A Panel Discussion of Deborah Rhode’s Book,
In the Interests of Justice: Reforming the Legal Profession

Convened by the Markkula Center for Applied Ethics at Santa Clara University on 17 January 2002

Panelists:
Ellen Pansky, of the law firm of Pansky & Markle, Los Angeles
http://www.panskymarkle.com/eap.htm
Margaret Russell, Associate Professor of Law, Santa Clara University
http://www.scu.edu/law/facultydirectory/facultydirectory_28.html
Alan Scheflin, Professor of Law, Santa Clara University
http://www.scu.edu/law/facultydirectory/facultydirectory_29.html
Gerald Uelmen, Professor of Law, Santa Clara University
http://itrs.scu.edu/instructors/uelmen/

With responses by
Deborah Rhode, Ernest W. McFarland Professor of Law, Stanford University
http://www.law.stanford.edu/faculty/rhode/

Moderator:
David Perry, Director of Ethics Programs, Markkula Center for Applied Ethics
http://home.earthlink.net/~davidlperry/mycv.htm

The following dialogue has been edited slightly from the original audio transcript, with the permission of the panelists:

David Perry: "I’m very pleased to welcome you to this year’s Markkula Ethics Center Lecture Series, which annually brings renowned scholars to Santa Clara University to share their insights in applied ethics with the campus and the wider community. This series is sponsored in part by a gift from New York Life Insurance Company in honor of William Regan III.

"Our featured author for the panel discussion today is Deborah Rhode, who is the Ernest W. McFarland Professor of Law at Stanford University, and director of its Keck Center on Legal Ethics and the Legal Profession. She’s authored, co-authored or edited nine books, including Legal Ethics, Ethics in Practice, and most recently the subject of our discussion, In the Interests of Justice: Reforming the Legal Profession. Professor Rhode is also currently chair of the ABA Commission on Women in the Profession, and previously served as president of the Association of American Law Schools, and senior counsel to minority members of the House Judiciary Committee during the Clinton impeachment hearings.

"Professor Rhode’s book examines a number of questions of vital interest to all of us: What is the ethical climate in the American legal profession today? How have American schools of law influenced that climate in their teaching of professional ethics? How does the profession tend to reinforce or undermine ethical practices? And, are educational and professional reforms needed? Now, I’m fairly certain that our panelists will not agree entirely with Deborah Rhode’s recommendations. But I trust that the provocative nature of many of her proposals, as well as the depth of her research and the comprehensiveness of her vision, will provide them and us with plenty of food for constructive thought.

"We’re very fortunate in addition to have recruited Deborah to have also gathered this august group of panelists to comment on her book: Ellen Pansky is an attorney with the firm of Panksy & Markle in South Pasadena. Her articles on legal ethics have appeared in South Texas Law Review, Women Lawyers Journal and The Professional Lawyer. She has served as president of the Association of Professional Responsibility Lawyers and chair of the Professional Responsibility and Ethics Committee of the L.A. County Bar Association. Margaret Russell is associate professor of law at Santa Clara University. She has chaired boards of directors for the ACLU of Northern California and the East Palo Alto Community Law Project. Her articles have been published in Michigan Law Review and a number of anthologies. (You’ll have to excuse me for being very brief with these introductions, I’m leaving out whole chunks of their lives and scholarly work here.) [For further information, use the web links under their names above.] Allen Scheflin is professor of law at Santa Clara U. He’s the author of Professional Ethics for California Attorneys and many other books and articles especially on law in psychology and psychiatry. Jerry Uelmen is professor of law at Santa Clara U. His articles have appeared in California Lawyer, Arizona State Law Journal, Georgetown Journal of Legal Ethics, and the Santa Clara Law Review. His law practice has ranged from prosecuting organized crime figured to defending famous clients like Daniel Ellsburg and O. J. Simpson.

"We'll begin with comments by panelist Ellen Pansky."

Ellen Pansky: "Thank you. It’s very nice to be here. I was once a state bar prosecutor, and worked for the California State Bar for seven and a half years. For the first five I was an actual trial prosecutor, and for the last two years I mostly represented the state bar in discipline cases before the California Supreme Court. For about the last seven years I have represented lawyers, for the most part in malpractice, state bar work, I’ve represented bar applicants and I’ve testified as a witness in legal malpractice proceedings on issues of standard appeal on legal ethics. So, my comments to you today come from the point of view of a practitioner. And I must say that in ten or fifteen minutes it’s not going to be possible for me to address all of the issues in the book, because it’s a very comprehensive treatise on the various ways in which our profession and the legal system can be reformed. So I am going to concentrate on the disciplinary system and the regulatory system in the broader sense.

"In California we have a very well-financed and well-organized disciplinary system. California is not an American Bar Association Model Rules state. So California has not adopted the Model Rules that most of us were tested on when we had to take the bar examination and took the multi-state ethics exam. California has adopted its own rules which differ in certain respects from the Model Rules, and therefore create something of a dilemma when we participate on a national scale or even an international scale in the discussion of the scope of attorney ethics. And the one overriding comment I have about Professor Rhode’s book is that it is tempting to draft bright-line ethics rules. It is very attractive to us to say we will establish the standard, and then if we demonstrate that a lawyer has fallen below the standard that lawyer will be disciplined or fined or sanctioned in some other way. The problem is it’s difficult to apply a bright-line test to a factual scenario that may or may not have been contemplated by the drafters of the rule.

"One recent example is a debate that is currently pending in two areas. One is multi-disciplinary practice, which is an area commented on in the book, where lawyers wish to enter into partnerships with non-lawyers and provide myriad services, some of which include legal services. Only one jurisdiction in the United States currently permits that sort of arrangement, that’s Washington D.C., and there is a very virulent debate going at the national level as to whether the profession should permit these types of activities. The concerns are: that other professions do not have the same ethical duty to preserve confidences that the legal profession has; the other professions don’t have the concerns about avoiding conflicts of interests that our profession has; and other professions don’t have the same duties of loyalty to clients that we have as lawyers. There is a segment of the lawyer population which believes that it will be the end of professionalism as we know it if we were to adopt multi-disciplinary practice. There is another faction which believes that it’s actually beneficial for the public for lawyers to provide these types of bundled services. And another section says it’s already being conducted by the accounting firms and others on the international stage, so if we do not take the opportunity to regulate conduct, that opportunity will pass us by.

"Similarly there is a whole debate about multi-jurisdictional practice. Should we have a national bar license? Should you be able to move from state to state if you practice in a certain area, if you practice federal law for example? The reason I raise these examples is I think they are perfect as illustrations of areas in which lawyers sincerely and genuinely believe that their perspective is the correct one. And yet there is disagreement among people who otherwise would be universally recognized as ethics experts. So, how do we reconcile the differing analyses and evaluations of mandatory ethical standards, when even the experts can’t agree?

"This happens frequently in the disciplinary context. You have a situation where a lawyer perhaps in a courtroom is confronted with a witness or a piece of evidence or a request by the judge, and the lawyer must make a decision at that moment. The lawyer may be completely favorably motivated, may believe that he or she is performing in accord with ethical standards, but after the fact the judge or the disciplinary board may conclude that the lawyer did not act properly. Another specific example: in California our rules provide that if a lawyer is going to represent multiple parties in a single matter, that constitutes a potential conflict of interest, even if at the beginning of the case and throughout the interests of the clients don’t ever actually conflict. So under the California rule, because a potential conflict is the same as an actual conflict for disclosure and waiver purposes, if a lawyer neglects to get a written waiver from the client prior to performing the services, that’s a violation of the rule. And all kinds of adverse consequences may flow from that.

