Legal Ethics Forum

"The Market for Bad Legal Scholarship"

2008-07-19T19:27:40-04:00

Readers my recall that we had a series of posts late last year (here, here, and here) about Professor Bill Simon's provocative and controversial article on legal ethics experts, The Market for Bad Legal Advice: Academic Professional Responsibility Consulting as an Example. More recently, there was this story about it in Fortune Magazine.

Now Professor Bruce Green, one of the targets of Professor Simon's article, has posted his response on SSRN. The response will soon appear in the same issue of the Stanford Law Review as Professor's Simon's work, and it will contain a similarly provocative title. It's called, "The Market for Bad Legal Scholarship: William H. Simon's Experiment in Professional Regulation."

I'm a somewhat biased observer of the debate at this point, since I expressed skepticism about Professor Simon's article when he first posted it (some of which now appears in Professor Green's article). With that disclaimer, I found Professor Green's response to be powerful and quite convincing.

Bill Henderson on the "Cravath System"

2008-07-18T06:03:43-04:00

Professor Bill Henderson has put up yet another great post about large law firms. It draws on one of his working papers, Are We Selling Results or Résumés?: The Underexplored Linkage between Human Resource Strategies and Firm-Specific Capital, where he takes a look at why entry level law salaries have developed a bimodal distribution. He ultimately concludes that large firms have focused too much on hiring lawyers with strong academic credentials and that, as a result, "the wheels of their hallowed business model are falling off." In his working paper, Bill offers a solution:

The essay draws upon the findings of an innovative study of engineers at the renowned Bell Laboratories to sketch out a plausible alternative law firm model that could profit from client discontent. In an exhaustive study that was designed to identify the various traits of star performers (so Bell Labs could recruit more of them), researchers found no relationship between performance and various social, psychological, and cognitive abilities, such as I.Q. Two years of observational fieldwork subsequently revealed that higher productivity among knowledge workers was attributable to several distinctive work strategies that were teachable. Further, controlled experiments showed large and persistent productivity gains for engineers who completed the training program, with women and minority workers posting the largest increases. I discuss whether these insights could be applied to law firms (the answer is yes) and why law firms nonetheless would resist despite the potential for higher profits. I then outline how the concept could be put to a market test.

It's another must-read for anyone interested in the economics of large law firms.

More on McNulty

2008-07-17T11:42:29-04:00

Last week, the DOJ indicated that it planned to make important changes to the infamous McNulty memo. This week, the chair of the ABA's Task Force on the Attorney Client Privilege, R. William Ide III, said that the changes are insufficient and that legislation is still necessary to ensure adequate protection for the privilege. Stay tuned for the show down.

Sleeping with Prosecutors

2008-07-17T11:35:53-04:00

First, there was the D.A. in Texas who prosecuted a capital case in front of a judge with whom he was allegedly having a secret sexual relationship. And now there's a prosecutor in the Chicago area who was having an undisclosed affair with a police officer who testified in some of her cases. At least in the latter case, officials are doing something about the misconduct, which is more than can be said for the folks in Texas.

Lawyer-blogger says that calling a judge a "witch" cannot be disciplined

2008-07-16T10:46:08-04:00

Story here.

Big firms that won't sue banks?

2008-07-16T10:43:40-04:00

Interesting article here on the traditional norm -- now perhaps changing due to the subprime crisis -- that large firms with banking clients will not sue banks. Linklaters sued a bank that was acquired by a longtime bank client of the firm, resutling in being fired.

Bill Henderson on law school candor (and what applicants really want to know about schools)

2008-07-14T18:30:40-04:00

Read this post by Bill Henderson, who continues to do trail-blazing analyses of law schools and law firms. I agree 100% that what the applicants and law students want is not what they're getting from the schools or from USN&WR.

Exploring "what is right" in law school

2008-07-14T11:40:23-04:00

Former GE general counsel Ben Heineman has written a new book titled High Performance with High Integrity in which he argues that CEOs must create "cultures of integrity." I'm a bit skeptical that "integrity" gets us very far on its own unless we talk about the moral or ethical principles from which we are not supposed to be divided. In any event, what struck me is a complaint he offered about law schools in an interview:

Law schools teach powerful analytical tools but they don’t as often teach students to go beyond searching for what is legal to ask (and learn how to answer): “what is right?”

I'm not sure that Heineman's book will give a comprehensive or compelling vision of how to articulate, or even engage, questions of the "right" or the "good" in the attorney-client relationship, but in light of our previous conversations on the prudent objectives of legal education, I found it interesting that there is dissatisfaction expressed by someone who has been "in the trenches."

Zacharias on Lying to the Court

2008-07-14T09:04:31-04:00

Here is a recently posted article by the prolific and widely cited ethics scholar, Professor Fred Zacharias, on whether lawyers should ever be allowed to lie to a court. The article addresses a famous hypothetical by Monroe Freedman and is the product of a lecture that Professor Zacharias gave at Case Western University Law School last year.

Important Changes to the McNulty Memo

2008-07-11T11:30:20-04:00

The DOJ is changing the oft-criticized McNulty memo so that federal prosecutors can no longer use waiver as a measure of cooperation and cannot demand the waiver of privilege or work product.

A letter, which was sent to the Senate Judiciary Committee and describes the forthcoming changes, makes clear that the DOJ is trying to undercut the growing legislative efforts in this area. More on the story here.

