Expanding the Role of Ethics in Legal Education
From an Ethics at Noon presentation given at Santa Clara University on Jan. 17, 2002, part of the 2001-2002 Markkula Ethics Center Lecture Series. This article draws on the first chapter of Deborah Rhode's recently published book, In the Interests of Justice: Reforming the Legal Profession (Oxford University Press, 2000).
If a medievalist were drawing a map of contemporary debates on legal scholarship, "professionalism" would be at the edge of the earth, marked off with lions and tigers and warnings to venture no further. What Robert Gordon described as declension rhetoric (the decline of profession into business) is a swamp of soggy lamentations, war-weary cliches and mixed metaphors far worse than the one I just constructed.
For a considerable period I shared Monroe Friedman's view that the only solution was a professionalism non-proliferation treaty. But as so often happens in our line of work, one thing led to another. And despite my best instincts of intellectual self-respect, I found myself lapsing into the genre.
What set me off was a mix of frustration as a policy critic and curiosity as a cultural anthropologist about the mismatch between how the public views the problems of the legal profession and how the profession views itself.
Lawyers belong to a profession permanently in decline. Or so it appears from the chronic laments by critics within and outside the bar. If ever there was a true fall from grace it must have occurred quite early in the profession's history, since similar comments have been traced for centuries.
Given this historical context, it is tempting to discount the recent chorus of complaints about the profession as familiar variations on familiar themes. But while the novelty of recent critiques should not be overstated, their significance should not be undervalued. Discontent with legal practice is increasingly pervasive and is driven by structural factors that are widening the distance between professional ideals and professional practice. Yet what is most disheartening about the profession's current plight is the gap between the bar's and the public's perception of the problem, and the failure of both groups to confront its underlying causes and the need for structural solutions.
Let me say a word about the problem from the public perspective and the problem from the profession's perspective. What the public doesn't like about lawyers could fill a lengthy list. Although the rank order of grievances shifts somewhat over time, certain continuities persist. Recent survey data, together with the critiques and caricatures that most often surface in popular culture, raise two primary concerns. The first involves character defects associated with lawyers. Three-fifths of Americans think lawyers are greedy, and only one-fifth think either "honest and ethical" or "caring and compassionate" describe most lawyers. These views are well captured in anti-lawyer humor, quips such as "a lawyer is a learned gentleman who rescues your estate from your enemies and keeps it for himself," or "How do you know when a lawyer is lying? His lips are moving."
A second set of complaints involves problems in the advocate's role and problems in the adversary system for which lawyers are held responsible. Two-thirds of surveyed Americans believe that attorneys are no longer "seekers of justice," and a quarter believe that they inappropriately "manipulate the legal system without regard to right or wrong." Everyone hears tales of disputes that are too big for courts, disputes that are too small, and disputes that should never have been disputes at all. At one end of the spectrum are the legal stegosauri that can amble on for decades, leaving in their paths endless paper trails and exorbitant legal bills. At the other extreme are the "trivial pursuits": football fans suing referees, suitors suing dates, or beauty contestants suing each other. About half of surveyed individuals blame lawyers for filing too many lawsuits, and three quarters believe that the United States has too many lawyers. The most mean-spirited anti-lawyer humor endlessly replays these themes. "Why does New Jersey have so many toxic waste dumps and California have so many lawyers? New Jersey got first choice."
From the public's vantage, problems in the legal system frequently are of the profession's own making. Members of the bar working as lobbyists, legislators and judges have created a structure that seems far too complex, expensive, and open to abuse. As newspaper columnist Art Buchwald once put it, "It isn't the bad lawyers who are screwing up the justice system in this country--it's the good lawyers."
Problems with the Problem as the Public Sees It
For many lawyers, these public perceptions have been a source of longstanding frustration. When asked to identify the most important problems facing the profession, lawyers consistently have put public image and credibility at the top of the list. Yet when confronted with specific complaints, attorneys' response typically has alternated between irritation and resignation. From their vantage, popular perceptions seem unfair and uninformed, largely a result of bad press. But the bar's own commissioned research suggests a more 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 basis. Moreover, 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 their information 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 of the adverse press coverage is consistent with people's personal experience. The problem, in short, is more with the reality of lawyering than its image.