"The ABA in rewriting the Model Rules has just now proposed a new rule requiring written consent. So if somebody practicing in another jurisdiction in an ABA model state does the same thing a California lawyer does, with no adverse consequences to the client in both cases, the California lawyer is subject to discipline where the lawyer from another state is not. Again, I’ve raised these illustrations to point out that while it is in one sense helpful to say, let’s adopt more specific discipline rules in classes, I don’t know that you will ever be able to adopt a set of rules which will cover ever possible scenario in order to provide lawyers with the kind of detailed analyses that we need.

"So what do we do instead? I think that education programs have been shown to have tremendous salutary effects. For example, the state bar instituted some years ago an in-house ethics program, and essentially every lawyer who goes through the state bar system who is found to have violated a rule is required to go to ‘ethics school.’ The recidivism rate for lawyers who attend ethics school is extremely low: I believe it’s lower than 5%. What does it show us? That when state bars punish people, disciplining them for ethical breaches, it is not having the same positive effect to the benefit of everyone (including the public and the profession) as simply having them go to a one-day class where they get 5 or 6 hours of education. So I think we should be looking more towards continuing education in situations like this where you have people available to answer questions from practitioners and students to give more guidance, rather than emphasizing the punishment side.

"I want to point out a couple of other things, underscored by what’s happening with Anderson and Enron, that are going to occupy a lot of our attention for quite a while. Yesterday when I was planning my remarks, I was going to point out to you that the reason why we only have about 10% of lawyers being disciplined by the state bars is that when you are actually at the state bar as a prosecutor, or a defending lawyer on the other side of the table, what you find is that the majority of the complaints are: the client is unhappy with the results, the client didn’t get enough money, it took too long, or the lawyer didn’t communicate promptly enough. The vast majority of the complaints are communication- and performance-oriented. A very small percentage concern dishonest conduct, misappropriation of funds, and that sort of thing. And the reason why, I submit to you, is because only a very small percentage of lawyers are actually dishonest, unethical, greedy, selfish people. We have those percentages of course, but it’s about the same as in every other profession.

"So what I was originally going to say to you is, ‘See, you have accountants who are doing bad things and destroying documents and hiding things from the government.’ But then this morning as I was driving to the airport, I heard that the accountant who was interviewed said, ‘Well, the lawyer told me to do it.’ So you know we’ll be interested to see how that breaks down. But what I submit to you is that while we do have problems in the legal profession, when it comes to the discipline system, we do have a very organized system now, at least in California. It’s very well funded: $29 million dollars annually for the disciplinary system. And what probably needs to be done in my view is to move more towards mediation to solve civil disputes as well as complaints against lawyers. Because what people really want is an opportunity to be heard, and if the lawyer is not acting as attentively, or even if a lawyer has acted negligently, much of the time what the client’s really looking for is an acknowledgment and an apology. And if we can put people into a mediation process where they have the opportunity to deal with one another face to face, I think that we may find that the public will be happier. They will feel that they are being given the opportunity to be heard and the appropriate acknowledgment if things didn’t go quite as planned at the beginning of the case, and we’ll have less pressure on the discipline system per say. Thank you."

Margaret Russell: "I want to thank the Ethics Center for inviting me to participate in this event. Let me relate a story from twenty years ago when Deborah Rhode was by Contracts professor. I don’t mean to stress the twenty years because I’m sure that neither of us would want to dwell on it. But I tell this really as a way of paying tribute to her when she was my professor in 1981-1982. What struck me at the time, and what I still remember today, was how seriously she took her role as the teacher, how troubled she was by the state of legal education, and how honest she was about relating her dissatisfaction with the traditional structure of reader education. She gave us a Contracts exam of about three questions, one of which we had the opportunity to prepare the answer to in advance. This gives you a chance to actually think about what you’re studying and to put your own thoughts together using your own powers of mind and self-control. It was a very profound moment for me as a first-year student, because I really thought that I had entered a system of legal education in which everything was working perfectly and the professors all believed in it. And even if they didn’t believe in it, they thought it was sort of humorous that it wasn’t working very well, but no one was really willing to take it on. And so Deborah at that time really demonstrated a great deal of honesty in expressing her dissatisfaction as an early law professor by saying things like, ‘Well, I didn’t really like Contracts very much when I was in law school.’ And you know there were really radical statements coming from our first-year Contracts professor. And so I wanted to thank her for doing that and also just to say how satisfying it is to see that she really hasn’t changed. Instead of letting her dissatisfaction grow dulled and softened by tenure and by success as a legal academic, she’s honed it into an essential feature of her works.

"I want to focus on legal education, the subject of chapter 7 of her book, which I highly recommend to everybody. I would especially recommend it to lawyers and law students, but I think that everyone who is interested in the legal profession and its problems would do well to read this book. I focus on the legal education section because unlike my SCU colleagues here and Professor Rhode, I’m not an ethics professor, I’m not a scholar of the legal profession, and I’m also not a practitioner, but I’m an educator. As a law professor and educator I spend a lot of time now observing the problems that she writes about very perceptively. So, what I want to do in this short period of time is basically to mention some of the criticisms that she mentions against legal education with which I agree, and then to ask her a series of questions which she didn’t address in terms of the problems of legal education. And I say this with all due respect knowing that, even in such a comprehensive book, there isn’t enough time to cover all of the solutions to legal education issues. But I’m very curious to hear her views on some of them.

"First of all, she makes a number of very humorous comments about the frustration that many of us feel about the quality of legal education. For one, I think it’s a quote from Fred Rodell, a former Yale law school professor who said, ‘There are only two things wrong with conventional law school teaching: one is style and the other is content’ [cited in Rhode, Interests of Justice, p. 196]. And she goes on from there to criticize the traditionally predominant law school approach of some combination of lectures and Socratic torture of students. Much of this is characterized by the notion of the following exchange, which he quotes in her book. The professor says, ‘Guess what I’m thinking?’ And the student sits there all semester trying to figure out, ‘What is the professor thinking, and how do I say it in order to get the merit badge of getting the right answer?’

"I have to say as a teacher in large lecture courses that even when I put forth my best effort it often turns out to be the quality and the nature of typical teaching. As she points out, this is characterized by overly authoritarian and competitive classroom dynamics—an atmosphere in which, as she says, ‘Never is heard an encouraging word, and thoughts remain cloudy all day.’ It’s a scramble for status. They’re combative classroom styles. There’s a sense among some students that they are just trying to get through law school so they can learn what they need to pass the bar in the six-week cram course for the bar.

"I would say in all honestly that this kind of reaction and this dissatisfaction is pretty widespread among law students. But the difference between Professor Rhode pointing it out and the rest of us, including students, is that she thinks that something can and should be done about it. She thinks that it is a tremendous waste of resources: of student time, of student energy, and of professorial energy, to spend quite so much time particularly in the first year and thereafter in large lecture courses creating an environment in which there is an arid, dry atmosphere of exchange of information from professor to student, with very little opportunity for interaction, almost no opportunity for reflection, and certainly no evaluation of student work that reflects anything that is that is truly connected to the kinds of cooperative and practical skills that they will exercise when they become lawyers. And I would agree with this.

"I think that as a teacher and as a student I have felt, even when I have had fantastic teachers in law school, a tremendous sense of frustration at the disjunction between what is going on in the classroom and what goals and dreams and concerns that students and professors bring into the classroom. Also of concern to me is the tremendous psychological and physical impact that this atmosphere has on our students. At her earlier talk today, Deborah mentioned that there’s a higher percentage of depression and mental illness among lawyers than other professionals. In the section of her book on legal education, she estimated that 20 to 40 percent of law students—even those entering with the same psychological profile of the public generally—leave law school with some psychological dysfunction such as depression, substance abuse, or various stress-related disorders. She notes that this percentage is not only unusually high, but is not matched by medical students, for example, who are usually thought to undergo probably the most stressful form of professional training possible. The percentages are lower among medical students.

