Since 2008, an elephant has stretched in our Professional Responsibility classroom. What if the jobs don’t come back? Our course starts from the premise that a lawyer has lawyer’s work to do.
Traditional professional responsibility education has paid little attention to the possibility of unemployment. The ABA’s first set of disciplinary rules, the Model Code of Professional Responsibility (1969-1983), contained nine Canons that all presume opportunities to render service. A lawyer, said the Model Code, has the time and income to engage in various virtuous behaviors.
The Model Code of Professional Responsibility, successor to the Code, drops clearer hints that a lawyer might struggle to make a living. Article 1, on the client-lawyer relationship, acknowledges the possibility of wanting to buy someone else’s practice. Article 5, on law firms, recognizes the temptation to practice law without being admitted in a particular jurisdiction, to take orders from nonlawyer-pipers who feel entitled to call the tune, and to prepare agreements limiting a fellow lawyer’s right to practice. Article 7 condemns a handful of business-getting devices favored by hungry practitioners. Overt recognitions of economic strain for lawyers make the Rules more realistic than the Code: but still they conceive of a lawyer as a practitioner, employed and making enough money to live.
Most law school graduates take up work in the practice of law, and so our teaching them the law of lawyering continues to make sense. We offer professional education suited to students who by and large do join our profession. It behooves us, however, to bring downturn awareness into our classroom, acknowledging a reality from which we as law professors enjoy partial shelter.
When we overemphasize problems that do burden lawyers but are, in the scheme of things, nice to have—May I represent Client Z when I’m collecting fees from Client X, who holds conflicting interests? How much may I charge a prospective client willing to pay me whatever I ask? How do I talk about my past work when I’m accepting a job offer and need to reveal conflicts? If my prospective client is really keen to retain me, may it, with my help, waive its right to sue me for malpractice? Should my corporate client ‘lawyer up’ its internal investigation so as to generate the shield of attorney-client privilege? Where do I deposit this large check? —we risk alienating an audience preoccupied with finding work and repaying loans; we may appear insensitive. If in 2012 I omit downturn awareness in class, then I can’t blame a student for thinking of me as insulated and clueless. Tenured into oblivion, not looking at the elephant.
Here are a few awareness suggestions to consider for a Professional Responsibility class. They find a midpoint between hopeless gloom (“It’s Great Depression II! You think you’ll find sustained work as a lawyer? Right!”) and piggish indifference (“Downturn? I’ve got my old syllabus and my old lecture notes. The world didn’t change for me and I don’t care that it’s changed for you.”). I’ve tried to include both substance and procedure:
• If you invite occasional guest speakers, consider a young sole practitioner willing to reveal some numbers (hourly fees, overhead amounts) and talk about the pragmatics of opening an office. Last time I did so, one student thanked me for bringing in someone so “relatable.” You may have taught such young lawyers. If not, you can meet them in bar groups.
• Your discussion of several Model Rules can include a downturn perspective. For example:
Rule 1.5: Let’s say you are opening your own office, alone or perhaps with a couple of classmates. How will you figure out how much to charge for your work [in this economy]? What are the advantages and disadvantages of a contingent fee? An hourly fee? Billing for an entire matter rather than the hour?
Rules 1.9 and 1.10: Former-client conflicts and imputation can be presented with reference to a law firm choosing between a senior or junior lawyer. The junior lawyer probably arrives with fewer conflicts; the senior one has more experience. This framework notes scarcity without harping on it.
Rule 1.15: Which stresses might motivate a lawyer to dip into her client trust account? What rationalizations might appeal to her? How might a lawyer guard against the desire to spend (or “borrow”) this money?
Rule 5.7: You might ask, What kind of side business might you want to start or join? Would this activity fall under “law-related services” (Rule 5.7(b))? How does the state of the economy affect your choice?
• Ethics 20/20. Established to review lawyer regulation “in the context of technology and global legal practice developments,” the ABA’s initiative can occupy part of a class. Ethics 20/20 offers students a chance to talk about innovations in the practice of law that make oblique reference to the economy. It’s at the center of professional responsibility: opportunities and perils.
• Social networks meet the practice of law. In both my classroom and my bar work I’ve noticed that this topic holds considerable interest. It relates to Ethics 20/20 but can be introduced in class independent of ABA efforts. Mentioning media like LinkedIn and Facebook adverts to the downturn while offering enough unrelated content to avoid immersion (immiseration?) in it.
• Don’t forget the good news. Downturn awareness should be offset with upbeat material about the past and future, I think. You could ask your students to find it: they can complete a brief assignment called something like “One thing I admire about the American legal profession” with the help of search engines. Even those in your class who are buying three years of shelter from the job market have joined an occupation that professes ideals.