Category Archives: Legal Profession
Jun 3, 2014 Rebecca RoipheLegal Profession
Sida Liu, Lily Liang, & Terence C. Halliday,
The Trial of Li Zhuang: Chinese Lawyers’ Collective Action Against Populism, 1
Asian J.L. & Soc’y (forthcoming 2014), available at
SSRN.
Perhaps all the lawyer jokes are not such bad a thing. Rather than trying to make lawyers more appealing, we ought to protect the profession from the sometimes-inevitable popular resentment. By telling the shocking story of defense attorney Li Zhuang’s prosecution in China, Sida Liu, Lily Liang, and Terence Halliday remind us of the power of professionalism and the need, at times, to resist both government pressure and public anger at lawyers.
In America, we are living through a time of radical change in the profession and in professional education. The market seems, in many ways, to be winning out. The concept of professionalism is assuming a sort of hazy anachronistic aura. Some scholars even declare the notion defunct and celebrate its demise. While the profession has always experienced itself in a state of crisis, the suggestion that we abandon the notion of an independent legal profession is relatively new. Perhaps it is changes within the profession, such as its growing size and competitiveness, which have led to the decline in professionalism. Broader cultural trends toward consumerism and away from collective approaches to social problems must also contribute to this shift. If we accept the general momentum, the question remains whether to embrace or resist it. Continue reading "The Forgotten Promise of Professionalism"
May 7, 2014 Eli WaldLegal Profession
Context matters to lawyers. The representation of clients, advice-giving, advocating, drafting, and negotiating—indeed, the very exercise of professional judgment—all take place in a context that shapes and informs lawyers’ decision-making. Context, however, plays only a minimal role in the American Bar Association’s Model Rules of Professional Conduct (“Rules”). While some comments to the Rules often provide contextual examples, an underlying theme of the Rules is their universal appeal: the Rules are explicitly meant to be a one-size-fits-all model for all lawyers, irrespective of context. Some argue that the universal nature of the Rules renders them conceptually anachronistic and practically useless, and have called for the promulgation of rules of conduct more in tune with the increasingly diverse realities practicing lawyers face. Such a contextual critique consists of two steps. The first is empirical. Promulgating rules that meaningfully address the realities that lawyers face in practice requires an empirical understanding of these very realities. The second step is normative. Once empirical evidence is gathered, one has to decide what to make of it and whether and how to incorporate it into the Rules.
Lawyers in Practice: Ethical Decision Making in Context, a new volume of empirical work edited by Leslie Levin and Lynn Mather, significantly contributes to this universal-contextual discourse. It consists of sixteen excellent chapters examining in detail lawyers’ decision-making processes across thirteen different legal contexts including family, immigration, and personal injury, as well as corporate, securities, and IP law. “[T]he organized bar and many law schools,” write the editors, “continue to focus their discussion of legal ethics primarily on bar rules of professional conduct. That approach, this book suggests, is a serious mistake.” (P. 4.) Such a focus on the Rules is a mistake, assert Levin and Mather, because it ignores the importance of context: “[t]he chapters in this book look at lawyers’ decisions from the bottom up—that is, from the perspective of lawyers in practice—and not from top-down rules that often reveal more about the aspirations of the profession than the reality.” (P. 11.) “We hope,” conclude the editors, that “this book will help narrow the gap between what sociological scholars are learning about lawyers’ ethical decision making in context and the legal profession’s approach to the teaching and regulation of lawyers.” (P. 21.) Continue reading "The Importance of Context"
Apr 4, 2014 W. Bradley WendelLegal Profession
Every criminal defense lawyer has been asked The Question: “How can you defend those people?” Even lawyers who do not represent persons accused of crimes have undoubtedly had to deal with the indignation directed at the lawyers representing the most recent high-profile, presumed-guilty defendants—O.J. Simpson, the detainees at Guantánamo Bay, alleged “American Taliban” terrorist John Walker Lindh, the Oklahoma City federal building or Boston Marathon bombing suspects, the man accused of being the guard known as “Ivan the Terrible” at the Treblinka concentration camp. The Question is about moral agency. How can you, an ordinary person, not only associate with but also actively assist terrible people in escaping punishment for terrible crimes?