"This is very troubling, and really links to the question of ethics in the legal profession, because it asks, What are we doing in law school to our students and to ourselves that not only fails to capture adequately the desires of those who come into law school to learn how to practice law in the interest of justice, but actually worsens the situation? Are we taking students and actually worsening their capacity to be ethical and effective lawyers? It’s very troubling given that six semesters or three years is a tremendous amount of time; it’s also really the only required time of legal training before we send them out into the profession.

"I also want to mention other aspects of the book on how to teach ethics in the curriculum, how to teach professional responsibility. Do you teach it pervasively, or is it adequately captured in a course? What was interesting to me about this book was the connection she made from just talking about a course in ethics or even ethical training, to the ethical treatment of students in law school by professors—that obviously has a lot to do with the ways that we train them. A couple of questions that I wanted to ask you that aren’t covered in this book have to do with the Association of American Law Schools of which you were president for one year. This is the pinnacle of achievement in terms of law school education, administration and leadership, and I was hoping that there would be some discussion of your experiences there at the AALS: What role does it play in actually effectuating educational reform? What role could it play? What were some of the dreams and goals you had going into the AALS in your presidential year? And what did you end up thinking about the prospects for educational reform?

"Also, since you are a law professor, and have been in legal academia for a long time, I was hoping you would say more about your experiences as a legal academic and your attempts at educational reform. This might mean you just have to write a ‘tell-all’ book on the side. But obviously, what professors do or think that we can do, has a lot to do with whether or not we are ever going to change this system that seems so dry and arid and difficult and ultimately ineffective for students. I guess my questions here are, what can law schools do, what can professors do to change the problems in legal education?

"And then finally a question I have been puzzling over ever since I participated in a symposium with Professor Rhode and other scholars in November at Fordham Law School in New York City, to honor her and talk about her book. Professor Monroe Freedman said at one point during the discussion that we premise legal education upon a lie to begin with in terms of educating students in furtherance of social justice and the public interest, because we are essentially encouraging them to lie on their applications about their interests in practicing law in the interest of justice in order to make a good impression to get in. At first I was just horrified to think that this might be true. But the more I thought about it the more I realized that there certainly is a large grain of truth in his remarks: the enormous incentive we give to applicants to achieve in every way other than serving the public in order to have the right scores to get in, and then simply to say in an essay, ‘Well, of course I want to help the world.’ We don’t pay attention to the fact that our reward system and admission system is really not structured in a way adequately to capture the people who really do take seriously the role of the legal profession to further justice. So, I wanted to ask you more about your thoughts about that and how we might, I guess, end the lie. That is where I would like to end, and thank you very much for being here."

Alan Scheflin: "I don’t think anybody would start with a proposition that law school is so perfect, that there is really nothing more to say about it. Or that the legal system has finally after several thousand years arrived at just the place we want it to be. In the world of criticisms of law schools and of the legal profession, I do truly believe that nobody has marshaled them more effectively, with more insight and less diatribe, than in the book that was offered by Professor Rhode. There is a great deal of food for thought; more than we can ever discuss here at this time.

"In the few minutes that I have, I want to start with a Zen koan, memorialized into a cartoon that I will quickly read to you. There is a game hunter who says the following: ‘I was being pursued by a starving and wounded lion one afternoon, so I decided to run with all due speed. I could have tried to shoot the beast, but at such close range it would have been a risky attempt. Suddenly I faced a cliff of about 100 feet, so I decided to climb down the grapevine which extended to the bottom. As I started down the grapevine, I spotted a second starving and wounded lion waiting for me below, and I also noticed the grapevine was wearing thin. I had to decide on a contingency plan. I decided to pick a grape and enjoy myself. After all, there are no simple solutions, only intelligent choices.’

"We are here to talk about what choices are intelligent and what choices are not. I want to talk about the choices that I believe there are differences about. For example, I would say almost the opposite of what Margaret said in terms of the Socratic method. Because of the time limitation I am going to jump in, attack and jump back, simply because I want to cover a couple of bases.

"First, Monroe Freedman was actually my mentor. In Contracts the first year we were dealing with the question of unconscionable clauses. He posed a problem and the class agreed that this particular clause would be unconscionable if it were put in a contract. And so we decided that you couldn’t put it in a contract. Then he asked, ‘Why not?’ We said because it was unconscionable, and he said ‘So what?’ The idea that there could be a decision that something did not meet a legal criterion, but may nevertheless have a purpose for advocacy, was a tremendous shock. I remember that day and my emotions. Monroe’s point was, if you put it in the contract and you lose, you’ve simply lost that provision. You gained nothing. But if you win, in other words, if the other side doesn’t challenge that clause, or you bargain that it will cost them a great deal of money to litigate that clause, then you’ve won. But is it ethical to put a provision in a contract that you think is unethical? I still wonder about that. I look for the bright-line rule, knowing there isn’t one about that. But the idea that you are your client’s champion seems to me is one that is tremendously important. I want to talk about how you train people to be champions and then what it means to be a champion.

"I loved the Socratic method as a law student. I don’t like it as a law professor. The reason I don’t like it is because I can’t get students to understand how important it is. And more and more that is becoming a problem in legal education. I have been cross-examined by lawyers who are incredibly vicious. I’ve been on the witness stand for several days, eight hours a day. I don’t think anything prepared me for that kind of attack more than the Socratic method did. It taught me how to be cool under fire. It taught me to think on my feet. It taught me to understand there is a difference between opinion and belief on the one hand, and knowledge on the other hand. It forced me to back up my judgments with facts, and with concepts that I could demonstrate. It was for me in my expert witnessing a very important form of training. I agree with the criticism, however, that it’s not the pinnacle of law school. But to remove it is I think to take away from students a tool that they need to have. Even if you don’t use the Socratic method as a way of questioning people, you must know how to use it to reason through documents and read statutes and put arguments together. It is a tool of precision—in analyzing and in learning how to ask cogent questions. Any task is made more difficult when you remove vital tools.

"What’s wrong with the Socratic Method in law school is first of all, it is too often an ego trip for faculty, and they misuse the Method in that way. Secondly, it is not accompanied by a form of gentleness that inspires the student to work hard at it. And that again is a misuse of the Method. And third, it is misused because it’s not taught; it’s just used. What we should be doing when using the Socratic Method is to teach students how to use the Socratic Method: not to make them just the victims of it, but rather to make them the beneficiaries of it, so they can learn how to write their own cross-examinations. And they can learn how to write their own responses to oral arguments, etc. I think we need to learn other skills as well, but we lost a tremendous amount in law school when we eliminated the Socratic Method as a form of teaching.

"Second, the idea of whom we represent and zealous advocacy. As I’ve traveled around the country, I’ve been a plaintiff, a defendant, a defense counsel, a fact witness, an expert witness, and a consultant. I’ve seen the law from all of those perspectives. From none of those perspectives have I seen a problem with lawyers being too zealous. The problem usually is they are not zealous enough. Half the complaints by clients to the state bar tend to be that "the lawyer did not pick up the phone and let me know what was going on in my case." The issue with zealousness, it seems to me, is one that is central to law school. If I’m doing a negotiation, I am still the lawyer for my client. If I’m doing a mediation, I am still the lawyer for my client. I am that client’s champion. I am that client’s mouthpiece—literally, the person who speaks for that client. Now, I don’t defend, I don’t think anyone defends, the idea that zealous representation means acting unethically or illegally. Where society chooses to put the line is what defines our role as lawyers.

"But for lawyers to make up their own minds that they’re going to act on the basis of some amorphous public interest seems to me poses the following dilemma: What if you have an office building, and on the second floor you have door number one and door number two. The lawyer in door number one always reveals confidences in cases where the client comes to you and says, ‘I am going to harm somebody.’ (The ABA Model Rule says that you may or may not reveal at your personal discretion.) Lawyer number one always discloses. Lawyer number two never discloses. I do not see how it is in the public interest to have a rule that sacrifices clients who go through the wrong door and get the lawyer who tells. If society wants to make it in the public interest to have lawyers for Enron and other clients reveal certain information, then pass a rule and tell us to do that. Beyond that, having several hundred thousand lawyers deciding for themselves what is or is not in the public interest is to betray the client, which surely must be against the public interest.

