ethics in legal education and the legal profession

8/10/2019 Ethics in Legal Education and the Legal Profession

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For many lawyers, these public perceptions have been a source of longstanding frustration. When askedto identify the most important problems facing the profession, lawyers consistently have put public imageand credibility at the top of the list. Yet when confronted with specific complaints, attorneys' responsetypically has alternated between irritation and resignation. From their vantage, popular perceptions seemunfair and uninformed, largely a result of bad press. But the bar's own commissioned research suggests amore complicated picture. Most Americans have had direct contact with attorneys. Three quarters of the

public have retained lawyers and half have had some dealings with them on a more than occasional basisMoreover, the individuals most likely to have negative impressions of attorneys are those with the most

knowledge and personal experience. Corporate clients are among lawyers' harshest critics. By contrast,those who know relatively little about the legal profession and the legal system, and who get theirinformation primarily from television, have the most favorable impressions. Contrary to widespread

perceptions, televised portraits are overwhelmingly favorable.

While lawyers are probably right that newspaper coverage is skewed in the opposite direction, much ofthe adverse press coverage is consistent with people's personal experience. The problem, in short, is morewith the reality of lawyering than its image.

Yet finding solutions is more difficult than the public typically acknowledges. A large part of populardislike of lawyers stems from aspects of the legal system that are not readily changed. Indeed some

discontent is endemic to any system of dispute resolution. The contexts in which people encounter theprofession are often unpleasant: divorce, bankruptcies, personal injuries, or contractual disputes. Thisunpleasantness inevitably affects perceptions of lawyers who are profiting from others' miseries.Attorneys are also the messengers of unwelcome messages about the law, so they readily becomescapegoats when the justice system fails to deliver justice as participants perceive it.

America's adversarial system compounds popular frustration. Litigation is rarely a win-win enterpriseand losers are apt to put some of the blame on lawyers. The targets of resentment are not, however, only-or even primarily-the parties' own attorneys. Between two-thirds and three-quarters of surveyedindividuals are satisfied with their lawyers. The public's major grievances involve perceived abuses by

other peoples' lawyers and a system that fails to prevent them. As one columnist notes, "Everyone wouldhate doctors, too, if every time you went in the hospital, your doctor was trying to take your appendixout, and the other guy's doctor was standing right there trying to put it back in."

It is, however, by no means clear that the public would prefer a substantially different structure in whichlawyers played a substantially different role. In fact, Americans are ambivalent. Much of what peopledislike about opposing counsel is what they value in their own. One of the most positive traits that the

public associates with lawyers is that their first priority is loyalty to their clients. Yet one of the mostnegative traits is lawyers' willingness to manipulate the system on behalf of clients without regard toright or wrong. People hate a hired gun until they need one themselves.

The public is similarly conflicted about the tension between money and justice. Americans dislike thefact that lawyers are for sale and that law is accessible only to those who can afford it. But Americansalso dislike efforts to remedy that imbalance. Justice is what we proclaim on courthouse entrances, not inredistributive policies. Over three-quarters of the legal needs of low-income households remain unmet.As one Denver legal aid attorney observes, "The only thing less popular than a poor person these days isa poor person with a lawyer."

Although part of the public's discontent with lawyers reflects misplaced or displaced frustrations, not allof its complaints should be so readily dismissed. Many criticisms of professional conduct and regulatory

processes have a strong basis in fact. On matters such as excessive fees, unresponsive disciplinary


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structures, and overly broad protections of the professional monopoly, the public does not appearambivalent, and its concerns do not seem unwarranted.

In short, on some important issues of professional regulation, the problem is not so much that the publicis uninformed or undecided, but rather that it is unorganized and uninvolved. For the vast majority ofAmericans, such issues are not a priority. Although egregious abuses occasionally galvanize the publicinto action, non-lawyers seldom have sufficient incentives to organize around questions involvingregulation of lawyers. By contrast, the legal profession has every incentive to pursue regulatory concerns

and to block initiatives that advance public interests at the expense of its own.

Yet the conditions for building a reform constituency within the profession have seldom been better.Discontent among attorneys is pervasive and increasing. A majority of lawyers report that they wouldchoose another career if they had the decision to make over, and three-quarters would not want theirchildren to become lawyers. The symptoms of professional malaise are also reflected in health-relateddifficulties. An estimated one-third of American attorneys suffer from depression or from alcohol or drugaddiction--a rate three to four times that of other Americans. Although the primary sources of lawyers'discontent vary somewhat across different areas of practice and demographic groups, the most commonthemes involve the culture of the profession, the structure of their workplaces, and the performance of the

justice system.

At the most general level, many lawyers express concern about the "decline of professionalism," whichcaptures a range of more specific complaints. About three-quarters of surveyed lawyers believe that

practitioners are more "money conscious," half think they are less civil, and a third report that they aremore likely to lie than in earlier eras. A sense of decline also appears in prominent critiques of

professional culture, most prominent The Lost Lawyerby Yale Law School Dean Anthony Kronman. Toborrow one bar association description, it is as if lawyers are "searching for their lost wigs."