Abbe Smith and Monroe Freedman have both written eloquently in answer to The Question. Now they have compiled a number of essays—some in the form in which they were previously published, some updated for this book, and some entirely new—written by advocates and academics who take seriously the problem of giving an account for one’s actions within a professional role. All of the essays, in one way or another, address the persistence of moral agency. Inside a criminal defense lawyer there is an ordinary person, with ordinary-person values, committed to non-violence and respect for the rights of others. What is it like to be that person? In this way the essays move beyond justification to consider the issue of motivation. In a classic essay reprinted in this recent book, Barbara Babcock surveys a number of responses, including: Continue reading "Defending Defending, with Integrity"
Mar 7, 2014 Susan FortneyLegal Profession
Leslie Levin, Misbehaving Lawyers: Cross-Country Comparisons, 15 Legal Ethics 357 (2012), available at SSRN.
Commentaries on lawyer discipline often refer to practice areas that are involved in grievances. Discussions of lawyer discipline devote far less attention to examining the circumstances of particular grievances or the characteristics of the lawyers facing disciplinary charges. That is one reason why I especially liked Professor Leslie Levin’s Misbehaving Lawyers: Cross-Country Comparisons. This article was published in a special issue of Legal Ethics—the preeminent international legal ethics journal.
In his preface to the issue, Richard Abel described the premise of the special issue as follows: “we can illuminate the nature of and explanations for lawyer misconduct and the relative advantages of different regulatory responses by comparing case studies of lawyers disciplined a variety of countries.” In the special issue, experts presented fascinating case studies of lawyers disciplined in the authors’ home countries. Following these case studies, Professor Levin’s essay identifies similarities and differences among the cases studies written by experts from Canada, the Netherlands, the United Kingdom, Australia, and New Zealand. Anyone interested in lawyer conduct should read Professor Levin’s essay because it provides a concise and thoughtful analysis of patterns and problems that emerge from the accounts presented in the articles in the special issue. Legal profession scholars, lawyers who defend and prosecute disciplinary cases and malpractice cases, jurists, educators, and individual practitioners can learn a great deal by reflecting on Professor Levin’s observations. Continue reading "Patterns and Problems in Professional Discipline Cases"
Feb 3, 2014 Amy SalyzynLegal Profession
Jakob Weberstaedt, English Alternative Business Structures and the European Single Market, Humboldt U. Berlin Working Paper (2013), available at SSRN.
In the last several years, alternative business structures (ABS) have been a top agenda item regarding the legal profession in the United States and Canada. Moves in Australia and England to liberalize legal markets—including the introduction of non-lawyer ownership of law firms—have inspired and influenced conversations about whether ABS should be introduced into the North American market for legal services. Most North American lawyers, however, don’t likely know much about how these overseas reforms have also fuelled the debate about ABS in Continental Europe. Fortunately, in his recent article, Jakob Weberstaedt provides an engaging account of this very issue.
Weberstaedt focuses on the reaction of the German Federal Bar to reforms introduced in England and Wales by the 2007 Legal Services Act, which allowed for law firms to be wholly-owned by non-lawyers (“English ABS”). The German reaction is, as he notes, of particular interest given both its forcefulness and the size of the German market for legal services (approximately 22% of the total revenues of the legal services sector in Europe). To provide some background for his analysis, Weberstaedt begins his article by outlining “[a] brief history of the Continental resistance to English ABS.” In this section, a number of interesting factual tidbits are offered, including the fact that, even before English ABS reforms were finalized, the German Federal Bar, via a 2006 letter from its president to a UK parliamentary committee considering the draft Legal Services Bill, made it clear that it “did not like the proposed reforms and that English ABS would not be allowed to operate in Germany.” A similarly negative position was subsequently taken by the Council of Bars and Law Societies of Europe (CCBE), which argued that provisions in a European Union directive addressing lawyer mobility would allow the Continental European bars to prevent English ABS from operating within their national jurisdictions. In turn, this analysis made its way into a response from the German Federal Bar to a 2011 American Bar Association issues paper on ABS. The background provided by Weberstaedt is both an informative summary of the events leading to the current debate about English ABS in Continental Europe and also a helpful reminder that the once-parochial issues of lawyer regulation now have an unprecedented global reach. Continue reading "Resistance is Futile?"