"Furthermore, there is a public interest in the client’s privacy, and in the client having a champion; somebody to go to and to say, ‘Here are my innermost thoughts, here is what I am thinking,’ and to know that those thoughts will be preserved. No confidentiality is absolute, and so I think clients should be given a ‘Miranda warning’ of what things we have an obligation to reveal. But I cannot conceive of a legal system in which zealous advocacy is replaced by doing what you think is in the public interest. Even if I think something is in the public interest, it is not my job to do it unless it benefits my client. If it becomes my job to only act in the public interest, who speaks for the client? I must now speak for the public, or at least my conception of it. Why is it not in the public interest to speak for the client?

"In 1969 in the District of Columbia, according to the Harvard Law Record of December 11, a headline read, ‘40 Confront Firm.’ At that time Ralph Nader and other people argued that various law firms were committing two different sins. One was the sin of accepting clients whose actions were perceived to be against the public interest, and the other was the sin of doing things for some clients that were perceived to be against the public interest. In one instance, a law firm was being picketed for having clients who had interests in South Africa and were favoring apartheid. In the other instance, a law firm was being picketed because they represented General Motors—not a particularly undesired client acting against the public interest. But what the lawyers had done for General Motors was negotiate a secret agreement with the Justice Department to allow GM to suppress the technology that would have produced gas that was cleaner and safety devices that would have better protected drivers, passengers, and pedestrians. Now, it seemed to me then and it does now, that the public interest should have had us picket the lawyers in the Justice Department who sold out to General Motors, or picket the businesses and government in South Africa who were favoring apartheid. But to go after the lawyers for effectively, ethically, and legally doing their jobs was the wrong target.

"In the Enron case, Other People’s Money cases, and the Savings and Loan cases, these massive financial frauds come up about once every decade or decade and a half. What goes wrong there? There are reporting requirements to the government; if the lawyers are not meeting those requirements, it’s a federal criminal offense. If you want to enact legislation saying that lawyers in these cases have to reveal to the government or another agency certain material, we can do that, and we have. We sacrifice privacy, we sacrifice the notion of a safe sanctity, but we accomplish some form of public good. Should we attack the lawyers who will represent Enron? Is it in the public interest that Enron be denied counsel? Or that it be denied zealous counsel?

"Monroe Freedman at my invitation was here on campus a couple of years ago, and I set up a panel which raised the following question. If you have a lawyer, a therapist, and a clergy person, and reveal the same thing to each one of them, what are their individual responsibilities with regard to potential disclosure? The person who represented the clergy said that the Catholic sanctuary is so strict that absolutely nothing can be revealed, that a presentation of a secret to a member of the clergy is absolutely confidential and cannot be revealed. So I said, suppose that you heard from a parishoner who was a member of the Central Intelligence Agency, who was very depressed and obviously bordering on psychosis, that in his view the human race was going to hell and there is no point in saving it, and that he had access to a neutron bomb that would destroy life as we knew it, and he was going to set it off. Should you reveal that information? I do not think it is the lawyer’s job to say the answer; it is society’s job to tell the lawyer what to do under those circumstances.

"Then Freedman said, ‘Let us suppose that you told the priest that every confessional in the United States was bugged, and therefore the CIA heard everything being said in confession in every church in the country. Would you reveal that information?’ I can give you my personal answer, but I am not hired as a lawyer for that personal answer. I am hired for another purpose. Ethical rules correctly mandate that I do not disobey the laws and that I do not disobey the ethical rules. Further, it is my job to persuade the client to do the right thing as I see it, and if I cannot handle the client’s decision, to get out of the case. But if the client is not pressuring me to do something that breaks a law or an ethical rule, then the client is entitled to representation. Monroe Friedman and Mike Tiger debated this issue in 1970 in the District of Columbia, and in a series of articles in the Legal Times in 1993 they debated it again. It seems to me that there are decisions that institutions make and decisions that lawyers make. The public interest is an institutional decision, but being a zealous advocate for my client whose only mouth may be mine is a role I think we should take on with pride. And when we look back at the best our profession has offered, we always turn to the lawyers who have adopted that model. Thank you."

Gerald Uelmen: "I picked up Deborah Rhode’s book with great expectations because I’m a longtime admirer of her work, and my expectations were not disappointed. This is a very balanced and comprehensive treatment of the problems of the legal profession. Since we get so many screeds that are not balanced, it’s a real pleasure to see someone recognize that there are arguments on both sides and take those arguments on and work them through in a very surgical fashion. In fact I wondered whether Deborah at some point in her life had contemplated becoming a surgeon, because she writes like a surgeon. She knows just how deep to cut, she knows how every organ is connected to every other organ, and proceeds with great precision to lay out the alternatives.

"My only hesitation in making this book required reading for every American law student is that half of them after reading this book would drop out of law school. If you contemplate joining the legal profession to have fun and to be happy, Deborah informs you that attorneys are four times more likely to be depressed than the public at large. They have the highest depression rate of any occupational group, and about 1/5 of them have a substance abuse problem, twice the rate of Americans in general.

"What if you came to law school for the intellectual challenge? You’re likely to be disappointed if you do litigation. Deborah warns you that you can look forward to ‘endless cycles of scut work . . . relentlessly repetitive and strangely unconnected to a dimly recollected purpose in choosing law.’

"If you came to law school to be loved and respected, forget it. Deborah cites surveys showing that the public perceives lawyers as greedy, arrogant and dishonest.

"If you came to law school to get rich, Deborah does hold out some hope that you can achieve that goal, but then explains why you will be miserable even when you are rich. Chapter two of this book, ‘Lawyers and Their Discontent,’ is a fabulous description, the best I’ve ever read of why so many lawyers are so unhappy with what they’re doing, and I would suggest you read it before you make your career choice in terms of whether you’re going to go to work for that big firm who’s offering you the big bucks or pursue a career in public interest law.

"I do have four critical comments, though, where I find myself in disagreement with Deborah’s analysis or her agenda. But they are relatively minor quibbles in terms of the overall approach of the book.

"First, her critique of the adversary model of zealous advocacy actually suggests a distinction between civil cases and criminal cases. At first I took some comfort in that because I’m a criminal lawyer and she’s not taking on my being a zealous advocate, just those lawyers who are suing people to collect money. Well I find that a very artificial distinction. I think that whether a case ends up as a civil case or a criminal case is often driven by factors that have little to do with justice or the underlying values at stake.

"There’s an excellent example that Deborah offers. Should you assert a statute of limitations on behalf of a client to defeat a cause of action which you know is just? She says, no problem doing that in a criminal case, but in a civil case you should think twice about doing that. Well I wouldn’t think twice in either event. I think that the reason that we have a statute of limitations that says there’s an absolute bar if your claim isn’t filed by such and such a date, is to protect all litigants from being put in an unfair position by delay up to a certain point, and if the delay crosses that point you have an absolute defense. And to give up that defense for a client, I think, is just as troublesome in a civil case as it would be in a criminal case.