Yet finding solutions is more difficult than the public typically acknowledges. A large part of popular dislike 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 the profession are often unpleasant: divorce, bankruptcies, personal injuries, or contractual disputes. This unpleasantness 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 become scapegoats 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 enterprise and 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 surveyed individuals 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 would hate doctors, too, if every time you went in the hospital, your doctor was trying to take your appendix out, 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 which lawyers played a substantially different role. In fact, Americans are ambivalent. Much of what people dislike 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 most negative traits is lawyers' willingness to manipulate the system on behalf of clients without regard to right 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 the fact that lawyers are for sale and that law is accessible only to those who can afford it. But Americans also dislike efforts to remedy that imbalance. Justice is what we proclaim on courthouse entrances, not in redistributive 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 is a poor person with a lawyer."
Although part of the public's discontent with lawyers reflects misplaced or displaced frustrations, not all of 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 structures, and overly broad protections of the professional monopoly, the public does not appear ambivalent, and its concerns do not seem unwarranted.
In short, on some important issues of professional regulation, the problem is not so much that the public is uninformed or undecided, but rather that it is unorganized and uninvolved. For the vast majority of Americans, such issues are not a priority. Although egregious abuses occasionally galvanize the public into action, non-lawyers seldom have sufficient incentives to organize around questions involving regulation 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 would choose another career if they had the decision to make over, and three-quarters would not want their children to become lawyers. The symptoms of professional malaise are also reflected in health-related difficulties. An estimated one-third of American attorneys suffer from depression or from alcohol or drug addiction--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 common themes 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," which captures 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 are more likely to lie than in earlier eras. A sense of decline also appears in prominent critiques of professional culture, most prominent The Lost Lawyer by Yale Law School Dean Anthony Kronman. To borrow 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. Increases in 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 the relaxation of bar restrictions on competition within and across professions, also have intensified economic pressures in private practice, and have led to increased instability in lawyer-client relationships. As a consequence attorneys face intense pressure to serve clients short-term interests at the expense of other values.
Part of the dishonesty, incivility, and acrimony that lawyers find troubling in current practice seems driven by these profit dynamics. As Richard Posner points out, competitive markets are "no fun for most sellers." 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 lawyers intensifies. Incoming associates are wined and dined, then worked to death. Most lawyers now bill over 200 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 becoming the norm rather than the exception.
What loses out is not just leisure. It is also the opportunities for pro-bono service, civic involvement, and breadth of experience that build professional judgment and sustain a professional culture. So too, almost half of American attorneys feel that they don't have enough time for their families.
For women, who still assume about 70 percent of the domestic responsibilities in the average dual career household, the puritan-ethic-run-amok poses special difficulties. Recent reports on women's status in law firms describe, in deadening detail, the sweatshop schedules for many full-time attorneys and the glass ceilings 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 in order 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 of these 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 recollected purpose in choosing law."
This lack of larger purpose accounts for the greatest gap between expectations and experience among American lawyers. In the ABA's mid-l990s survey of career satisfaction, less than a fifth of surveyed attorneys felt that legal practice had "very well" lived up to their expectations in contributing to the social good. 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 highly selective historical memory--what Marc Galanter terms "the golden age of legal nostalgia." In fact, on certain measures of professionalism, not everything is getting worse. For some, we don't know what once it was--for example, public service and pro-bono work. For others, such as diversity and professional ethics education, the problems are clearly getting better.
It does not follow, however, that the current sense of disquiet is inappropriate or unimportant. The problems rather are that the bar's descriptions are selective and simplistic and their prescriptions are superficial and occasionally sophomoric.
The driving force of much of what lawyers dislike, but also very much like, about legal practice is money. This is an awkward fact the bar is reluctant to face. There are occasional suggestions that lawyers should rise above their baser instincts, but this approach, which theorist Stanley Fish describes as "just say no to greed," appears to have fallen somewhat short.