Abbe Smith's "Case of a Lifetime"

2008-07-09T11:06:10-04:00

Georgetown Professor Abbe Smith's new book, Case of a Lifetime: A Criminal Defense Lawyer's Story, is about to hit the presses. The book chronicles Abbe's decades long quest to exonerate a woman who had been wrongly imprisoned for 28 years.

I had a chance to read an excerpt from it in the Washington Post (thanks to Steve Berenson in his comment for the updated link) and it's a riveting account of the many difficult issues that criminal defense lawyers regularly face. I was particularly interested in how Abbe deals with the problem of pressuring a client to accept a plea that the lawyer believes is in the client's best interests but that the client is reluctant to accept.

Aside from containing great content, it's also a wonderful read. Here is a flier about the book.

Ethics Complaint Against DOJ Lawyers Over Hiring Controversy

2008-07-09T10:19:49-04:00

Following up on Brad's great post on the subject, a watch dog group has filed an ethics complaint against two lawyers who allegedly engaged in illegal screening of DOJ applicants. The argument is that the lawyers knowingly broke the law and thus violated Rule 8.4.

Cleary sanctions upheld

2008-07-02T11:09:07-04:00

Folks who believe that the ethics regime needs to be more willing to focus punishments on entire firms, not just individual lawyers, should be cheered by yesterday's ruling by the Second Circuit upholding sanctions for Cleary Gottlieb. Lawyers from the firm had contacted a non-party witness, and the trial court viewed the contact as attempting to interfere with a deposition, ruling that the firm showed “a willingness to operate in the murky area between zealous advocacy and improper conduct." As Cleary's lawyer on appeal noted, "[t]hat’s a pretty stigmatizing statement for a court to make about an entire firm." The punishment: paying the opposing party's costs and circulating a formal reprimand to all of the firm's 950 lawyers.

UCI to offer course on fact investigation

2008-07-02T11:02:54-04:00

According to the Daily Journal (which doesn't post content on the web), the new UCI law school will have an experienced reporter, Henry Weinstein, teach a course on factual investigation. Weinstein taught that course at USC with Erwin Chemerinsky, who's the new dean at UCI.

That sounds like a great course. I seem to recall reading a survey years ago that asked practicing lawyers to rank the most important skills in their professional life. IIRC, "finding out the facts" was first, marshalling the facts was second, and analyzing appellate opinions was much lower. I may be mis-remembering the results, and it's possible that practicing lawyers don't value the analysis of appellate opinions because they've tended to master most of the substantive law in their fields -- that is, they take their analysis skills for granted and use them at the margin when significant new cases come out. But based on my experience, digging out the facts and sorting them remains the top task for litigators. I never heard about that in my law school classes. I'd be very interested to see what Weinstein's class covers.

More on teaching normative method

2008-06-30T00:56:36-04:00

I enjoyed David's (helpfully) provocative post on teaching normative method, though I disagree with it on several levels. I'm not a philosopher, nor do I play one in the classroom, so I'll leave the nuances of the expressivism debate to others. I do believe that concepts such as human dignity pertain to something real, though I agree that our usual invocation of them often simply dresses up with rhetorical "oomph" a normative conclusion that is totally independent of the concept invoked. The blame lies, in my view, with the sloppiness and laziness of our moral reasoning (mine included), not with the inherent emptiness of the concepts.

I’m not sure what David means when he says that “[t]eaching normative methods . . . has only a little to do with normative belief.” I agree that a lawyer need not believe in the norms through which he engages the client, but that does not mean that the engagement has little to do with normative belief. They have a lot to do with the client’s beliefs, both beliefs the client is able to articulate and those that resonate with the client upon lawyer-facilitated reflection. If we are truly a client-centered profession, we cannot assume that all clients employ a cost-benefit analysis geared to the maximization of their own self-interest. Much of the skepticism about moral engagement between lawyers and clients seems to presume that every client is selfish, and that the morally engaged lawyer aims to force them to stop being selfish. As Tom Shaffer laments, we assume that what clients want is "not goodness, but isolation and independence." A lawyer encountering a client who desires goodness (or some other moral value) will best serve the client by meeting them where they’re at, and because of the difficulty clients have in translating moral considerations into legal means and ends, the conversation will be most fruitful if the lawyer and client can engage each other in moral terms. The fact that goodness is not self-defining does not diminish the need for a moral dialogue; it heightens the need.

David criticizes my “call for more overt moralizing by lawyers,” but I don’t think that I'm calling for moralizing. Here’s an excerpt from the paper David references:

Whether we agree with the substance of the moral perspective brought to the surface of the attorney-client dialogue through this process is immaterial. Given the absence of moral consensus, moral lawyering cannot be focused on the achievement of one particular moral worldview or set of claims. Client engagement with the moral issues driving legal advice cannot be mistaken as a quest for agreement on those issues. President Bush may or may not have disagreed with the utilitarian moral presumptions underlying Bybee’s advice, Enron’s management may or may not have found its lawyers’ perception of its moral perspective accurate, and the Catholic Church may or may not have embraced the profession’s adversarial norms. The importance lies in the opportunity to assess these moral presumptions. In this sense, the lack of moral unity among lawyers is not an obstacle to a wider embrace of moral lawyering; the profession should not (and indeed cannot) look to present a unified moral front to society. Its best hope is simply to engage the society on moral questions, one client at a time.

I do not believe that lawyers should impose their own moral convictions on their clients; I believe that lawyers should engage clients in a dialogue concerning the moral dimension of the representation. Contrary to the implicit presumption of David's post (as I read it), there is a vast middle ground between the “moralizing lawyer” and the “amoral lawyer.”