"Second, Deborah’s treatment of client confidences suggests that lawyers should be free to make their own moral choices in a wider variety of circumstances, for lawyers to become whistleblowers. Of course there has been a vigorous debate within the ABA over when lawyers should blow the whistle on a client, when death or serious injury is threatened, when the client has used the services of the lawyer to perpetrate a fraud, or more broadly to mitigate any client fraud or wrongdoing. And I think Deborah is at the end of the spectrum that says, whenever your client has committed a fraud or done something wrong, you should speak up to mitigate it, and I think that would have two disastrous consequences. First of all, clients would no longer confide in their lawyers. I think one virtue of protecting client confidences is that lawyers learn a lot of the bad things that clients have done, so they can intervene, they can talk to their clients, counsel their clients, in ways that they never could if they didn’t hear about it, if they didn’t know about it. So I think we need to look at the impact on the flow of information into the lawyer’s ear when we hold out the prospect of lawyers becoming whistleblowers. Alan has already talked about the other problem: how lawyers would differ widely in using this power. One may feel morally obligated to blow the whistle where another would not, and I think many lawyers would use this inappropriately, just as many whistleblowers today use it inappropriately.

"Third, Deborah calls for a greater role of the public in professional regulation. In fact, that’s the kind of underlying theme of her book, but she never really says who truly represents the public interest. Is it elected politicians? Is it public interest organizations? Or is it the media? She documents how often the media get things wrong, but doesn’t talk about why the media get things wrong. I have an opinion about that. I think the media get it wrong because they suffer from the same ethical pitfalls as the legal profession, that is, greed, dishonesty, and arrogance. I am hesitant that this role of greater public participation in regulation of the profession would be a role eagerly taken up by the media. And I am concerned that the media will insert its own agenda in terms of the kind of legal profession that they want, and it may not accurately reflect the public welfare.

"My final comment relates to the diversity of the legal profession, which Deborah again recognizes but does not always reckon with. I have been struck over the years by what I think is an incontrovertible fact, that there is no Legal Profession: there are several legal professions that frequently have very little to do with one another. There was a wonderful explication of that published a number of years ago called "Chicago Lawyers," done by sociologists who studied lawyers in Chicago and came to the then-startling conclusion that there were two different groups that didn’t have anything to do with each other. They went to different law schools. They belonged to different social organizations. They never talked to each other. They never even met each other. The lawyers who represented big corporate clients in the big firms were a totally different culture than the lawyers who were out in the streets representing individual clients and individual cases. When you look at the legal profession in that way, you can see that these two groups are pushing the profession in entirely different directions.

"I thought Ellen’s point about the big issue of multidisciplinary practice is a great example because that’s the agenda only of the big megabucks buyer. It’s not the agenda of individuals. In fact, the agenda of the individual lawyers is pushing in a different direction. The big issue now is ‘unbundling’ legal services so that you can get partial representation to a client: act as a scrivener and just write up their agreement without taking on any broader professional responsibility to counsel the client or meet their broader needs. So we see these groups pushing the profession in two very different directions, and I think it’s because they really are two different professions. Occasionally when Deborah takes on the organized bar, it’s hard to tell which organized bar she’s talking about.

"But these critical comments should be weighed against the greater virtues of Deborah’s analysis: balance, conciseness, and comprehensiveness. This is a wonderful book. It should be widely read and widely discussed. Thank you."

David Perry: "Our panelists have not only been very insightful and erudite, they’ve also been very generous and self-restrained: none of them went over their allotted time, which leaves us plenty for Deborah to respond and then to allow some questions from the audience. So Deborah, feel free to rebut."

Deborah Rhode: "Well, I’ll just take a few minutes because so many insightful observations have been made. There’s no greater pleasure of course for an author than hearing what smart and thoughtful people think about something that they’ve labored on. And so I will comment, but then I want to open it up to you people who have dutifully listened to this panel go on about the book, and engage you in the conversation so that I don’t replicate entirely the sins that Peggy described. With respect to all of these comments, leaving aside the nice words for which I’m deeply grateful, I agree with much of what the critical observations have been. And so let me just endorse in general much of what has been said and just say where I think we have some differences.

"First of all, Ellen made a point about the limitations of bright-line rules, speaking from the ‘trenches’ from which she has a great deal of experience. And I of course agree with those limitations. It’s partly for that reason that one of the central arguments in the book is that lawyers need to take more personal responsibility for the consequences of their acts, and recognize that we can’t really legislate a lot of these issues. They have to be discretionary, and are inevitably going to be left to lawyers to do that. Also I’m a realist and in a context in which the other people who are making those bright-line rules—mainly the profession when it comes to ethics—have some self-interest. And to the extent that the profession allows legislatures to intervene, they too are not perfect decision-makers in this context. So I recognize that.

"Having acknowledged the point about the limitations, I also want to make a point that the book makes at probably tedious length about the fact that, where you have a system in which the profession has arrogated to itself the power to make so many of the rules, not surprisingly I think the rules are not entirely self-interested in some areas where the public has a strong vested interested in seeing more balanced results. And I do think it would be possible to get some better bright-line rules in a number of areas where you’re never going to get the bar to do it for you. And alas, of course you’re absolutely right that these are areas where the public interest is involved, and the public ought to be speaking. But part of the difficulty with the book (or part of the difficulty pointed out in the book) is the public isn’t really organized and doesn’t have the incentive to organize in a way to make its interests straightforwardly known and codified. And so we’re living in an imperfect system legislatively. And yes, it would be better a) if the courts would allow the legislatures to intervene more in areas, and b) if legislatures would get their act together and do it in context around disclosure regulation.

"But given the situation that we’re in, there are problems standing in the way of both of those solutions. And I think what one of the central unanswered questions of the book is how to really mobilize constituencies for reform within and outside the profession, to get better rules in some of the areas where a mandatory disclosure requirement in certain limited circumstances, where mandatory rules would be helpful—and we don’t have them yet.

"Secondly, Ellen made a point about the need, in the absence of rules that can adequately capture all the factors, for good educational programs. I certainly agree with that. But I will also say that there’s a lack of really good evaluations out there, so we don’t we know from a disinterested standpoint how effectively some of these educational programs indeed work. I’m a little skeptical that one day in an ‘ethics school’ is going to do the trick for a lot of the people who get caught up in the system, as if a lack of knowledge were really all that’s wrong there. It’s not just that they don’t know the rules, although that’s depressingly too often true, and legal education bears some responsibility for this. But it’s also the fact that the structural incentives in the system aren’t well calculated to make people live up to all of the rules, and that a one-day continuing legal education program or an ethics school course isn’t going to address adequately. My husband who is forced to take CLE classes comes back always with horror stories of what he’s had to sit through and how many members of the audience were balancing their checkbooks, reading their briefs, and otherwise tuning out. And of course all we’re doing by way of documentation there is taking attendance. Nobody’s actually assessing whether these programs have any practical effect on lawyers’ conduct.

"The professions that have actually done it have found no correlation between behavior in the world and attendance in these CLE programs, at least in the watered down form that they now are. So I think that before we totally embrace this as the solution we need to know a little bit more about what works and what doesn’t. I of course believe as an educator that education when done well can make a difference. And I have been both a perpetrator and a victim of CLE programs that are pretty good, and I’d like to think that they’ve made some difference in the world. I wouldn’t do what I do for a living if I didn’t think it helped someone. I think we need to be realistic about how much you can do in the absence of good structural forms with accountability.

"Finally, I agree totally with the need for cheaper, more effective ways to resolve the kinds of disputes that don’t really involve violations of ethics rules but just involve miscommunication, excessive charges, delay, and so forth. We need to set up those systems; unfortunately almost no states make them mandatory; some states don’t even have them. In fact only about half the states have low-cost ways of resolving grievances with lawyers. I think if we were seriously committed to the public interest, we would find a better way to design the system to be responsive to the things that don’t rise to the level of disciplinary violations—but also are just never going to get pursued as malpractice complaints because they’re too costly and misconduct isn’t as serious—where if people would sit down together and work the thing out, they could come up with a better resolution than what they’re now getting from the disciplinary system.

"On Peggy’s comments about legal education: Well, boy, if all lawyers were like Peggy and all law professors were that thoughtful about the system in which they participate, we wouldn’t be having the problems that she aptly described. It always fills me with great pride to see a former student survivor of my classes doing as much thoughtful good work as she is, and especially when they say something nice about my role as a teacher. It’s kind of what gets you through the day some days.

