Legal Ethics Forum

Proposed Advertising Rules in New York

New York is considering some rather dramatic new restrictions on lawyer advertising, including a provision that appears to be like the oft-criticized 30 day moratorium rule in Florida that the United States Supreme Court upheld a few years ago.  You can find more details here.  There is also a helpful story in the New York Law Journal here, but it's subscriber access only.

Illinois to require reporting of pro bono work

"The Supreme Court of Illinois ordered Wednesday that lawyers in this state must report how many hours they spend helping poor clients every year."  They're hoping that lawyers will be loathe to report a zero.

The [Proposed] UC-Riverside Law School: More of the Same, Only Better Than Average

UC-Riverside has updated its proposal for a first-tier law school.  (nod to Leiter's Law School Reports; commentary at Volokh)  What struck me upon reading it was the lack of variety, innovation, diversity, or experimentation in the proposal.  (True, the school proposes to have several specialty areas, but at page 39 the proposal concedes that the interests of the faculty ultimately drive a school's reputation in specialty areas.)  Most of the proposal is a generic description of schools already in the top tier.  It seems that under the current approach, as effectively mandated by the AALS, ABA, and USN&WR, only one type of law school is worth pursuing.

One small comment about whether or not we need another UC law school: many people use the statistic of lawyers/population to show that, compared to other nations, the USA already has too many lawyers.  I've always wondered about lawyers/GNP.  Does anyone know where that can be found?

Sarah Redfield on Diversity in the Legal Profession

[[Although our blog focuses on legal ethics, we also explore larger issues relating to the legal profession.  Today we're featuring some observations on diversity in the profession by Sarah Redfield  (Franklin Pierce; visiting at McGeorge), who presented at the California State Bar's Spring Summit.  Her slides are terrific, so please click on them to make them full-size. (Unfortunately, I was unable to separate the slides below the break from the following paragraphs.)  If this topic interests you, you will want to see Professor Redfield's full slide set.  Her email address is [email protected]]]

A few notes on diversity.

In Grutter, the Supreme Court wrote:   “Access to legal education (and thus the legal profession) must be inclusive of talented and qualified individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.”  And the Court also indicated that “race-conscious admissions policies must be limited in time,” suggesting a 25-year time frame.

This time frame and this goal seem unattainable without substantial change in the approach by which students are educated P16, selected for law school, supported in law school, and prepared for the profession. 

The practicing bar now stands at just about 90% Caucasian.  By contrast, in the population, Caucasians are about 75% (2000 Census) and are declining in proportion to other ethnic groups, particularly Hispanics.  For one example, 45% of all children under age 5 are minority, with the Hispanic population accounting for ½ population growth.  Of course these numbers vary in different parts of the country.

The legal profession is disproportionate to the population and likely to remain so.  As the ABA has observed “the proportion of minorities in the legal profession is not likely to attain parity with that in the general population in the foreseeable future.”  The legal profession will thus continue to lag behind other professions in terms of minority representation, second lowest only to civil engineers. 

This and That (6/14/06)

"A candidate for the Kentucky Supreme Court is challenging ethics rules regarding judicial races."     . . . .    A judge in the San Francisco Bay Area has been admonished for ex parte contacts with lawyers and for making "sarcastic, demeaning and belittling comments to attorneys and litigants appearing before him."    . . . .    The Stevens & Lee law firm reached outside to hire a General Counsel for the firm itself: Peter Glenn, the former law dean at Dickinson.  More and more firms are hiring general counsel and some firms are conducting outside searches.    . . . .    Legal Week looks at efforts to diversify the legal profession in the UK.

On Zeal

We’ll be talking about zeal for the next few days, with Anita Bernstein’s The Zeal Shortage as our focal point.  Here are some thoughts to get us started.