What's Law School About?

2008-06-29T20:55:56-04:00

Warning: This isn't very coherent.

I've been teaching full time for 5 years, and previously taught as an adjunct probably for a total of five years, at schools ranging from the the top -- U Texas to the middle, U Houston and Mercer -- and each time I've wondered what it is that I'm supposed to be doing.

This semester, I've taught PR at UH summer school. PR seems to me to be the strangest course to teach (I also teach some of the *other* poorly evaluated courses, overall, in law school, including Property and Civ Pro). I always feel twisted teaching the PR course - students want law and rules, and I do think the skill set of reading rules (statutes, too) is under-taught in most schools, so that has a purpose, but I also use some heavy problem methods, so that the students learn that the rules get you about half way there in real life.

But I never feel satisfied with either approach. The books (there are more PR books than civ pro books, which to me is a profound statement by itself, but I digress) often also exhibit this tension or twistedness, with some ignoring the real world and focusing on policy, with others focusing almost solely on real world issues.

Anyway, just a rant and not a very coherent one at that. I've had the same conversation with myself each time I teach anything -- and whether evaluated well by the students, or not, I hope in a way that I always will, but I also do hope that someday there is a clearer answer....

The Importance of an Objective Appearances Standard for Judicial Recusal

2008-06-29T19:51:04-04:00

The facts of the Hood case (Texas death penalty), which has been discussed earlier, illustrates the importance of an objective and broadly-phrased appearances standard for judicial recusal. It is not unlikely that the judge in that case would be satisfied that she had been able to preside over Mr. Hood’s case with complete impartiality.

Moreover, suggestions that such a standard should not be used in the ABA’s Model Code of Judicial Conduct or in statutes like 28 U.S.C. 455(a) fail to recognize that constitutional due process requires that result. It would be anomalous if statutory and ethical standards were less demanding than what is required by due process.

The U.S. Supreme Court has held that the Due Process Clause of the Constitution requires that a judge “not only must be unbiased but also must avoid even the appearance of bias.” See, e.g., Commonwealth Coatings Corp. v. Continental Casualty Co., 393 U.S. 145, 150, 89 S.Ct. 337, 340 (1968). For example, the U.S. Supreme Court reversed a conviction on the grounds of due process because a state judge had held a defendant guilty of contempt of a grand jury that had been presided over by the same judge. In re Murchison, 349 U.S. 133, 75 S.Ct. 623 (1955). As noted by the dissent in that case, the state judge had had no pecuniary interest in the matter, nor had there been any contention that the judge had become embroiled in the matter, or that he had been biased in any way. 349 U.S. at 141, 75 S.Ct. at 623 (Reed, J., dissenting). Nevertheless, the Supreme Court reversed the conviction, holding that “to perform its high function in the best way, ‘justice must satisfy the appearance of justice.’” 349 U.S. at 136, 75 S.Ct. at 625, quoting Offutt v. United States, 348 U.S. 11, 14.

Also, the use of a disqualification rule based on the appearance of impropriety has important practical advantages. First, some lawyers are reluctant to make disqualification motions for fear of antagonizing judges, particularly those before whom they expect to appear again. The professional obligation to seek disqualification in appropriate cases is made easier when the lawyer need not accuse the judge of bias in fact. Rather, the lawyer can acknowledge that the particular judge is “pure in heart and incorruptible,” but that he is nevertheless subject to disqualification on an objective, appearances standard.

Also, some judges are reluctant to recuse themselves out of concern that to do so would be an embarrassing admission of a disabling bias. The appearances standard, by disqualifying even the judge who is “pure in heart and incorruptible,” avoids this concern as well. In addition, it can be difficult to act impartially as a judge in one’s own case. An objective appearances standard, and the elimination of the duty to sit, make it less likely that a judge will be able to successfully avoid recusal when it is warranted.

A related problem arises when a judge’s decision not to recuse himself is reviewed by fellow judges in an appellate court or by a colleague on the same bench. A desirable collegiality among judges can be adversely affected by a decision by one judge that another is biased, or (as a federal district judge was called upon to decide in Liljeberg v. Health Services Administration) that a fellow judge had not really forgotten information that he claimed to have forgotten. Also, the Supreme Court recognized a further concern in Liljeberg, 486 U.S. at 865, n.12, 108 S.Ct. at 2205, n.12:

“A [favorable] finding by another judge – faced with the difficult task of passing upon the integrity of a fellow member of the bench ... is unlikely to significantly quell the concern of the skeptic.”

That is, despite the fact that a fellow judge has accepted the word of a judicial colleague that the latter has acted impartially, a reasonable member of the public might nevertheless question the judge’s impartiality and, therefore, the fairness of the administration of justice.

For these reasons, a broadly phrased appearances standard, as in 28 U.S.C. 455(a) and in the ABA’s Model Code of Judicial Conduct, has sound practical justification, as well as assuring that justice will not only be done but that it will appear to have been done.

A Systematic Analysis of Lawyers' Ethics Based on Dignity and Autonomy

2008-06-29T11:23:07-04:00

As Abbe Smith and I say in the third edition (2004) of Understanding Lawyers’ Ethics:

“This book presents a systematic position on lawyers’ ethics. We argue that lawyers’ ethics is rooted in the Bill of Rights and in the autonomy and the dignity of the individual.... From this perspective, we analyze the fundamental issues of lawyers’ ethics....”

Included in that analysis is a twenty-five-page chapter on “The Lawyer’s Virtue and the Client’s Autonomy.” (Pp. 45-69).