Jan 7, 2014 Richard ParnhamLegal Profession
Spoiler alert: This Jotwell review reveals the plot of Mitchell Kowalski’s book, Avoiding Extinction: Reimagining Legal Services for the 21st Century.
In recent years, those of us who are interested in legal services market innovation and disruption are often presented with two different types of source materials to satisfy our curiosity. First, there is blue-skies thinking—ideas that might ultimately become mainstream but not in the immediate future. Secondly, there is research, which examines innovative market behaviours, delivered by actual providers to real clients. However, what is generally missing from such works are discussions about how either of these changes will impact existing lawyers who find themselves caught up in this period of transition. And this is the main attraction of Mitch Kowalski’s approach: By writing a novel, Avoiding Extinction: Reimagining Legal Services for the 21st Century, Kowalski is able to offer a human-focused examination of these mega-market changes—from the perspectives of individual clients and private practice lawyers. Continue reading "Reimagining a New Ending to “Reimagining Legal Services”"
Nov 22, 2013 Richard MoorheadLegal Profession
Mitu Gulati and Robert E. Scott’s new book, The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design examines the pari passu clause, a clause designed to ensure a debtor’s creditors rank against each other equally. It asks why a standard clause in cross-border financial contracts remained in sovereign debt contracts after a well-known but minor judgment in a Belgian court suggested that the clause should be amended or removed. The book reveals that the majority of practitioners designing and drafting these contracts did not have a coherent and consistent explanation of the origin, purpose, or meaning of the term in sovereign debt contracts. How can it be that sophisticated legal practitioners can put forward contracts, worth millions or even billions of dollars, where they do not understand a term common to, and prominent in, the contract? And once a court decision, albeit an ‘unreliable’ ex parte Belgian decision, threatens to undermine received wisdom on the overall effect of those sovereign debt contracts, posing not insignificant risk that the clauses will be litigated, how is it that these terms remain largely unaltered? Moreover, why is the clause not removed if, as many seem to think, it performs no discernible and certainly no predictable function in the sovereign debt arrangements?
These are some of the fascinating questions explored in Gulati and Scott’s excellent book, The Three and a Half Minute Transaction. Part empirical project, part theoretical exposition of securities law, and part detective novel reaching back to Bolivia in 1870, it is a highly readable and nuanced account of how elite lawyers approach the drafting of sovereign debt contracts. The account is theoretically and empirically rich. Its conclusion is that modern legal practice poses significant challenges to the evolution of professional practice. It also raises questions about whether and how systemisation works. Systemisation is the idea that legal practice can be disaggregated into component parts and automated through processes (checklists, software and the like). As a favourite theme of innovators keen on developing legal practice beyond the inefficient artisan model— the book serves as a reminder as to how systemisation needs to cope with the complexity and stickiness of clients and markets. Continue reading "It’s the System, Stupid?"
Oct 23, 2013 Carole SilverLegal Profession
Joyce S. Sterling & Nancy Reichman, Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession, 8 Fla. Int’l. U. L. Rev. (forthcoming, 2013), available at SSRN.