Zeal is hard to define, but for Professor Bernstein it includes “enthusiasm, energy, and benevolent effort,” and is negated by boredom, indifference, and detachment (109).  It is a disposition (an “aspect or attitude”) that, in the context of an agency relation, “makes the agent’s relationship to the principal more focused, fervid, and intense.”  (112)

Professor Bernstein is pro-zeal.  She thinks it ranks with care and loyalty among lawyerly virtues (105), but gets a bad press in legal ethics circles.  People confuse zeal with zealotry, meaning too-aggressive lawyering (110), she thinks, and this is wrong:  Zeal is to zealotry as faith is to fanaticism.  It would not, for example, compel a lawyer to whitewash or justify torture. (113)

So far I am willing to go with Professor Bernstein.  (Though I note that defined this way it would seem to be perfectly cogent to demand zealous judging, a notion that cuts against common usage and the understanding a lot of people have of the judicial role, though Cf John Noonan’s  excellent Persons and Masks of the Law.)  Her article is a nice counterweight to hand-wringing over a lost Arcadia of practice that in all likelihood never existed. (Cf 117)  That is most welcome.

But Professor Bernstein also thinks there is a zeal shortage, in school and in practice, and I do not think that is right.  I will start here and then note a few other points on which I differ from what I see as the thrust of Professor Bernstein’s argument.

As a conceptual matter, it is fine to distinguish zeal from zealotry, and thus to distinguish table-pounding cretins from engaged advocates, but to say there is too little zeal presumes that one knows how much there should be and, in the context of a general discussion of legal ethics, that there is some at least approximate level of zeal that should be displayed by all lawyers.

I do not find this baseline in Professor Bernstein’s article.  I don’t fault her for that, though, because I do not think such a baseline exists.  Zeal can be good or bad.  It can generate both type one errors (excessive identification with clients and a concomitant loss in the ability to provide disinterested advice) and type two (excessive detachment leading to misapprehension of a client’s interests, or to incompetence).

As a disposition, zeal necessarily must fit with the general personality traits of individual lawyers.  Some lawyers are too timid, others too boisterous.  Some have too little confidence in their skills, others too much.  Different degrees of engagement with different types of clients will produce different interactions with different personality types.  I therefore doubt there is anything generalizable to say about dispositions among people who share only a license.  That an M&A partner at Wachtell and a PD in Bakersfield are both “lawyers” says only that the term conceals more than it reveals.

At  a practical level, assuming one could derive the ideal zeal baseline, I doubt there is too little of it in practice.  If I can be forgiven for gross anecdotalism, most lawyers I know find a way to construct a narrative for their matters that allows them to engage with the matter to a reasonable extent.  Defense attorneys may decide they are upholding rights as against overreaching and overconfident prosecutors; civil litigators tell different stories.  I suspect the associates at Sullivan & Cromwell who have lived Microsoft their whole lives have deeply internalized a free-market frame for what they are doing.  (Me, too.) Transactional lawyers may be fully satisfied with solving intricate problems.

This may not be the level of zeal Professor Bernstein favors, but to me it seems adequate for most practical purposes. One can find a matter boring and repetitive and still bring to it energy and care.  One can find a matter exciting and engaging and, precisely because of that excitement and engagement, can make mistakes that harm clients. 

What is needed is a fit between an individual lawyer’s temperament and the types of problems he or she works on. We can’t teach people what that fit is, and neither can the ABA.  We can tell them it is important to figure out, but they have to figure it out for themselves.

So while I agree that there is a lot of boredom and tedium in practice, and that this can lead to bored and disengaged people (120-21), I do not think boredom evinces a lack of zeal in any sense relevant to careful lawyering. Just as zeal does not imply illegality, boredom does not imply incompetence. 

I would also note that, even purely at the level of disposition, sympathetic engagement with a client can be a double-edged sword.  If one keeps representing factually guilty violent offenders, for example, who lose over and over again, it is probably a good idea not to get too bound up in their circumstances, because the high probability of recurring defeat (and concomitant harm to clients and their families) could lead to depression and burnout every bit as easily as excessive detachment. 