A premise of the book is that “In a free society the public interest is served when individual dignity is respected, when autonomy is fostered, and when equal protection before the law is enhanced through professional assistance.” (Pp. 129-130). Thus, the fundamental rights that have been constitutionalized in the American adversary system provide both a deontological foundation for our analysis and definitions of what we mean by dignity and autonomy.

This analysis was introduced in Lawyers’ Ethics in an Adversary System (1975). For example, the first chapter of that book discussed the Lake Pleasant, N.Y., buried- bodies case in the context of “a system of administering justice which is itself essential to maintaining human dignity.” (P. 2). Also, in a chapter on “Zealous Advocacy and the Public Interest,” the point is made that “the institution that the lawyer serves by zealous devotion to the client is the adversary system – a system for the administration of justice ... [that] is uniquely protective of the dignity and the fundamental rights of the individual.” (P. 12).

The emphasis on human dignity and autonomy was expanded in “Personal Responsibility in a Professional System,” 27 Cath. Univ. L. Rev. 191 (1978), which was presented as the Thirteenth Annual Pope John XXIII Lecture at Catholic University Law School in 1977.

Yellow-Light Words and the Teaching of Normative Method

2008-06-27T12:43:08-04:00

I would like to add an acidic voice to our discussion of legal ethics, dignity, and normativity.

Words like fair(ness), just(ice), dignity, autonomy, flourishing, and the like, are the yellow lights of legal ethics discourse. When you see them you know the argument is about to end, and you should proceed with caution. The problem is not that no one knows what they mean, but that everyone does, yet they disagree about meaning. If the words weren't indispensable for a very limited purpose, we'd be better off without them.

How are the yellow-light words used? With like-minded friends they can be shorthand for whole arguments. In casual conversation with others, they are a last resort. You use them when you run out of arguments about jailed innocents, bilked investors, and double-crossed clients. Arguments, in other words, about costs and benefits. More formally, yellow-light words are sometimes used (to steal shamelessly from the incomparable Arthur Leff) to whisper conclusions as definitions at the beginning of a work so that they can be discovered as entailments at the end. (Some Realism About Nominalism, 1974).

One thing the words are not useful for is description. I think the discussion below (Alice and Rob and Patrick, in comments) about dignity and autonomy exemplify the point. The pragmatic maxim here does useful work--our knowledge of these concepts is the sum of our knowledge of how they are used. When I describe the Unabomber's dignity, or Scooter Libby's or Charles Manson's, the only useful part of the description will be the facts to which the word pertains and the consequences of using it.

Yellow-light words serve two rhetorical purposes, though. They signal the speaker's commitment to a position (and also that she has run out of practical reasons), and they invite the listener to examine his own commitments in light of the depth of the speaker's feeling. The invitation may be and often is rejected, but sometimes it isn't. Note though that it is the diffuseness of the words that makes the invitation work; the more concrete the meaning the less they invite and the more they insist.

Here's an example. When I say (as I believe) that out of respect for the dignity of persons we should recognize same-sex marriage, I do not assert "there is such a thing as dignity, I know what it is, and it entails recognition of same-sex marriage." I know that some listeners (not to mention our friend Kant, as I recall) would recoil at such an assertion, and it would be presumptuous and obtuse of me to pretend that words like dignity refer to actual things about which it makes sense to speak in terms of "right" and "wrong."

The content of my assertion is: "I feel strongly about this, as strongly as you do about the set of things you use the yellow-light words to discuss; please examine the sentiments that motivate your use of the words and see if that motivation can extend to my use." There is, I assert, nothing more that such words can do, but for that very useful purpose they are indispensable. If we decide to have a debate on dignity and same-sex issues, I think the point will become clear right away.

But my reference to dignity is my fallback. My reasons have to do with empirics--the persistence throughout recorded history of same-sex conduct (implying it is part of the natural variety of behavior), the fact that marriage in Massachusetts has not fallen apart since Goodrich, data from Scandinavia (see Eskridge on this), etc.

But better than this, of course--and better than whole libraries of learned discourses on dignity--if I know you are friends with and respect someone who is gay, I will talk about him or her. If you know a couple I will talk about them. I will tell stories about same-sex couples with kids. I assert that we all know these are the best methods of persuasion, and combining them with yellow-light words will give those words such content as they have.

I therefore agree in part with what I take Professor Singer's view about teaching normative methods, with the emphasis on methods. You don't lead with the words, and you don't shoot them out their on their own. They would would die of starvation. They have to be wrapped in and nourished by contexts that create frames that invite identification between one's own position and the world view of the person you are trying to persuade.

I don't know if Professor Singer would like my reading, which comes close to translating him as advocating the teaching of sophistic, but so far he is certainly right. And sophistic gets a bad rap anyway. It may ameliorate disagreement and conflict where the sincere search for capital-T truth would multiply them. (Liberalism, after all, values accommodation over truth.) Take the argument much past advocacy of sophistic, though, and I think Singer is likely to find himself in the anti-foundationalist swamp (Leff again), from which the desert of law and economics (against which Singer, like and partly following Leff, scores some good points) looks mighty good.

Teaching normative methods therefore has only a little to do with normative belief. It should stress facts and framing, that the best argument is the one that persuades the listener she already agrees with you, and the next best is one that requires her to move only minimally from her prior beliefs. Pictures help, too. (See Posner on Peter Singer.) It should also stress that normative rhetoric is tactical, and that true belief may blind an advocate to the tactics of persuasion. Lose perspective, argue badly.

