Are There Big Ideas In Legal Ethics?

Of course, there are. But are there big ideas that go some place?

This question is prompted by the death of Jeffrey O'Connell, who with Robert Keeton "invented" no-fault auto insurance. Other examples of big ideas in law that actually had consequences are Charles Reich's article THE NEW PROPERTY and Catherine McKinnon's work on sexual harrassment.

The recognition of a constitutional privacy right is another big idea but I don't know to whom in particular we should give credit. Probably many. 

But has there ever been a big idea, or even a medium idea, that "rocked" the world of lawyer regulation? That made more than small, incremental changes?  Or is this a subject that will only develop inch by inch? And if so, is that something we should regret?

Comments

[Andrew Perlman]

Great question, Stephen.

The answer depends on how we define "idea." For example, the idea of a self-regulated bar is hugely important and has shaped quite a bit of what we call the law of lawyering. But I'm not sure that's an "idea" or just an important development. Either way, I don't think we can give "credit" to anyone for the concept.

Another possible answer might be the "idea" of having a code of conduct. Sharswood and Hoffman typically get some credit here, at least in the U.S.

Other big ideas relate to the debates about the lawyer's role in an adversarial system. Namely, to what extent should lawyers pursue their clients' ends as far as the law allows? There are a number of people who have contributed a lot to that debate, including co-bloggers Monroe Freedman and, more recently, Brad Wendel. I think that debate influences a lot of the law of lawyering, at least indirectly.

In any event, I'm curious to hear what other people think about the "big ideas" in our field.

(As an aside, shouldn't Brandeis get a lot of credit for the "privacy" concept in constitutional law?)

[Andrew Perlman]

Also, here's a post by Brad from a number of years ago that asked for canonical works in PR: http://legalethicsforum.typepad.com/blog/2006/10/canonical_works.html

Here's another that may be useful in thinking through possible answers: http://prawfsblawg.blogs.com/prawfsblawg/2006/10/research_canons_11.html

[David Cameron Carr]

In my little corner of the legal ethics world, the Big Idea was the Clark Commission Report that came out in 1970. Formally titled "Problems and Recommendations in Disciplinary Enforcement", its unequivocal opening statement rang like a cannon shot "After three years of studying lawyer discipline, this committee must report the existence of a scandalous situation that requires the immediate attention of the profession. With few exceptions, the prevailing attitude of lawyers toward disciplinary enforcement ranges from apathy to outright hostility. Disciplinary enforcement is practically non-existent in many jurisdictions; practices and procedures are antiquated; many disciplinary agencies have little power against malefactors." It started a wave of reform that continues to this day, albeit a wave that has, at least in the California Republic, has gone far beyond what is truly needed for public protection. A very big idea.

[David Cameron Carr]

Here a link to the Clark Commission Report:
http://www.americanbar.org/content/dam/aba/migrated/cpr/reports/Clark_Report.authcheckdam.pdf

[A Reader]

Daniel Markovits's book, "A Modern Legal Ethics: Adversary Advocacy in a Democratic Age" is, to my mind, more than an incremental step. It made me think we can drop the E from ASE (adversary system excuse).

[Mike Frisch]

I agree with David's observation concerning the Clark Commission.

To me, the big idea is that lawyers have been able to institutionalize their ability to make, interpret and enforce the rules that govern their behavior.
The work of the Clark Commission made that possible.

[Richard Painter]

My vote is for Jeffrey O'Connell not only in tort law but in legal ethics. The bar steadfastly opposed his no-fault insurance proposals out of self-interest, casting serious doubt on our ability impartially to define appropriate legal rules governing any area of commerce, including our own. O'Connell knew that many fellow lawyers were against him, but he soldiered on for the cause he believed in.

Second place goes to a now discredited lawyer, John Edwards of North Carolina. As a United States Senator he stood up to the organized bar in 2002 and introduced in Congress a law that mandates federal regulation of a large and powerful segment of the bar (securities lawyers). The days of relying almost exclusively on state regulation based on the ABA Model Rules are over.

[Monroe Freedman]

A Reader: Please read the review of Markovits's book, Misunderstanding Lawyers' Ethics, 108 Mich. L. Rev. 924 (2010).

Markovits is coming to Hofstra on April 17 to debate the substance of his book with me.

[John Steele]

My sense is that our discipline is inherently conservative and suits a Burkean mindset. I suppose that doesn't favor "big ideas."

[A Reader]

Mr. Freedman: Thank you, I did read your review some time ago. I'm a public defender and I have never agonized about my viciousness or believed that what I do is evil. But PDs' minds do get roiled about, say, undermining the truthful statements of witnesses, or presenting evidence we reasonably believe (but do not know) is false (and roiled, not so much about the 'morality' of that, but about the acting ability it takes to do it). Saying, that's-my-role or I-don't-really-know-the-truth has never been, to me anyway, intellectually honest or satisfying. So when I read Markovits's ideas about negative capability and fidelity, I have to say it struck me as profound insight. Like great literary or social criticism that makes you see a book or social practice in a new light, his book made me completely rethink what I do. It made me want to be more negatively capable (i.e., reserving judgment, having an open mind) and to speak for and advocate for my clients in higher fidelity (fidelity to THEIR claims and assertions).

[Monroe Freedman]

As explained at p. 937 of the review, Markovits's "profound insights" about the lawyer's role simply reiterate what I began saying in 1975 and 1990, and Abbe Smith began saying in 1993. He manages to make them appear original by omitting any citation to them.