Context matters to lawyers. The representation of clients, advice-giving, advocating, drafting, and negotiating—indeed, the very exercise of professional judgment—all take place in a context that shapes and informs lawyers’ decision-making. Context, however, plays only a minimal role in the American Bar Association’s Model Rules of Professional Conduct (“Rules”). While some comments to the Rules often provide contextual examples, an underlying theme of the Rules is their universal appeal: the Rules are explicitly meant to be a one-size-fits-all model for all lawyers, irrespective of context. Some argue that the universal nature of the Rules renders them conceptually anachronistic and practically useless, and have called for the promulgation of rules of conduct more in tune with the increasingly diverse realities practicing lawyers face. Such a contextual critique consists of two steps. The first is empirical. Promulgating rules that meaningfully address the realities that lawyers face in practice requires an empirical understanding of these very realities. The second step is normative. Once empirical evidence is gathered, one has to decide what to make of it and whether and how to incorporate it into the Rules.
Lawyers in Practice: Ethical Decision Making in Context, a new volume of empirical work edited by Leslie Levin and Lynn Mather, significantly contributes to this universal-contextual discourse. It consists of sixteen excellent chapters examining in detail lawyers’ decision-making processes across thirteen different legal contexts including family, immigration, and personal injury, as well as corporate, securities, and IP law. “[T]he organized bar and many law schools,” write the editors, “continue to focus their discussion of legal ethics primarily on bar rules of professional conduct. That approach, this book suggests, is a serious mistake.” (P. 4.) Such a focus on the Rules is a mistake, assert Levin and Mather, because it ignores the importance of context: “[t]he chapters in this book look at lawyers’ decisions from the bottom up—that is, from the perspective of lawyers in practice—and not from top-down rules that often reveal more about the aspirations of the profession than the reality.” (P. 11.) “We hope,” conclude the editors, that “this book will help narrow the gap between what sociological scholars are learning about lawyers’ ethical decision making in context and the legal profession’s approach to the teaching and regulation of lawyers.” (P. 21.)
Lawyers in Practice persuasively demonstrates how context matters to lawyers. Consider the seemingly straightforward matter of communicating with clients. “Divorce is all emotion” said one attorney that Lynn Mather and Craig McEwen interviewed for their chapter on the challenges of divorce practice (P. 72), and such emotional turmoil matters because “communication with bewildered, distraught, and legally inexperienced clients [typical divorce clients] must take different forms than communication with legally sophisticated clients with well-defined objectives.” (P. 69.) Or consider the familiar “where were the lawyers?” complaint leveled against outside and in-house lawyers following corporate scandals. The kind of advice in-house lawyers give, shows Sung Hui Kim in her chapter, depends in part on the role that they play within their institutions. For example, in-house “entrepreneurs” who embraced the company’s business values “discounted their role in policing management . . . and displayed a tendency to minimize their gatekeeping role.” (Pp. 207–08.) “Cops,” on the other hand, who “identified most strongly with their status as lawyers . . . understood their primary job as policing the conduct of management.” (P. 213.)
This book will be of great interest not only to practicing attorneys, students, and scholars of the legal profession but also to policy makers and regulators. Consider the ongoing debate over the accountability problem of public interest lawyers. The accountability problem, explains Scott Cummings in his chapter on public interest practice, is commonly understood as the usurpation of weak clients’ exercise of control and authority over the objectives of the attorney-client relationship by strong powerful lawyers. (P. 341.) But this problem, argues Cummings, well-documented in the traditional context of the civil rights model, does not apply to new emerging models of public-interest law that feature relatively strong clients, or strong lawyers who play only a limited role in the representation of their clients. (P. 355.) Attempting to understand and address the problem of public-interest lawyers’ accountability to clients outside of relevant context, cautions Cummings, risks treating old problems in situations where they no longer exist and missing new problems altogether.
Given the insights that emerge from Lawyers in Practice, regulators might worry about whether the Rules’ universal one-size-fits-all approach well suits an increasingly multifaceted and diverse profession. Levin and Mather, for example, assert in their conclusion that “[t]he one-size-fits-all approach of the Rules . . . needs to be revised. At a minimum, the Rules should recognize and encourage compliance with codes for specialty practices . . . Specialty bar codes should be written to reflect the true challenges of the practice specialties . . .” (P. 370.) Others are not as certain. David Wilkins, for example, suggests that the ongoing trends of increased mobility, the rise of information technology, the use of unbundling and repackaging of legal tasks, the deregulation of organizational forms through which law can be practiced, the institutionalization of pro bono, and globalization may have blurred old practice lines and destabilized the profession to the extent of rendering contextual rules of professional conduct impossible. (Pp. 33–42.)
Lawyers in Context powerfully demonstrates how context matters to lawyers. It is essential reading for anyone interested in the practice of law and the future of the regulation of the legal profession.