I therefore am skeptical of Rob's call for more overt moralizing by lawyers (in his Legal Advice as Moral Perspective piece) and find the piece in tension with Singer's, about which Rob blogged. Instead of decrying the lack of moralizing, I would ask why practitioners seem to do little of it. After all, no one prevents them from doing so, and if clients find it useful lawyers could tout their moralizing and get business. Why don't we see that? Perhaps practitioners--and collectively they are smarter and more experienced about their trade than academics--are on to something. My impression is that they adopt amoralism as a default because it works best for them and their clients.

Lawyers should be sensitive to context and the full range of client needs--Rob makes an interesting case that lawyers for the Catholic church might not have been--but that modest contextual approach implies something closer to pragmatism than anything else. I suppose it is fair to call pragmatism a moral stance, if you want to, but having done so why condemn it and imply that something is wrong because we don't see more of alternative approaches? I do not think moralizing by lawyers would have stopped Enron from collapsing (a collapse too readily linked to the SPEs anyway); it would simply have been perceived (on both sides) as weird.

Richard Posner notwithstanding, academic moral philosophy is not going away, either in philosophy departments or law schools. That is not all bad. Philosophy is good for what David Luban in another context called intellectual hygiene. (The Revival of Pragmatism 281) I don't think it is good for more, but intellectual hygiene is an under-rated virtue. Most arguments fail to achieve it. But it can be an over-rated virtue, too. One should not expect people to accept arguments just because they are valid.

In this essay (284-87) Luban seems to agree with Arendt that philosophy is about wrestling with the meaning of some classic insoluble problems even if it cannot be about solving them (empirically, they seem to have no "solutions"). I am not wholly sure what he means by "grappling with the meaning of issues" (290-91), a term he uses in reference to Justice Brennan's references to dignity in Jones v. Barnes, but his view that Brennan's rhetoric invites re-thinking of an issue in foundational terms is congenial to my argument above.

But if we are talking about philosophy as a form of rhetorical invitation it must be judged by the standards of successful rhetoric, of which the strictures of logic are an important part but only a part. And that implies, I think, that in teaching normative method we stress the need for perspective, and thus some detachment from, normative commitment. Method, not normativity, is the key to normative method. Expecting or insisting on answers or Truth is an impediment.

Luban on "When a good prosecutor throws a case"

2008-06-26T11:22:31-04:00

They're having an intereting thread at Balkinization, where David Luban's post praised a prosecutor who "threw" a case. In the comments, Stephen Gillers and I disagreed with Luban.

Yoo testifies before Congress

2008-06-26T11:18:07-04:00

The Balkin site is covering Yoo's testimony before Congress. Yoo's written testimony is here.

UPDATE: C-Span has the testimony online, here.

Government checking law students' MySpace pages?

2008-06-26T11:16:10-04:00

The recent report on political bias in hiring of law students at DOJ, mentioned below by Brad, reveals that the federal government, as an employer, was poking around in the law student applicants' MySpace pages. (See, e.g., p. 61) Commentary here.

Wow. The federal government is watching. Law students, be governed accordingly.

Bill to reverse McNulty Memorandum expected to pass

2008-06-25T10:42:14-04:00

Story here. To some degree, the bill would ban a practice -- prosecutors conditioning leniency upon the defendant's waiver of the attorney client privilege -- that has been on the wane since the KPMG debacle, where many the government's prosecutions were dismissed becuase of interference with the defendants' right to counsel. Susan Hackett, the GC of the Association or Corporate Counsel and a key sponsor of the legislation, says, "[T]his is not a pro-company bill. This is about the fundamental premise upon which all legal counseling is based."

Should we even be talking about human dignity?

2008-06-25T00:06:53-04:00

Reading the posts by Brad and Alice made me wonder how Luban's vision of lawyering and its relationship to human dignity responds (or would respond) to criticisms by Ruth Macklin and others that dignity is a "useless concept," and that we should really be talking about autonomy. I confess to not having read Luban's book yet, so he may already have answered this. It seems to me that a dignity-centered moral justification of lawyers' work will have significant overlap with an autonomy-centered moral justification, but the overlap will not be total. I'm not sure, though, how or whether the differences in justifications might translate into differences in the substantive requirements/aspirations of legal ethics. How, if at all, does the debate over human dignity (not just over its substance, but over its utility as a concept) affect our view of the lawyer's role?

More on Silver on Luban

2008-06-24T15:30:30-04:00

Charles Silver’s review of David Luban’s Legal Ethics and Human Dignity needs to be understood as the latest word in a debate which began with the publication of “What’s Not to like About Being a Lawyer?” a 1999 review essay of Arthur Liman’s memoir in the Yale Law Journal (109 Yale L.J. 1449), which Silver wrote with Frank Cross. In that essay Silver and Cross make several fundamental claims. First, they assert the moral value of all lawyer work. They ground this assertion in the position that the pursuit of lawful private interest is a social and moral good; when lawyers assist individuals pursue those private interests they too, therefore, do a moral good: “lawyers who help paying clients with private matters make valuable microeconomic contributions by helping create and maintain the world of commerce and valuable micropolitical contributions by maintaining a culture in which people actively create and use legal rights” (1449).