"I think if I were to give my version of Fred Rodell’s comment about the two things wrong, style and content, I would also add structure. And here I think really part of the problem is that we are both over- and under-preparing people for the tasks that lawyers do. Three years and passage of the bar exam is not necessary for some of the kinds of routine form-processing work that lawyers have asserted a monopoly over in this country. It’s done more effectively and cheaper by people with somewhat less training in other countries. If we’re serious about increasing access to legal services, we ought to train people in a less expensive way to do some of that kind of work.

"By the same token, we’re under-preparing a lot of people for the skills they actually need in practice. Peggy mentioned a number of the interpersonal and collaborative skills, as well as topics like high-end finance. We don’t do nearly enough with interpersonal programs that teach people how to deal with individuals who are in trouble, or teach them the information-technology, financial stuff that people actually need in the real world in the high-stakes side of things. So, I think we need to move away from this one-size-fits-all model of legal education that doesn’t work very well—move away from what is in fact a very low-cost way of delivering legal education: the big lecture course. Socratic or otherwise, we know from educational literature it’s not a very effective way of teaching the skills that lawyers need in practice. We should think about ways to deliver our own educational resources in a more cost-effective way.

"Part of the reason why I think we haven’t done that, and why as educators we have failed to educate ourselves very well about what works and isn’t working, is what I quoted in the book from the New York Times Magazine story a while back that was a critical view of the profession, done by one of Stanford’s own graduates (which accounts for why the New York Times Magazine was thinking about legal education). The author quoted an anonymous source, ‘We all recognize that there are some things wrong with this. But frankly, it isn’t changing because the system works pretty well for us.’

"Alas, Peggy, if you want my analysis of the Association of American Law Schools and why it hasn’t been at the forefront of educational reform efforts, there it is, right? The system does work pretty well for us. Legal academics are the highest paid academics; we even eclipse medical school professors. We have a pretty good life, all things considered, we control much of the structure, and we’re unwilling to seriously contemplate changes that will get in the way of our control over the process, even as we recognize that it isn’t a very effective way of teaching. And its reward structures are skewed.

"The other problem, and I think your invocation of Monroe Freedman’s comments about the admissions system, captures another central dynamic of why it’s been so hard to get good reform around legal education and why law faculty aren’t motivated to do it. The other problem is, although I think a lot of legal scholars and educators really don’t think the system is working very well for the students, they don’t even think it’s working all that well for them, because it’s forcing them to spend all their time writing scholarly tomes that nobody’s going to read, instead of doing things that might in fact more effectively educate students. Or do public interest pro bono work that would involve their students. Or write practical things that would be of use to folks like Ellen who are worried about these issues in practice. It’s because the current structural rewards systems aren’t well set up to encourage that kind of alternative use of time.

"U.S. News and World Report is a prime offender in why it is that admissions systems don’t pay more attention not only to what people say in the law school essay but to demonstrated commitment to public service. U.S. News ranks schools on how high the median entering LSAT scores are, reputational rankings that are deeply flawed, and what the placement record is. So we reward law schools that get students well-paying jobs. We reward schools who take people with high LSAT scores. We don’t even ask in the U.S. News ranking how well the schools do with respect to pro bono and public interest placement, which is one reason why Stanford does so well in these rankings even though it has a pathetic ethics program and public interest/public service program. So we’re not asking the right questions, we’re not getting the right information out to potential law school grads, and we have no structural way of rating schools around other things that might be relevant. We don’t hold legal education accountable in the same way we don’t hold the legal profession accountable.

"Well, next on my list is zealous advocacy. I agree with some of the comments that were made, and disagree with others. Alan, you ended your statement by saying that advocacy reflects much that is best in our profession, and I agree with that. Zealous advocacy for unpopular causes or those individuals who otherwise and in many other societies wouldn’t get anything remotely resembling due process is among the things we should be proudest of in our profession. I’ve got to say, though, it’s also the worst of our profession. It’s what got us tobacco litigation, the savings and loan mess, over-representation of the rich, and under-representation of everyone else—these things occur in a system that pays lip service to zealous advocacy but then doesn’t provide resources to people who can’t afford it. So you end up with a skewed model in which you don't have two zealous advocates: in many cases you have at best one, and often that one is for the person not necessarily who has the merits on their side but who has money on their side, and that leads to some skewing in obvious fashion.

"The alternative I agree is not ideally that you would have lawyers imposing their own view of the public interest on the profession generally. But in the absence of rules that are more public-interest oriented than the ones we’ve now got, it would help somewhat. I also think that you’re inevitably going to end up in a situation in which the rules can’t speak adequately to all the factual circumstances that are relevant. People of good will and good judgement will disagree about what’s required, and lawyers will have to exercise some individual discretion. And areas like confidentiality I think are those illustrations. We obviously need some level of protection for client confidences. The system couldn’t function if everyone thought that what they said to their lawyer or in the priest’s confessional was taped.

"On the other hand, there are circumstances clearly where you could maintain a general expectation of privacy and confidentiality, but build in more exceptions for the cases in which you really do want lawyers to come forward. The book gives some classic illustrations where lawyers didn’t say things and should have, like the case where you know that your client has confessed to a crime and another individual is facing life imprisonment. That’s not even a circumstance where the bar now requires disclosure. Or instances where health and safety interests are clearly at stake: you know your client is putting out a kidney dialysis machine that’s unsafe. They don’t seem particularly hard cases, but they’re not ones that are covered in the rules that we currently have, partly because it’s lawyers drafting those rules and lawyers are very worried about malpractice liability if they impose more stringent disclosure obligations.

"Finally, on Jerry’s comments about the ‘gloom and doom’ aspects of the book that might dissuade law students from becoming members of the profession. That is one way of looking at it. Once I was in a ladies room after giving a lecture in which I talked about some of the same issues. Someone not realizing that I was nearby said, ‘Well, that was just a bunch of gloom and doom! Why should we finish law school if that’s what is awaiting us?’ And I thought to myself, you’ve missed a moment to give your sunny optimistic side. On the other hand, people are thinking about these issues in a way that they weren’t when I was in law school. We didn’t have a course on legal ethics. I don’t remember these issues being on the agenda. Nobody talked about diversity in the legal profession. So it’s to our credit that more of this is being done here, that we have panels and centers that are worried about these issues. We’re trying to learn from other disciplines. And that fills me with hope that the situation is going to be somewhat better and we will collectively leave the profession in somewhat better spirits in which we found it.

"And I agree completely with your diagnosis that it’s not just a profession anymore, in fact it’s multiple professions. We haven’t come to terms with that, either in terms of the way we structure legal education or the way we do regulation. We need a more diverse system that can take account of the great range of different interests and needs among the public and among educators generally, and ask some questions about whether we wouldn’t be better moving toward a different way of structuring delivery of legal services and regulations that wasn’t so trapped by this notion that ‘we’re all one big happy family.’ In fact, we’re not. Nor are we particularly happy as individuals, and we need to come to terms with the structural underpinnings of that.

"So having said that, I think that it’s wonderful when you can get a group of people together, especially in an organized way like this program does, to think about these issues from an interdisciplinary perspective. And I thank very much all the panelists for taking the time out of their schedules to meet together to think about how we might address some of these issues in a deeper and more thoughtful way."

Ellen Pansky: "My only follow-up comment, although I’d like to sit here for two hours and debate some of these points, is that I think it would be worthwhile to form a task force, maybe of law students including random ones who haven’t been trained at all, and take an issue, one of the rules that you think needs to be revised, and let’s see if we can’t reach consensus on how it would be better drafted. Because my sense remains that it is a very difficult process. One that strikes me concerns the client who confesses to you in confidence that actually she committed the crime. Maybe if you make it not as onerous a crime, it takes some of the pressure off. But I’d like to see whether we can also get consensus from people who are not lawyers, because my suspicion is that we still will have difficulties.