That search is bumping up against several recent developments in the market for legal services. Increasesin the number of lawyers have increased the level of professional competition and diminished the force

of informal community sanctions. Price consciousness among corporate clients, together with therelaxation of bar restrictions on competition within and across professions, also have intensifiedeconomic pressures in private practice, and have led to increased instability in lawyer-clientrelationships. As a consequence attorneys face intense pressure to serve clients short-term interests at theexpense of other values.

Part of the dishonesty, incivility, and acrimony that lawyers find troubling in current practice seemsdriven by these profit dynamics. As Richard Posner points out, competitive markets are "no fun for mostsellers." Law is not an exception and fun is not the only casualty.

Legal practice has become more competitive within as well as among law firms. Partnership means less

and is harder to obtain. As the likelihood of promotion diminishes, the competition among young lawyersintensifies. Incoming associates are wined and dined, then worked to death. Most lawyers now bill over200 hours a month, and to charge honestly at that level, they need to work about a sixty-hour week.Especially in large firms, where hourly demands are often higher, all work and no play is fast becomingthe norm rather than the exception.

What loses out is not just leisure. It is also the opportunities for pro-bono service, civic involvement, andbreadth of experience that build professional judgment and sustain a professional culture. So too, almosthalf of American attorneys feel that they don't have enough time for their families.


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For women, who still assume about 70 percent of the domestic responsibilities in the average dual careerhousehold, the puritan-ethic-run-amok poses special difficulties. Recent reports on women's status in lawfirms describe, in deadening detail, the sweatshop schedules for many full-time attorneys and the glassceilings for part-time practitioners. Female lawyers speak of not seeing their children awake for a week,of leaving their social life on perpetual hold, and of negotiating with a "very understanding" supervisor inorder to work only from six a.m. to six p.m.

Those with greatest family commitments often drift off the partnership track, leaving behind a decision

making structure insulated from their concerns. Such patterns help account for the persistent under-representation of women in positions of greatest professional status and reward. The problem in some ofthese settings is not only the quantity of work but also the quality--as Steve Gillers puts it, too much of

practice is "nasty, narrow . . . relentlessly repetitive, and strangely unconnected to a dimly recollectedpurpose in choosing law."

This lack of larger purpose accounts for the greatest gap between expectations and experience amongAmerican lawyers. In the ABA's mid-l990s survey of career satisfaction, less than a fifth of surveyedattorneys felt that legal practice had "very well" lived up to their expectations in contributing to the socialgood. A quarter felt that law had "not at all" satisfied this aspiration.

There are a number of problems with the problem as the profession perceives it . One is the bar's highlyselective historical memory--what Marc Galanter terms "the golden age of legal nostalgia." In fact, oncertain measures of professionalism, not everything is getting worse. For some, we don't know what onceit was--for example, public service and pro-bono work. For others, such as diversity and professionalethics education, the problems are clearly getting better.

It does not follow, however, that the current sense of disquiet is inappropriate or unimportant. Theproblems rather are that the bar's descriptions are selective and simplistic and their prescriptions aresuperficial and occasionally sophomoric.

The driving force of much of what lawyers dislike, but also very much like, about legal practice ismoney. This is an awkward fact the bar is reluctant to face. There are occasional suggestions that lawyersshould rise above their baser instincts, but this approach, which theorist Stanley Fish describes as "justsay no to greed," appears to have fallen somewhat short.

Although lawyers often acknowledge that money is part of the problem, they generally manage to placeresponsibility anywhere and everywhere else. In no context is this more apparent than law firms. Partners

blame mercenary and unrealistic associates, while associates blame mercenary and unfeeling partners. Infact, there is plenty of blame to go around. Much evidence suggests that both groups overvalue income asa source of satisfaction. In private practice, too much emphasis is put on salaries at the expense of othervalues.

A related problem involves the tension between moral independence and more worldly rewards.Professional rhetoric tends to paper over this conflict by making a virtue out of expedience. Under

prevailing norms of professional responsibility, morally independent lawyers should not choose toexercise moral independence within their professional roles. Rather, their preeminent ethical obligation isfidelity to client interests. Over the last century, the bar's codes of conduct have progressively narrowedthe moral discretion that lawyers are expected to exercise once they have accepted representation. Theassumption underpinning bar ethical codes is that the most effective way to discover truth and preserverights is through an adversarial process in which lawyers have "undivided fidelity to each client'sinterests as the client perceives them." This assumption remains plausible only if all interests have


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comparable access to information and legal representation. Such conditions seldom prevail in the worldthat most lawyers encounter. The result is a dispiriting disjunction between current norms and traditionalaspirations.

A final problem, similarly unacknowledged in professionalism debates, involves the tension betweenprofessional autonomy and public respect. While many practitioners resent the level of popular animositytoward the profession, they generally resist efforts to address its sources, or to acknowledge any tension

between public accountability and professional autonomy. Rather, the assumption frequently repeated in

ethical codes and professionalism discussions is that the bar's power of self-regulation serves the publicinterest, by helping to "maintain the legal profession's independence from government domination."