Second, they argue that this work of lawyers has as much inherent value as “pro bono” or other work directed at ameliorating the life of the more disadvantaged. They argue on the one hand that “private-sector lawyering makes an enormous economic contribution to social welfare, including the welfare of the poor” (1479) and that, on the other hand, it is unlikely that pro bono work will make a significant contribution to the life of the less advantaged. It would, Silver and Cross argue, be better and more efficient to simply transfer wealth to the disadvantaged; rather than requiring pro bono, “[w]hy not have lawyers donate money” (1483) while using their legal skills to their maximum economic value?

It was this latter argument which Luban takes exception to in Legal Ethics, arguing that Silver and Cross fail to appreciate the importance – morally and practically – of pro bono legal advice. He uses various examples to demonstrate that there are innumerable circumstances in which a cash donation would not accomplish the pro bono client’s objectives and, most fundamentally, would fail to accord that client with any respect for her human dignity. He uses Maimonides’ notion of the distinction between help, in which a lawyer assists a client realize her ends, and a handout, in which a lawyer would be treating the client as simply an object of the lawyer’s own beneficence. The difference in the dignitary respect accorded to the person needing assistance in these two alternatives is, Luban argues, clear, and demonstrates the moral importance of pro bono work.

In this review of Legal Ethics Silver takes a shot at a number of Luban’s arguments, but those that draw most obviously on his own earlier work, and Luban’s response to it, are his assertion that in essence Luban has over-valorized the importance of what lawyers do, and his expressed irritation at Luban’s response to his and Cross’s pro bono argument. Neither of these criticisms is convincing, or even really fair.

On the first point Silver wants to have it both ways. He wants to assert, on the one hand, the moral dignity of lawyers in private practice, to argue that “lawyers make exceptionally valuable contributions to economy and society”, and on the other hand to dismiss the attempts to a) understand more deeply the moral significance and scope of that contribution; and b) to subject lawyers to criticism when, like the torture lawyers, they violate even the internal norms of their craft. Silver doesn’t really engage with the fundamental arguments Luban makes; he rather raises the question of whether they are even worth making. Whatever one’s view of Luban’s particular arguments, the position that the questions he is attempting to address are in some way unimportant, that the exercise is useless because lawyers are either powerless (relative to the Executive) or unimportant (relative to those living and dealing with others in the shadow of law) just doesn’t work. It doesn’t work empirically given that even if what lawyers do is less important than Luban claims (which I don’t accept), if it has any importance at all, any social role whatsoever, then these questions need to be answered. And it doesn’t work coherently when your own starting position is that lawyers are making an exceptionally valuable contribution.

As a minor point, I’m also somewhat perplexed by the claim that the resignation of Richardson and Ruckelshaus was irrelevant to their being lawyers. It may be that resignation of other government officials in other circumstances would have been important too; but I don’t see how you conceptualize the resignation of an Attorney General and Deputy Attorney General other than as the resignation of lawyers. Government lawyers who resign when asked to do something they believe to be contrary to the rule of law make a special kind of statement, a statement inherently related to the lawfulness (or unlawfulness) of what they have been asked to do. It was not just that the matter was of “great importance to the country” in the abstract; it was of great importance in a particular lawyer-relevant way.

And on the pro bono point, while perhaps placing Silver and Cross at a reception desk of a legal aid office evokes an image that is unattractive to the person placed within it, it is only a small part of a much larger argument, an argument which does raise fundamental problems with Silver and Cross’s own position, problems that Silver in his review fails to address. The degradation from the client’s perspective (as opposed to Silver’s) arises not from the receptionist set up, but from the fundamental distinction between help and a handout, between treating the client as object and as subject. The questions which Silver suggests a “more charitable scholar” than Luban would have asked are not relevant to that basic point. [As a personal aside, the idea that there could be a “more charitable scholar” than David Luban truly defies credulity.].

Wendel on Silver on Luban

2008-06-24T14:03:13-04:00

Charles Silver of the University of Texas has posted a review, on Notre Dame Philosophy Reviews, of David Luban's new book, Legal Ethics and Human Dignity. Luban's book has already attracted a great deal of attention, including a review symposium in the Cornell Law Review, a conference at Georgetown, and of course this high-profile notice on this blog. There are a number of themes developed in the book, and reviewers have agreed and disagreed with different bits of the book. But I think Silver is not quite right about an important piece of Luban's argument. Luban can obviously speak for himself (and frequently does so, over on Balkinization), but Silver's critique reveals an important theoretical problem that is worth throwing out there for readers to consider. (This is something I'm working up for an upcoming lecture, so this post is also a precis of a half-baked work in progress.)

Silver charges Luban with exaggerating the connection between the legal profession and the rule of law. He cites Luban's statement that lawyers are "a necessary precondition" for the rule of law, and then notes that it is possible to maintain order, to a significant extent, without lawyers. That's a familiar enough point (law geeks will inevitably think of Shasta County, California), but I think it's a misreading of Luban's project. My take on what Luban is all about is that he's arguing that the normative attractiveness of the legal profession -- both from the point of view of society (why have an occupational group called lawyers?) and from the point of view of individual lawyers (what is the moral worth of my life's work?) -- depends to a significant extent on the values underlying the rule of law. The rule of law is a contested concept, of course, but the core of the concept is well described by Joseph Raz: "Government by law and not by men is not a tautology if 'law' means general, open, and relatively stable law." Some philosophers add criteria, as in Fuller's famous list of eight ways in which a legal system can go awry, and some insist on adding substantive justice as an element of the rule of law (as in a recent lecture by the Lord Chief Justice of England and Wales). But the core evaluative notion is that the concept of the rule of law sets limitations on what counts as a law.

