigation?

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.

Cite as: Sida Liu, How Do Lawyers’ Expertise Matter in Ordinary Litigation?, JOTWELL (September 26, 2016) (reviewing Rebecca L. Sandefur, Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact, 80 Am. Soc. Rev. 909 (2015)), https://legalpro.jotwell.com/how-do-lawyers-expertise-matter-in-ordinary-litigation/.