Another double-edge to zeal is that the sort of framing that allows one to view the factually guilty rapist as a victim of coercive interrogation practice can lead to practice that is socially suboptimal even if optimal for the individual case.  Novel theories of medical malpractice liability can lead to defensive medical practices that make people worse off.  Law reform efforts can hurt those they seek to help.  (On the issue generally, see Judge Posner's assessment of Justice Brennan--111 Harv. L. Rev. 9 (1997).)  It may be that one can argue that social effects are not a lawyer's problem--only the case is--but that argument needs to be made on its own.  It is not entailed by zeal. 

As to legal education, although I think it is right that there is something of an inverse relation between length of practice experience and eliteness of school (114), I do not see an inverse relation between traditional methods of education and zeal.  As to scholarship, a very high fraction of work is fairly explicitly advocacy scholarship. Neutrality is not our problem.

We do have a normative preference for a higher ratio of analysis to emotion on any given question than our students bring us, but as I read Professor Bernstein the ability to analyze all sides of a question disinterestedly is not inconsistent with zeal.  One can engage with a flawed side, but it is strategically important to spot the flaws.  If our students came to us as windowless Leibnizian monads, we probably would emphasize the role of affect in reason.  Our problem is the reverse, so we do the reverse.

I also do not see a correlation between zeal and pro bono which Professor Bernstein conjectures might exist. (121)  Indeed, I find the pro bono discussion in tension with the discussion of zeal as a sympathetic disposition.

People like different things.  If antitrust or patent litigation is what excites you, then what commonly counts as pro bono might not.  There is no point in pretending that people will suddenly find habitability disputes or collection disputes interesting if what really fires them up is prosecuting bioscience patents, and certainly not just because some combination of the ABA and the academy tells them they should care more. Lawyers are busy, and I don’t blame anyone for choosing to spend the few spare hours they have with family or in some other non-law manner.

So if one is pro-zeal, I would think one would favor lawyers pursuing their interests rather than someone else’s.  True sentiment can’t be forced; people should do what they like.  If that means representing poor people, more power to them.  If not, there is nothing wrong with that.  A license to practice law is not a mandate to adopt the ABA’s preferences, or those of any segment of the academy.  We should be worried if it ever becomes one.

But I don't want to end on a down note, because I enjoyed the article and welcome a chance to talk about practice at a more practical level.  We are in a service business, as our students will be.  The sympathetic engagement Professor Bernstein discusses is an important part of that business.

DM

Monroe H. Freedman, Inadvertent Disclosure: A Brief Response

[Legal ethics pioneer, Professor Monroe Freedman, was kind of enough to submit a response to my recent article on inadvertent disclosures.  Professor Freedman's comments appear below, and my reply appears in the post that follows his comments.]

Professor Andrew Perlman has written a thoughtful article on the problem of the inadvertent disclosure of what might be claimed to be privileged information.  In the course of the article, however, he does not do justice to my position on the issue, nor to my concerns with values other than zealous representation.

At the outset of his article,[1] Professor Perlman uses me as an exemplar of "the zealous advocacy model" of lawyers' ethics. He describes this as a "monistic" view (772), and suggests that I fail to "draw on a wider range of values." (770). His pluralistic list includes "justice, morality, professionalism, consumer protection, consistency with other law, and ... reduction of contracting costs." (770).

That criticism is wrong in one respect and ironic in another.

First, the article of mine that Professor Perlman refers to relies principally on four ethical values, not one.[2]  The first value I cite is not zeal, but "the search for truth."[3]  (This is particularly galling because, when I argue for client confidentiality, I am regularly accused of an indifference to the search for truth.) "Also devalued" by compelled disclosure, I wrote, is zealous representation. And yet another value that I relied upon is client confidences under MR 1.6; that is, the lawyer is expressly forbidden to reveal information relating to the representation without the client's consent. The fourth value is discussed below.