One of the ideas Luban explores in his book is that the rule of law sets limitations not just on the content of law (e.g. as Raz argues, all laws must be prospective, open, and clear), but on the activity of lawyering. The most original part of the book, in my view, is the chapter on Lon Fuller, entitled "Natural law as professional ethics." Here Luban argues that (1) the rule of law establishes a moral relationship between those who govern and those whom they govern (p. 99); (2) this relationship establishes moral constraints on the actions of lawmakers and law-administrators (pp. 100, 102-03); and (3) the ethics of lawyers should be understood in terms of their role as "architects of social structure" (p. 104).

Silver reads this as an argument that lawyers are necessary as architects of social structure, but I don't think that is Luban's point at all. His point, as I read it, is that the moral attractiveness of the lawyer's role has to be understood in terms of its contribution to a morally worthy relationship between rulers and subjects. That is, there are better and worse ways of governing people, and legal governance is better, for various instrumental and non-instrumetal reasons, than the alternative such as governing by managerial directives (p. 110). For one thing, legal governance presupposes a distinction between raw power (de facto authority) and legitimate authority. "Because I can" does not count as a justification for the use of power, if we take the rule of law seriously. As Luban reads Fuller, "governing the conduct of others through law rather than managerial direction is . . . a morally freighted choice [because] it implies a certain built-in respect for the human dignity of those subject to the law" (p. 110). Thus there is a connection between human dignity, the rule of law, and the ethics of the lawyer's role.

What does this imply for lawyers? Silver accuses Luban at several places of being naive, which seems like just another way of saying a philosopher and not a lawyer. But I think this book shows a great deal of sympathy for the lawyer's point of view, and a remarkable ability for someone not trained as a lawyer to understand what works and doesn't work in legal argumentation. The chapter on the torture memos makes the argument, which I have made as well, that the ethical problem with the torture memos is that they are examples of bad lawyering craft. Yes, torture is bad, but the specific ethical wrongdoing committed by lawyers who advise on torture (as opposed to people like Donald Rumsfeld who advocated for and implemented policies) is related to the lack of a legal justification for the positions they took in their memos. In other words, the lawyers did not sufficiently respect the distinction between "because I can" and the lawful exercise of power. Silver laughs at Luban ("[t]his merits a guffaw") for suggesting that lawyers have an ethical obligation to provide candid legal advice, but this is only laughable in light of Silver's conception of legal ethics as fundamentally a matter of the bar's self-regulation ("[m]any subjects [in Luban's book] have little to do with conventional legal ethics"). But Luban's point is not that the ABA, a private organization has authority to set regulatory standards for government lawyers. (Luban knows the difference between government and a trade association.) Rather, it is that Model Rule 2.1 states a moral ideal to which lawyers ought to aspire or, more strongly, it states an ethical obligation for lawyers that arises from the foundational normative commitments of the role.

At its foundation, lawyering is about the morally freighted choice to govern by legal means, rather than by command-and-control directives. The significance of this choice is related to the human dignity of the subjects of law. Legal ethics is thus informed by the morality of governing -- political ethics, as I have argued, as distinct from the ethics of ordinary moral life. Silver says he would like more analysis of concrete problems and less philosophizing, and I suppose that is his prerogative, but to the extent a lawyer is thinking about why her professional life is worthy of respect from a moral point of view, this is a powerful answer that deserves to be taken seriously. And, in practical terms, it may make a significant difference. Silver argues that "laws, regulations, and professional norms have limited power to constrain highly placed officials who are bent on circumventing them." To a large extent, that may be a self-fulfilling prophesy. If lawyers think legality and the rule of law is a sham, nothing more than a mask for the exercise of raw power, then they will agree with Silver that laws have no power to constrain. But there are lawyers who take the rule of law seriously, and have refused to approve the actions of highly placed officials bent on circumventing the law. Jack Goldsmith is one example, and Marty Lederman had an excellent post a couple of days ago on Dan Levin, another lawyer in the Office of Legal Counsel who refused to provide legal cover for the Bush administration's torture policies. These are examples of lawyers who believe that laws do have the power to constrain. Surely there is something practical and important in a conception of legal ethics that can differentiate between the lawyering of Dan Levin and John Yoo.

Welcome to Our Newest Co-Blogger -- Alice Woolley

2008-06-24T13:11:09-04:00

I'd like to be the first to welcome our newest co-blogger, Prof. Alice Woolley of the University of Calgary. Alice writes on legal ethics from the perspective of the law governing lawyers, and economic, regulatory, and moral theory. She's the author of a ton of articles in leading Canadian law reviews on both legal ethics and energy regulation and policy (an area in which she practiced for seven years before becoming an academic), and is the lead editor of forthcoming casebook on legal ethics in Canada. She has an LL.B. from the University of Toronto and an LL.M. from Yale, so we welcome her cross-border as well as her interdisciplinary perspective on legal ethics.

Leaving the Law

2008-06-24T11:13:19-04:00

Maybe it's a symptom of our therapy-driven society, or maybe it's a symptom of how many unhappy lawyers are paralyzed by inertia, but it seems strange that we need a counseling service designed to coach lawyers on finding happiness by leaving the profession. The WSJ law blog report is here. I found the service's blog, which cites, as an inspirational example, a lawyer who now makes baby blankets for a living. I'm guessing that the forthcoming book, The Unhappy Lawyer, will not be an ideal law school graduation gift, unless the particular graduate is already jaded enough to appreciate the advice, "Get out now! Try your hand at sewing!"