Almost never do bar leaders acknowledge the possibility that self-interest has skewed lawyers' sense ofthe public interest and the structure of self-regulation. Yet studies of these regulatory processes uniformlyfind serious flaws in their responsiveness to non-client interests and to ordinary consumer grievances. Aslong as lawyers resist greater public accountability, they are unlikely to win greater public confidence.

Alternatives

If lawyers are seriously committed to fostering professionalism, they first must develop a clearer sense of

what it means and the tradeoffs it requires. The bar needs a vision beyond the wistful nostalgia andwishful exhortation that dominate current debates.

Although this is not the occasion for a full-scale blueprint of that alternative vision, certain guidingprinciples bear emphasis. These involve diversity within the profession, moral responsibilities of lawyersaccess to legal services, and public accountability for professional regulation.

The first of these principles calls for adequate recognition of variation among lawyers. This is an era of"postmodern professionalism," with identities fractured along lines of personal background, substantivespecialty, and practice setting. The profession needs to recognize in form what is true in fact. Lawyers

with diverse backgrounds and practice contexts need different preparation and sources of guidance. Ourcurrent one-size-fits-all model of legal education and professional regulation badly needs revision; itneeds more diverse regulatory and credentialing processes than ABA-approved ethical codes, admissionand disciplinary structures.

In a profession that is sharply divided and scarcely disinterested, current codes end up reflecting too higha level of abstraction and too low a common denominator of conduct. A true commitment to

professionalism will require supplementing codes with more specific and more demanding standards.That process is already underway, but much could be done to expand its reach. If specialized associationslike the American Academy of Matrimonial Lawyers certified lawyers who comply with such standards,the consequence could be a more efficient market in reputation and a more effective reward structure for

ethical performance. So too, if heightened conduct requirements were reinforced by courts, bar ethicscommittees and workplace policies, the result might be improved practice norms for much of the

profession.

Adequate recognition of diversity within the profession will also require more adequate equalopportunity initiatives and more flexible workplace cultures with greater attention to quality of lifeissues. Lawyers have long been leaders in the national struggle for equal opportunity. The challengeremaining is for them to confront the barriers in their own profession.

A second guiding principle calls for lawyers to accept personal moral responsibility for the consequencesof their professional acts. To satisfy this principle, lawyers' conduct needs consistent, disinterested, and


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generalizable foundations. If lawyers see themselves as officers of the court, they must accept greaterobligations to pursue justice. No longer should ethical analysis be short-circuited through appeals tosome idealized vision of the adversary process. Rather, attorneys need to consider the consequences oftheir advocacy against a realistic social backdrop in which not all interests are adequately represented.

Lawyers will, of course, differ over how to weigh the values at issue. And in some contexts, the need fora categorical rule may appropriately restrict individual attorneys' discretion. But any such rules mustsatisfy commonly accepted ethical principles, not just the restricted universe of client-centered concerns

underlying bar ethical codes.

A third guiding principle calls for equitable access to legal services. One of the public's central concernsabout lawyers and legal processes involves their expense and inaccessibility. To address those concerns,more efforts should focus on reducing the need for legal assistance, lowering the costs of servicesavailable, and expanding the reach of subsidized alternatives. Examples include proceduralsimplification, increased access to non-lawyers, expanded programs of pro-bono assistance, and morewidely distributed legal aid.

To make these changes plausible, a final guiding principle demands greater public accountability forprofessional regulation. Acting under their inherent power to regulate the practice of law, courts have

overvalued professional autonomy and have delegated too much of their own oversight responsibility tothe organized bar. The result has been a governance structure that fails to address legitimate publicconcerns, particularly those involving the cost and accessibility of legal services, the protection of non-client interests, and the sanctions for unethical conduct. All too often, bar ethical codes and enforcementcommittees have resolved conflicts between professional and societal objectives in favor of those doingthe resolving.

The term "profession" has its origins in the Latin root, "to profess" and in the European tradition ofrequiring members to declare their commitment to shared ideals. The American bar has maintained theform but lost the substance of that tradition. Entering lawyers may still profess to serve justice as officers

of the court, but that declaration has little moral content in contemporary practice. Efforts to revive aricher sense of professionalism have foundered on the lack of consensus about what those ideals shouldrequire and how to reconcile them with more worldly interests.

In this context, it makes sense to view professionalism not as a fixed ideal but rather as an ongoingstruggle. The problems facing lawyers involve not just public image, but also personal identity. Thechallenge is to work toward understandings of professional responsibility that are both more and lessdemanding. They must ask more than current codes and enforcement structures, but they must offer avision that also seems plausible in practice. Recent debates on professionalism have suffered from overlyambitious aspirations and overly limited initiatives.That mismatch is by no means inevitable. On matters of public interest not involving their own

regulation, lawyers have been crucial in bridging the distance between ideals and institutions. By turningsimilar energies inward, the bar may give more substantial content to its highest traditions.

Deborah Rhode is the Ernest W. McFarland Professor of Law at Stanford University. For a list ofpublications by Deborah Rhode, go tohttp://www.law.stanford.edu/faculty/rhode/.

Click herefor more ethics related articles.
http://www.scu.edu/ethics/publications/submitted/homepage.htmlhttp://www.law.stanford.edu/faculty/rhode/


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