Leslie Levin, Misbehaving Lawyers: Cross-Country Comparisons, 15 Legal Ethics 357 (2012), available at SSRN.
Commentaries on lawyer discipline often refer to practice areas that are involved in grievances. Discussions of lawyer discipline devote far less attention to examining the circumstances of particular grievances or the characteristics of the lawyers facing disciplinary charges. That is one reason why I especially liked Professor Leslie Levin’s Misbehaving Lawyers: Cross-Country Comparisons. This article was published in a special issue of Legal Ethics—the preeminent international legal ethics journal.
In his preface to the issue, Richard Abel described the premise of the special issue as follows: “we can illuminate the nature of and explanations for lawyer misconduct and the relative advantages of different regulatory responses by comparing case studies of lawyers disciplined a variety of countries.”1 In the special issue, experts presented fascinating case studies of lawyers disciplined in the authors’ home countries. Following these case studies, Professor Levin’s essay identifies similarities and differences among the cases studies written by experts from Canada, the Netherlands, the United Kingdom, Australia, and New Zealand. Anyone interested in lawyer conduct should read Professor Levin’s essay because it provides a concise and thoughtful analysis of patterns and problems that emerge from the accounts presented in the articles in the special issue. Legal profession scholars, lawyers who defend and prosecute disciplinary cases and malpractice cases, jurists, educators, and individual practitioners can learn a great deal by reflecting on Professor Levin’s observations.
Although case studies have their limits, Professor Levin points out that an examination of case studies suggests common conditions that lead some lawyers to misbehave. One common characteristic relates to the context of representation. Generally speaking, the lawyers in the case studies represented individuals facing some personal plight, such as persons facing criminal charges or family difficulties. (P. 358.) Other similarities relate to the psychological profile of individuals facing serious discipline. Each of the lawyers in the case studies appeared to be highly motivated by money. Professor Levin explains that the “love of money” is positively related to manipulative behavioral disposition. (P. 367.) To maintain their own self-esteem, the lawyers engaged in rationalization—shifting the blame to others. (Pp. 368, 370.) Consistent with this mindset, the lawyers did not show remorse. (P. 371.)
The lawyers’ self-deception may have been checked or tempered had peers or colleagues discouraged the misconduct. Professor Levin explains that positive peer influence was less likely to occur for the lawyers in the case studies because they largely practiced on their own or with others that were “ethically challenged.” (P. 358.) Outside of their own offices, lawyers did not appear to associate with “communities of practice,” defined as groups of lawyers with whom practitioners interact and to whom they compare themselves and look for common expectations and standards.2 Rather than adhere to community norms, these lawyers tended to rely on their own personal ethics. This can be particularly problematic when lawyers, especially litigators, set their own boundaries and feel pressure to “play as close to the line” as possible.
The case studies should also be of interest to legal educators who believe that that law school plays a role in shaping students’ professional identity and development.3 As Professor Levin points out, lessons from early in a lawyer’s career continue to influence that individual’s ethical decision-making. (P. 362.) Therefore, those of us in the academy should reflect on what we can do to help new graduates start off—and continue—on the right foot.
The essay should also motivate legal educators to consider their role as gatekeepers. In our dealings, we may occasionally encounter students who appear to be “pushing the ethical envelope,” even if they do not violate applicable rules. Query whether failing to deal with “ethically challenged” law students contributes to them feeling emboldened, believing that they can avoid consequences for acts and omissions that are inconsistent with professional norms.4
Finally, Professor Levin’s discussion of recidivism raises serious questions about the failure of the disciplinary systems to protect the public. Although there are numerous steps that may be taken to avoid and deal with misconduct, the essay clearly communicates the value of improving transparency so that members of the public can obtain information and protect themselves.
It is for these reasons that I would like to thank Professor Levin for continuing to prod us to reexamine how we discharge our responsibilities to police the legal profession.
- Richard Abel, Comparative Studies of Lawyer Deviance and Discipline, 15 Legal Ethics 187 (2012).
- P. 362 (quoting Lynn Mather, Craig A. McEwan, & Richard Maiman, Divorce Lawyers and Work: Varieties of Professionalism in Practice 6, 14 (2001).
- See Neil W. Hamilton, Fostering Professional Formation: Lessons from the Carnegie Foundation’s Five Studies on Educating Professionals, 45 Creighton L. Rev. 763 (2012) (providing insights on professional formation).
- “Ethically challenged students” refers to those who engaged in questionable conduct, but escaped formal discipline in school.