"And just one other point. There was a very prominent lawyer in Los Angeles who did family law, who was accused of having engaged in either sexual harassment or other undue influence on female clients whom he was representing in divorce cases. And the legislature actually passed a provision of the business and professional code mandating that the state bar adopt disciplinary rules, which the state bar somewhat reluctantly did. But the interesting thing is that I don’t think anybody has ever been disciplined, or at least there isn’t any public discipline under that section. But I only say that because I think it’s a difficult process. As well-meaning as we all are, it doesn’t necessarily mean that we can actually produce a product that’s going to be effective, though not for lack of trying."

Deborah Rhode: "I agree totally."

Questions and comments from the audience:

Kirk Hanson (Ethics Center): "It seems to me that your discussion never really got to the following issues. Number one, can we screen at the admissions point for people who have a commitment to the public interest? Secondly, what really would influence or enhance whatever that motive is during their time in law school? Pro bono experience? A professional responsibility course? I‘m sympathetic to the concern that you tell people a lie by putting that question on the application form. At the Stanford Business school we added an ethics question to the application form, and we got the most wonderful statements about how ethical they want to be and how they want to make business their way of changing the world for ethical good. And I just wondered whether they meant what they said. On the other hand we signal to people that it’s okay to talk about ethics during their two years at the business school. That was a good thing, and we did get more discussions about it."

Deborah Rhode: "Well, here’s what I would do, in fact what I did do: Stanford for many years had a diversity admit system in which they parceled out applicants in the middle range to individual faculty members to make recommendations. So we all got 50 files. We took some people. The admissions people admitted some who were clear cases on the numbers, and rejected people who were clear cases on the numbers. And from this middle range you actually got to put up five people out of your fifty whom you thought needed a second look and make a pitch for them. And some of those people got in and some of them didn’t. It always struck me that it gave me license to act on my values in a way that was probably not fair to 40 of the 50 files that came in, because the guy who was heading the fraternity’s social committee didn’t do very well against the woman who had volunteered at the domestic violence shelter or had a taken a year off to go feed the hungry in Bangladesh. But I look for not just what they said in their personal essays but actually what they had done. And I think if you wanted to see demonstrated commitment, business schools want people to be out there in the world with a little experience before they come in. I think law schools would be a lot better if we did that, if we looked at what people had done, and we could make that more of a part of the screening process.

"You do of course worry that you are creating structural incentives that may not capture the range of people’s full motivations. I say this now as a fond aunt whose niece is applying to Stanford. And I offered as a consolation prize—because although she’s good, no one’s a shoo-in these days—I said, ‘Well, you can come to the summer program at Stanford. They have a lot of good things that you’re interested in.’ And her mother looked at me and said, ‘No, I think this summer she really needs to do Habitat for Humanity.’ And it brought home to me that that’s what needed to get on this college application to round her out. And she has volunteered at a soup kitchen. She’s at one of these prep schools that tells them what they need to do to get into better schools. I said, ‘So, would you be doing this if you didn’t have to do it?’ And she said, ‘Yeah, I really like it.’ So there you are.

"I don’t think there are any perfect proxies. I think we can do more, and I think we could signal more. And I have this vain hope that even the people who go into it for the wrong reasons might find, as she did, that it’s a wonderful thing to do. I know for me, working in a legal aid clinic was a really transforming, positive experience, which is why I believe doing it before law school, and encouraging people to do it while they’re in law school or business school is so important. Because I think people can get hooked on the personal rewards that come from public service no matter why they’re doing it. So I think law schools could and should do more, but obviously it’s not the full answer.

Alan Scheflin: "An historical note: In 1970, the American Bar Association decided that they would give a character test to every entering first-year law student."

Deborah Rhode: "Watergate fallout, right? Was it a multiple choice test?"

Alan Scheflin: "Well, it was called ‘preventive disbarment.’ And what ultimately sank the idea was first of all you cannot write a test of character. Of course the anti-lawyer people argued that bad moral character is the trait you need to be a great lawyer. And so eventually the committee went away. There are certain things you cannot test for. I don’t think they ever tried to revive that old notion again."

Deborah Rhode: "Well, I once wrote a long tome called Moral Character as a Professional Credential that was very critical of the administration of the bar’s moral character requirement. I mentioned there that it turns out to be very difficult to predict moral behavior, even based on past moral behavior, and even in areas that are closely aligned. You can’t accurately predict who will cheat in French from who cheats in math. It’s highly contextual.

"One of the most sobering illustrations of this was when they administered a test to graduates of a theological school and inmates of the Illinois State Penitentiary, they found that they agreed completely; the scores were absolutely the same. Of course the difference was not in personal understandings of right and wrong, but what the structural incentives were that created them in practice, and the differential temptations and rewards to which they were exposed. So I don’t think pen-and-paper tests will do it. I’m also deeply skeptical that the kinds of questions that are asked as part of the bar screening process will do much of anything. But I do think that it’s possible to look for some evidence of demonstrated commitment to public interest. If we made that a priority and part of our admissions process, we’d get a somewhat different looking class than if we asked who got a 99.9 percentile on the LSAT.

Alan Scheflin: "But that’s the point where I start being concerned. Why is it not in the public interest to be the richest, most successful corporate lawyer in the United States? Or to be the best tobacco industry lawyer in the United States? To win every one of your cases? To be the finest jury persuader? It is not that I disfavor the idea of the public interest. I disfavor academic institutions requiring people to have, or lie about having, certain value judgments depending on what political faction is in power at the time. I do not know any person who is going to say, ‘Well, I don’t want to serve the public interest; I’m here to harm the public interest.’ It therefore is an abstract concept I cannot understand unless put into concrete situations. I can understand training people to be the best lawyers they can be, with the best advocacy skills, the best mediation skills, the best negotiation skills, the best listening skills, and so on. But what they choose to do with those skills is not, and should not be, my job. To decide to admit a law student because he or she wants to help the homeless, and to reject a student who wants to represent corporate America, to me is discriminatory, and against my conception of the public interest. We must be equally fearful of value judgment imperatives whether they come from the left or the right."

Deborah Rhode: "Well, just so that I’m clear, I’m not suggesting that we would weed out corporate lawyers. I think corporate lawyers ought to make a pro bono contribution. In fact, we require it. We make it aspirational. I’m all for training people to be the best that they can be. But I will point out to you, as the book does, that the current method of admission is not demonstrably effective in doing it. We’re making discriminations based on test scores that have no correlation, educational experts tell us, with performance and practice. And we haven’t even done the basics to try to see whether a lot of the things we use—GPA, LSAT performance—capture the range of skills that make for the very best lawyers around the dimensions that you just mentioned, which I agree are relevant. And in fact the current methods exclude racial and ethnic minorities, which should give us great pause. And they also exclude people who have exhibited in their past not just a pubic service commitment but an ability to overcome challenges, people who were raised under difficult circumstances etc. So I’m all for diversity in admissions broadly conceived, and I’m not suggesting that ideology should be the basis for it. But I think we don’t take a broad enough range of applicant characteristics into consideration right now to accomplish what we say we want, which is to get people to be effective lawyers and to have them provide some contribution to the public interest broadly conceived when they get out."

Gerald Uelmen: "I’m as worried about screening and getting students who are idealistic and want to do good as I am about turning off the ones that we do get. I did an exercise when I taught legal ethics a number of years ago, giving back to the students at the end of the semester their application, and making them read what they said about why they came to law school and what they wanted to do. I asked them to analyze how that had changed and what changed it. And what changed was the fact that they now had $80,000 worth of debt that they didn’t have three years before; this contributes to the kind of cynicism that pervades so much of what we do in the classroom."