Although lawyers often acknowledge that money is part of the problem, they generally manage to place responsibility 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. In fact, there is plenty of blame to go around. Much evidence suggests that both groups overvalue income as a source of satisfaction. In private practice, too much emphasis is put on salaries at the expense of other values.
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 to exercise moral independence within their professional roles. Rather, their preeminent ethical obligation is fidelity to client interests. Over the last century, the bar's codes of conduct have progressively narrowed the moral discretion that lawyers are expected to exercise once they have accepted representation. The assumption underpinning bar ethical codes is that the most effective way to discover truth and preserve rights is through an adversarial process in which lawyers have "undivided fidelity to each client's interests as the client perceives them." This assumption remains plausible only if all interests have comparable access to information and legal representation. Such conditions seldom prevail in the world that most lawyers encounter. The result is a dispiriting disjunction between current norms and traditional aspirations.
A final problem, similarly unacknowledged in professionalism debates, involves the tension between professional autonomy and public respect. While many practitioners resent the level of popular animosity toward 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 public interest, 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 of the public interest and the structure of self-regulation. Yet studies of these regulatory processes uniformly find serious flaws in their responsiveness to non-client interests and to ordinary consumer grievances. As long as lawyers resist greater public accountability, they are unlikely to win greater public confidence.
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 and wishful exhortation that dominate current debates.
Although this is not the occasion for a full-scale blueprint of that alternative vision, certain guiding principles bear emphasis. These involve diversity within the profession, moral responsibilities of lawyers, access 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, substantive specialty, 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. Our current one-size-fits-all model of legal education and professional regulation badly needs revision; it needs more diverse regulatory and credentialing processes than ABA-approved ethical codes, admission and disciplinary structures.
In a profession that is sharply divided and scarcely disinterested, current codes end up reflecting too high a 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 associations like 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 ethics committees 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 equal opportunity initiatives and more flexible workplace cultures with greater attention to quality of life issues. Lawyers have long been leaders in the national struggle for equal opportunity. The challenge remaining 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 consequences of their professional acts. To satisfy this principle, lawyers' conduct needs consistent, disinterested, and generalizable foundations. If lawyers see themselves as officers of the court, they must accept greater obligations to pursue justice. No longer should ethical analysis be short-circuited through appeals to some idealized vision of the adversary process. Rather, attorneys need to consider the consequences of their 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 for a categorical rule may appropriately restrict individual attorneys' discretion. But any such rules must satisfy 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 concerns about 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 services available, and expanding the reach of subsidized alternatives. Examples include procedural simplification, increased access to non-lawyers, expanded programs of pro-bono assistance, and more widely distributed legal aid.
To make these changes plausible, a final guiding principle demands greater public accountability for professional 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 to the organized bar. The result has been a governance structure that fails to address legitimate public concerns, 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 enforcement committees have resolved conflicts between professional and societal objectives in favor of those doing the resolving.
The term "profession" has its origins in the Latin root, "to profess" and in the European tradition of requiring members to declare their commitment to shared ideals. The American bar has maintained the form 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 a richer sense of professionalism have foundered on the lack of consensus about what those ideals should require 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 ongoing struggle. The problems facing lawyers involve not just public image, but also personal identity. The challenge is to work toward understandings of professional responsibility that are both more and less demanding. They must ask more than current codes and enforcement structures, but they must offer a vision that also seems plausible in practice. Recent debates on professionalism have suffered from overly ambitious 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 turning similar 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 of publications by Deborah Rhode, go to http://www.law.stanford.edu/faculty/rhode/.
Jan 17, 2002
From the Center's Blog
A teaser episode, featuring: YOU!
A little teaser episode for the upcoming Big Q Podcast, coming at you from the Markkula Center for Applied Ethics at Santa Clara University. Featuring: YOU! Hear what students at Santa Clara think about ethics and get updated on the details of the show!