ILEC4: Pearce and Wald on relational self-interest and legal practice

Several LEFers are here at Stanford for the Fourth International Legal Ethics Conference, and I hope they'll post some impressions of, and reactions to, the conversations that have been occurring here.  (To ratchet up the peer pressure, I'll call them out: Brad, Alice, John, and Renee.)  I want to give a plug to a wonderful panel devoted to a new paper by Russ Pearce and Eli Wald seeking to recapture a concept of self-interest as relational, rather than autonomous, as applied to the lawyer's work.  Russ and Eli began with the question, "Why does the public no longer look to lawyers for leadership?"  They trace a move in the broader society from relational self-interest (e.g., "What's good for GM is good for America.") to autonomous self-interest.  From the right, folks such as Milton Friedman have taught that there is no public good apart from the aggregation of autonomous self-interest, and from the left, discussions of relational self-interest have been dismissed as masking power disparities.  Russ and Eli believe that the legal profession has bought into this mindset, and the law reflects this mindset.  If the profession is devoted to the facilitation of autonomous self-interest, a leadership role in society is nonsensical.

Russ and Eli argue that leading critiques of professional ideology fall short.  William Simon's reliance on justice understood as legal merit doesn't help much because the law itself is grounded in autonomous self-interest.  David Luban's reliance on common morality doesn't help much because common morality, at least in the U.S., is also grounded in autonomous self-interest.  Fortunately, David and Bill were part of the panel, and they were able to push back a bit.  I was particularly intrigued by David's response; he focused on the work that "relational self-interest" is doing in the paper, wondering if it is more than a slogan.  He pointed out that sometimes what is good for you is actually bad for me.

We should all read this paper when it comes out.  I think it's an even bigger and more radical project than Eli and Russ might think.  Usually legal ethics theory is trying to close the gap between strains of professional ideology and the client's long-term interests and/or public interest (e.g., Enron) or between strains of professional ideology and the rule of law (e.g., the torture memos) in cases where the gaps are readily apparent.  Eli and Russ face a challenge in that the gap they seek to close is not acknowledged as a gap by society at large or by the law itself, both of which, as they say, have bought into the autonomous self-interest paradigm.  I think (though they might disagree) that they are making truth claims about the nature of the human person and about the ontological reality of the human community.  In any event, this is important work that should find a large audience.

Comments

[Monroe Freedman]

Why, in practical terms, is it important work? And among whom should it receive a larger audience? (Not rhetorical questions.)

[John Steele]

As has been my reaction to papers in this vein, I wonder if the paper fully takes into account all the duties that already run from lawyers to non-clients and all the ways that good lawyers incorporate into their legal advice the social and legal duties running from their clients to others in society. I also wondered if there really has been such a drop-off in the role of lawyers as leaders.

[Alice Woolley]

Monroe,

I'm not sure what you mean here by "in practical terms". I don't think Eli and Russ's paper is orientated towards immediate practical application. On the other hand, scholarly consideration of the appropriate mind-set for lawyers (and clients) in acting within a system of laws can be elucidating. If one were to suggest (and I'm not sure that you are) that it isn't because it's practical application is radical or not-immediate, I think one can undermine the whole scholarly enterprise. Which may be fine (although I'm obviously unlikely to see it that way), except that it might also push legal ethics back to unreflectiveness or reactionary responses, neither of which is desirable.

To answer your questions though, who should read Eli and Russ's paper? I was at the session as well, and I would say that anyone who wants to think about whether the Friedman-esque conception of individual decision-making has not only corrupted the functioning of the economy (see Krugman, Paul), but has also corrupted aspects of the lawyer-client relationship, should do so. They might not agree with Eli and Russ's conclusions - I am not sure if I do, and I'm not even sure that I felt I obtained a satisfactory understanding of what they mean by relational self-interest. But I think the fundamental project of the article, which is to try and construct a richer understanding of what lawyers do, but without abandoning the central norms of the democratic system and its individualistic impulses is important.

You might also be interested that one of the questions asked of the panelists was how rights intersect with their idea, and I think it is something that they acknowledged needed some consideration (although we were running out of time, so I may be just imagining that).

Alice

[Monroe Freedman]

Thank you, Alice.

This looks to me like more about replacing suspension bridges with bridges hanging from sky hooks. (I'm looking forward to an article about how aircraft would have to be rerouted to avoid the sky hook cables.)

Your last paragraph suggests, for example, that the authors haven't even thought about whether their proposal could be accomplished without a constitutional amendment, and without informing clients at the time the lawyer is retained that the client will not be receiving what clients currently expect in the representation.

Incidentally, I don't see this as undermining the whole scholarly enterprise. There's a reason that "ivory tower" and "stench of the lamp" are generally regarded as pejoratives. There's much of practical importance that can be written about improving the ethical rules. See, e.g., the recent amendment to permit divulgence of confidences to save innocent human life (good), and the recent amendment to allow screening (bad).

[rob vischer]

I think Alice is on the right track in articulating why, based on the panel presentations (but without having seen the actual draft yet), I believe that this is an important paper deserving a wide audience. One key move in much modern thinking is to assume that "self-interest" is in tension with "relational." Any thoughtful efforts to spur folks to reflect more deeply and critically on that assumption is important, in my view.

[Monroe Freedman]

In a free society, self interest (sometimes called individual autonomy and dignity) is always in tension with relational interests (formerly called communitarian interests). I, too, look forward to reading the paper, and learning whether it says anything that the communitarians haven't said before.

However, I wonder whether your emphasis on the importance of reflecting more deeply and critically about the subject of the paper is a concession that it has no identifiable practical importance to the field of lawyers' ethics.

[Russell Pearce]

Thank you all for weighing in. Sorry we didn't comment sooner but we've been catching up w/life post-ILEC. We expect to circulate a revised draft within a few months and look forward to hearing from all of you. Thanks again, Eli and Russ