The irony is that neither truth nor confidentiality is included among Professor Perlman's listing of a "wider range of values."[4]

Near the end of his article, Professor Perlman says, "The problem is that Freedman and Smith do not explain why the rules should reflect a nearly exclusive concern for zealous advocacy." (789). This seriously over-simplifies both our position and our analysis. Our emphasis on zeal (along with other values, including confidentiality) is in a context that is set in the Preface of the book: "We argue that lawyers' ethics is rooted in the Bill of Rights and in the autonomy and dignity of the individual." It is "[f]rom this perspective [that] we analyze the fundamental issues of lawyers' ethics." As I summarized this view a while ago:

"In a free society ... we lawyers act in the interests of justice not by acting as a self-appointed moral elite, but by serving our clients zealously within the rule of law. We act in the interests of justice by counseling our clients about the moral as well as the legal consequences of what they want to do. And we act in the interests of justice by using all means that are lawful and reasonably available to help our clients to advance and to protect their interests as the clients, after proper counseling, perceive their interests to be. In short, working within the rule of law in our constitutionalized adversary system, we enhance our clients' autonomy as free citizens in a free society. That is how lawyers act in the interests of justice."[5]

That passage emphasizes a fourth, and critical, value that I included in the article on inadvertent disclosure -- client autonomy. That is, the ultimate decision on whether to give up the smoking-gun document should not be the lawyer's, but the client's. It is, after all, the client's case, the client's life, and the client's rights as a free citizen in a free society that we are talking about.

---

[1] Perlman, The Case of Inadvertent Disclosures, 13 Geo. Mason L. Rev. 767, 769-70 (2005).

[2] Freedman, The Errant Fax, Legal Times (Jan. 23, 1995).

[3] Not until more than twenty pages later does Professor Perlman mention, in a footnote, this first concern of mine, that "an obligation to return an inadvertent disclosure 'overrides the search for truth.'" Perlman, p. 797, n.155. 

[4] Perlman at 770.

[5] Freedman, How Lawyers Act in the Interests of Justice, 70 Ford. L. Rev. 1717 (2002).  In a note to that passage, I added: "The norm that lawyers should give their clients zealous representation within the law and the disciplinary rules does not preclude favoring significant changes in what is allowed by the law and the disciplinary rules.  See id., Part I.  My principal concern in that regard is that any changes should not present a threat to the proper functioning of the adversary system.  See, e.g., Freedman, The Life-Saving Exception to Confidentiality: Restating the Law Without the Was, the Will Be, or the Ought to Be, 29 Loyola (L.A.) L. Rev. 19 (1996).  The American Law Institute adopted my position in the Restatement of the Law Governing Lawyers, and the ABA did the same in the Model Rules in August, 2001.

A Reply to Professor Monroe Freedman

I want to thank Professor Monroe Freedman for taking the time to respond to my article. As most readers of this blog know, Professor Freedman’s work is legendary.   His articles and books have shaped the field of legal ethics in so many ways that it is almost impossible to give him sufficient credit.

Not surprisingly, then, I take Professor Freedman’s comments seriously and would like to address them.

Professor Freedman says that I do not acknowledge that he believes in ethical values other than zealous advocacy. In particular, he notes that his article on errant faxes relies on four values: truth, zealous advocacy, confidentiality, and client autonomy.  Although I do suggest in my article that Professor Freedman’s theories are “monistic” in the sense of putting significant emphasis on a single value (in his case, zealous advocacy), I also make clear that Professor Freedman “acknowledges that other values, such as morality, are relevant to deciding the appropriate content of the rule[s].” (789)

My article, therefore, concedes that Professor Freedman does not rely exclusively on zealous advocacy. That said, I pointed out that Professor Freedman’s recommendations are typically so heavily influenced by a concern for zealous advocacy that other values only rarely affect his prescriptions regarding lawyer behavior. For example, in his discussion of truth-seeking, Professor Freedman contends that truth “is an important premise of the adversary system, but [that] it is neither the only premise nor the vital one.” (Freedman & Smith 136).