Deborah Rhode: "Well, that’s really true. That debt burden is an enormous problem and one that we as educators bear some responsibility for. We tend to offload it on everybody else as not our problem. But in point of fact we’ve created a structure that ends up foreclosing opportunities for students to do what they really want to do. And we endlessly reinforce skepticism and cynicism and don’t reward public interest contribution. We reward how well they do in the class ranking and placement opportunities, and students pick up the subtext as well as the text. In most instances we marginalize legal ethics instruction. It’s one required course, and it doesn’t pervade the curriculum. Other professors don’t take it seriously, they don’t assign material on it, they don’t grade those questions on the exam. Students pick up on what’s important and not important in the world. We’re not doing an adequate job of really reinforcing the ideals that they entered law school with.

"Getting individuals who want a comfortable income to think that pro bono and public service work can be an important part of their career, even if they’re in private-sector jobs, is really key. I have a big study about to come out to say whether different programs in law school make a difference in terms of people’s willingness to do that kind of work later. We could also figure out how to deliver legal education to some folks in a less expensive way, so they’re not saddled with the kind of large debt that forecloses the types of jobs that sent them to law school in the first place. And finally, I think that students need to revise their income expectations. A lot of students come in wanting a Wall Street salary, and it’s a real shock to them to find out that the jobs they could get in legal services, criminal defense or prosecutorial work pay only a small fraction of that. Indeed, it isn’t student debt that predicts job choice, it’s the gap between public- and private-sector salaries. At the very least, lawyers might demand that they’re high-paying professional jobs at least give them credit for doing pro bono work. That’s a way of accommodating some forms of public service that they can’t afford to do as a full-time livelihood."

[A question from the audience concerned the impact of feminist ethics on legal education.]

Deborah Rhode: "I remember a number of years ago when Carol Gilligan’s book first came out, In a Different Voice, which was about how men and women view ethical questions very differently. To make a long story short, women were more interested in care, connection and compassion, while men were more interested in competition, ranking and individual rights. Gilligan argued for ways to change our thinking about ethical questions to align more with women’s point of view.

"I remember being in a group of left-progressives when we first read this book in draft. One of the old lefties in the group said, ‘You know, a few years ago we used to call this socialism. Now you’re calling it feminism. Fine, if you think a new "ism" is going to make a difference.’ Well, socialism wasn’t very effectively packaged. My view is, use whatever terms are helpful, though there’s been a cottage industry of critiques of Gilligan’s methodology suggesting that the ‘pinks and blues’ way of dividing up the world is not all that accurate.

"But I do think that revaluing some of the values that have traditionally been associated with women, including care-taking, is central to rethinking what’s wrong with the profession. I’ve written a number of theses about gender and professional roles, suggesting that feminist approaches to the adversary system, access to justice, and the training of lawyers are really part of the solution here. I’m sure that my own work has been very much informed by the work that I’ve read around ethics issues. I know it’s affected how I thought in class. I also know that the change in the demographics in law school has made for a much healthier place for all students, and not just for women students, having people with a different visions, values, and experiences. I don’t think it’s rooted in the genes. But I do think women bring different concerns and perspectives both as professors and as students, that it’s made for a better law school environment, and that it will make for a better profession."

Alan Scheflin: "Your earlier comments about admission, which I agree with, got me to think about something that I found terribly disturbing in your book. What is law school all about? Why are we here? What is it we are supposed to do? If the idea was to train a certain type of lawyer, such as people to go into public interest, that makes some sense to me, and would also help me define admission requirements. But I don’t see anything in law school that’s defensible at this point, because we’re certainly not training people to practice. We’re not training them to think like a lawyer. They get it by osmosis at best; there currently is no structured way of presenting that skill. There are only two law schools in the country that teach persuasion, which you would think every law school should teach. And so, what are we doing? Is there any skill other than sustained memorization that we can boast about in law school and take pride in?"

Deborah Rhode: "I think that if you ask practicing lawyers, what do you think is important in practice, and did you get this schooling in law school, you’d get some interesting results. We don’t fail totally on every dimension. We do teach a certain kind of analytic thinking, we do something to hone writing skills, we make people sort of vaguely familiar with legal research methods. We do to some extent give them some additional verbal skills and so forth. We don’t do any of those things very well, and none of them as well as if we were clearer about what our admissions standards were.

"But we do a little bit of all of the above, and most importantly and to our best credit, we give them some respect for the rule of law. And in societies that don’t have that as some sort of basic predicate, we see what happens. So training a group of talented and high achieving people—because law continues to attract those—to have some real commitment to procedural fairness is a good thing, and we give them some skills that they need. And we’re starting to do better around areas like problem solving, alternative dispute resolution, and clinical education and skills frame. Certainly better than when I was in law school, where everything was pretty much Socratic method.

"But we’re not doing any of it nearly well enough. Part of it is because we’re not educated in how to do it, we don’t screen when we hire faculty for those capacities. We want a form of delivery that’s pretty cheap, because truthfully we’re cash cows for many universities; we make our money by teaching in big lecture courses rather than giving individualized feedback or doing things that we know educationally would be sounder. So there are some real problems with the way that we’re doing it, and I don’t know if this makes me any more or less radical than I was in my youth, but I used to do a lot of calling for fundamental social transformation, which I still call for. But meanwhile I’m willing to settle for incremental adjustments where I can get them. If you get just a few people ready to push certain kinds of educational innovations, I’m willing to do all I can. So I think you have to look at what works and where your law school is able and willing to make some differences, and try to get a critical mass together to agree with you both locally and nationally."

David Perry: "I’d like to follow up on the intriguing question earlier on feminist ethics. There has been an interesting debate among feminist ethicists on how to weigh care and compassion in a relationship as opposed to the traditional male emphasis in moral philosophy on rights or certain ways of construing rights and justice. But one of the interesting perspectives that some feminists have brought to that debate is that women should not assume that care and compassion ought to be the paramount thing, that they ought to overlook rights or not worry about rights and justice, but that you have to have both. You have to concern yourself with both.

"Helga Kuhse wrote a very interesting book on care in the context of the nursing profession and the approaches to care that she thought were problematic [Caring: Nurses, Women and Ethics, Blackwell 1997]. One of the things she found helpful was to think about what it means to really treat an individual as someone deserving of respect—with their autonomy, respecting their rights. Well it can include their welfare, because part of what it means to act as an autonomous agent is to promote one’s welfare, at least on occasion. That’s very interesting.

"So it may be that feminists who are pursuing issues of justice and rights—which of course are very closely aligned to what lawyers teach and do—what feminists are going to do with those is going to be different from what Rawlsians have done with them, where it’s more of an abstract group of contracting folks, where’s there’s less connection with the ‘thick’ desires, interests, needs and talents of particular individuals. But I have no idea whether that’s having any effect on the teaching of ethics in law schools. I would think that it may be a trend, that the more you get feminists like that teaching law, there may be a shift in the ways in which rights and justice are construed."

Deborah Rhode: "Yes. Although I think that’s interesting, and your example brings it home, I don’t think the dichotomy holds up very well. I mean, not only do you need both approaches, but you can always recast one framework in terms of the other to get to the same end. That is, you can say, ‘Our concern ought to be care as the dominant value,’ but care for whom? Do I care for clients as opposed to third-party interests? Which turns out to be the same issue if you view it through a rights lens: to what extent should I prefer the individual rights of my client to the individual rights of non-represented third parties? So you know, you can take the same issue, run it through the lens, and end up at the same place or at completely different places."

David Perry: "But you can imagine caring for someone in a way that excluded respect for their rights, that would be a completely paternalistic form of care. Folks like Kuhse are arguing that in order to really care for autonomous, rational adults, you can’t ignore their wishes.

"In closing, I’m very grateful to Deborah Rhode and our panelists, who provided very careful reflections on some vitally important issues in ethics and law in our society and the profession."