Partisanship in DOJ Hiring

2008-06-24T11:07:12-04:00

I've posted previously on allegations of political bias in the Justice Department, and have argued that we have to be careful with slinging around the term "partisanship" too easily, since the President surely has some latitude, as a normative as well as a legal matter, to direct executive branch agencies to pursue certain priorities and not others. Suppose the President has decided, as a matter of policy and because he believes he has a democratic mandate to do so, to step up enforcement of immigration laws in order to enhance border security. Would there be anything wrong with high-level political appointees -- at central Justice as well as US Attorneys -- directing prosecutors to exercise their discretion to devote more time and resources to immigration enforcement? I don't think so, even if this priority is "political" in the sense that it lines up with the preference of one political party.

Still, there have to be some limits on what the President and his appointees can direct career agency lawyers to do. There are legal prohibitions on taking political affiliation into account in making personnel decisions -- e.g., 5 C.F.R. § 4.2 ("No person employed in the executive branch of the Federal Government who has authority to take or recommend any personnel action . . . shall make any inquiry concerning the race, political affiliation, or religious beliefs of any such employee, eligible, or applicant. . . . No discrimination shall be exercised, threatened, or promised by any person in the executive branch of the Federal Government against or in favor of any . . . applicant for a position in the competitive service because of his race, political affiliation, or religious beliefs, except as may be authorized or required by law). But what are the normative limitations?

According to an article in the Washington Post (hat tip to TPM Muckraker) the DOJ Inspector General, Glen Fine, is expected to release today a report detailing political bias in the administration of the DOJ's prestigious honors program. While we don't yet have the full report, the WaPo summary indicates that applicants were rejected for honors program positions because of affiliations with liberal interest groups or clerkships with Democratic judges. So, what's wrong with that?

Leaving aside the DOJ regs for the moment (I don't know whether it would be discrimination on the basis of "political affiliation" to refuse to hire someone who had clerked for, say, Judge Reinhardt on the Ninth Circuit), are there not considerations of efficiency and commitment to the mission of the agency that would justify hiring lawyers who share the President's priorities? Private employers exercise this kind of judgment all the time. In fact, law students are advised not to talk too much about pro bono opportunities, lest employers get the idea that they're not deeply committed to spending 2700 hours a year on M&A or hedge fund matters. Employers understandably want employees who get behind the mission of the organization.

To this one frequently hears the argument that government is different -- lawyers for the government should be neutral, non-partisan, impartial. But do we really believe that? Most government policies are normatively non-neutral. Is anyone surprised that the Bush administration was less vigorous in enforcing environmental, civil rights, and firearms laws that a Gore or Kerry administration would have been? This raises the obvious response to the "neutrality" argument, which is that the President's enforcement-priority decisions are legitimate because they are traceable to a democratic mandate. (Yes, I know it's a bit of a stretch to call a 50.1% margin of victory a "mandate," and I'm not about to get into a debate on the 2000 election and Bush v. Gore, but these are details -- the point is, the President can claim democratic legitimacy for these decisions; whether he can make good on that claim is another matter.)

I think the key normative idea regarding government lawyers is not that they work for the government, but that they are lawyers. Emphasizing the "lawyers" bit underscores the presence of another ideal, as a counterpoint to democratic legitimacy -- namely, the rule of law. Democracy isn't just majority-rules; it's also government by laws. Lawyers are not merely government officials; they are government officials with a particular responsibility of fidelity to the law. While the President is entitled to make non-neutral enforcement priority decisions, it is the job of lawyers to ensure that the President's agenda is carried out within the limits of the law.

I'm not sure how this is going to play out in the context of the Honors Program hiring. We'll have to wait for the Inspector General's report. But as we start to see more results from the investigations of the Alberto Gonzales-era scandals at the DOJ, we will probably continue to see more tension between the ideals of democratic process legitimacy and the rule of law.

Any legal ethics types in Ayrshire or London?

2008-06-20T00:47:00-04:00

I'm heading there in early July, so if any legal ethics types want to talk ethics, shoot me an email. (Yeah, a busman's holiday, but I enjoy this stuff.)

The affidavits in the Charles Hood case: allegations implicating dozens of lawyers

2008-06-20T00:38:25-04:00

I've been following the Charles Hood case, but hadn't been able to read the source documents. I tracked them down finally. You can find them here at the Texas Defender website. You will want to read the affidavits in the back of the filing.

In a nutshell, the testimony is that the prosecutor and judge were romantically involved and that dozens of local lawyers knew it and were afraid to reveal it over the years. According to the testimony, the local lawyers were terrified of calling the judge and prosecutor on their behavior. It was partly fear and partly the lack of definitive proof.

It's one thing to pretend the rumors don't exist if you're appearing before the judge on a small matter on a law and motion calendar. But for the entire legal community to ignore it in a capital defense case with a death verdict is an appalling story. There will also be hard questions for Hood's defense team, which concedes that they were aware of the rumor back at the time of the trial.

And if the prosecutors' office that was pushing for execution this week includes lawyers who knew of the romantic relationship, they ought to be disciplined. If the testimony holds up, the behavior of the judge and prosecutor may even have committed criminal acts.

These aren't allegations; these are claims supported by testimony -- albeit largely second-hand testimony. At the same time, I must stress that we haven't heard the testimony from the accused judge or prosecutor, and we'll want to hear that. (Will they say that they had an intense friendship but nothing romantic? Will they deny any relationship at all?)

But if the affidavits are supported, we will need to do a serious study of the social psychology that caused this travesty.