As for the other two values that Professor Freedman mentions – confidentiality and autonomy – they are inextricably linked to zealous advocacy. Professor Freedman has noted that “[c]ompetent representation requires” the trust that strong confidentiality rules provide. (127). Similarly, he explains that zealous advocacy is “closely related to the concept of client autonomy.” (79). So although Professor Freedman lists three values in his article other than zealous advocacy, two of them are very closely related to zealous advocacy, and the other (truth) is “not the vital” value. Again, Professor Freedman may not have an exclusive concern for zealous advocacy, but he places such importance on it and its close cousins, autonomy and confidentiality, that zealousness is not often overridden.

Professor Freedman also suggests that my article is ironic, because whereas he incorporates the truth value into his framework, I do not even mention it. As explained above, it appears that Professor Freedman places significantly more emphasis on zealous advocacy than on truth. But more importantly, I do explain how the truth value would impact the content of a rule for inadvertent disclosure. In particular, I note that “there is a serious question as to whether the additional information [provided by an inadvertent disclosure] really would improve the accuracy of the outcome. In most cases, each side has certain adverse information that it would prefer the adversary not to have. Lawyers play the discovery game and seek to protect that information within the bounds of the law. It is reasonable to believe that trials rarely reflect all of the information that each side has about the case. If privileged information is disclosed from one side and not the other, accuracy is not necessarily improved. In fact, the disclosure of privileged information from one side—and only one side—has as much of a chance of distorting the facts as it does of revealing the truth. In short, it is far from clear that the recipient’s retention of a privileged document promotes either truth or justice.” (799).

Fortunately, Professor Freedman does not criticize a more fundamental contention in my article: that the rules should be crafted with reference to a wide range of values. In his response, Professor Freedman alludes to a footnote in a recent article, where he makes a similar observation: "The norm that lawyers should give their clients zealous representation within the law and the disciplinary rules does not preclude favoring significant changes in what is allowed by the law and the disciplinary rules….My principal concern in that regard is that any changes should not present a threat to the proper functioning of the adversary system."

On this point, Professor Freedman and I agree. Concerns about zealous representation should not impede changes to the disciplinary rules. What I hope that I have done in my article is to catalogue more clearly what values should, in fact, guide us in developing those rules, how those values should be balanced, and how that balance should influence our prescriptions for difficult ethical questions, such as those raised by the inadvertent disclosure of privileged information and a variety of regulatory disagreements that also implicate conflicting ethical values.

Anita Bernstein on Zeal Next Week

Beginning next Monday, Anita Bernstein will join us for a blogosphere mini-symposium about her article  The Zeal Shortage, which John blogged earlier.  We're looking forward to a fun and provocative discussion.  See you then.

DM

Herbert Kritzer, on "The Commodification of Insurance Defense Practice"

With a hat tip to Larry Solum 's Legal Theory Blog, here's news of a new article by UW's Herbert Kritzer on "The Commodification of Insurance Defense Practice."  Kritzer has done several empirical studies of legal practice, including a study of contingency practice in Risks, Reputations, and Rewards.  The abstract to his new article is:

Drawing on a period of observation in an insurance defense law firm and a series of interviews with insurance defense lawyers in other firms, this paper presents an analysis of the work and relationships involved in insurance defense practice. The central argument of the paper is the insurance defense practice is viewed as a commodity by many, perhaps most, insurance companies. The result is to drive down the price for such services and to impose a variety of demands on lawyers providing insurance defense services that affect the work that the lawyers do. Specific topics discussed include fees and fee arrangements, working relationships between lawyers and insurance adjusters, marketing and client retention, and interactions between insurance defense lawyers and lawyers representing other insurers or plaintiffs.