Nearly twenty years ago, the Colorado Bar Association and the Colorado Women’s Bar Association published a study that identified, among other things, a significant wage gap between male and female lawyers practicing in the local Denver community: the “average woman working full-time earned only 59 cents to the dollar earned by the average man working full-time.” (P. 4.) This finding led to a commitment by the Colorado Bar to sponsor additional research on the “the mechanisms that produced the gap.” (P. 4.) To the good fortune of the Bar and the community of scholars interested in issues related to gender and the legal profession, two University of Denver professors agreed to undertake this additional research with the “expect[ation that they would]… be able to expose the sources of bias, make recommendations, and move forward to remove the barriers to women’s success in law.” (P. 4.) Thus began the collaboration by Joyce Sterling and Nancy Reichman that has produced more than 25 published articles, working papers, and presentations on the gender gap. Taking an empirical approach to the problem, they have drawn on numerous sources, settings, and theoretical frameworks, all the while with quantitative and qualitative data at the core of their work, to produce both foundational research and cutting-edge insight.
In Navigating the Gap: Reflections on 20 Years Researching Gender Disparities in the Legal Profession, one of their newest papers, Sterling and Reichman reflect on the continuing presence of the gender gap, and lament that their research has not led to the eradication of the wage gap much less other barriers to gender equality in legal practice. The article does more than lament, however. It is a call-to-arms, of sorts, that offers important ideas for advancing equality and simultaneously provides a comprehensive overview of what they have learned from their research and that of others about gender disparities in the legal profession. The dual focus of looking back and forward makes this article particularly significant. It offers an entrée to those unfamiliar with research about gender inequality in the legal profession and a map for those interested in joining research with activism. Continue reading "The Persistent Gender Wage Gap in Legal Practice: What We Know and What to Do"
Sep 24, 2013 John FloodLegal Profession
The leadership role in law firms and other professional service firms (PSFs) tends to be either a residual characteristic or is defined by the “great man” ideal (think of Paul Cravath and his vaunted system). Modern versions exist still: the recently departed Joe Flom of Skadden and Marty Lipton of Wachtell were exemplars of visionary law firm leaders who created great law firms. However, since around 1985, PSFs and law firms have become more anonymous in their leadership as the bureaucratized firm supersedes the charismatic individual.
Usually when scholars study PSFs—and for purposes of this review I focus on law firms—the entire firm is the unit of study rather than its management or governance. If we think of Nelson’s Partners with Power, Starbuck’s Keeping a Butterfly and an Elephant in a House of Cards, or Wald’s Smart Growth: The Large Law Firm in the Twenty-First Century, leaders, senior partners, and others flit by, but they essentially subsist in an environment that is expressed as collegial and lacking in explicit hierarchy. Continue reading "How Are Professional Service Firms Governed?"
Aug 7, 2013 Sida LiuLegal Profession
Steven A. Boutcher and Carole Silver, Gender and Global Lawyering: Where Are the Women?, Ind. J. Global Legal Stud. (forthcoming 2013), available at BePress.
Globalization has been a hot topic for the legal profession for many years, but analysis of global law firms has mostly ignored something increasingly conspicuous in research on domestic law firms: gender. When I was doing fieldwork in American law firms’ China offices 5-6 years ago, I could not help but notice a fascinating phenomenon: most of these offices were staffed by an overwhelmingly large proportion of female lawyers, usually at the level of associates and legal assistants. This was in sharp contrast to the situation in Chinese domestic law offices, where women accounted for less than 20% of the lawyer workforce (see Ethan Michelson’s paper on gender inequality in the Chinese legal profession). I have been thinking about this puzzle for years and pondered some possible explanations, until I read the path-breaking article that Steven Boutcher and Carole Silver recently wrote on gender and global lawyering.
In this article, Boutcher and Silver ask a basic question: Does globalization affect women differently than men in terms of status attainment in the law firm? The answer, not surprisingly, is yes, but the interesting part is how, and how much it varies from one place to another. Based on an original dataset of a sample of 55 U.S.-based law firms with overseas offices collected by Silver, Phelan, and Rabinowitz in 2006-2007, the authors examine the distribution of 6,211 lawyers in a total of 243 offices in seven different jurisdictions, namely, Belgium, China (mainland), England, France, Germany, Hong Kong, and Japan. The article classifies lawyers according to three variables: gender (male and female), education and licensing (local lawyers, U.S. expats, and other expats), and status in the law firm (partners, associates, and counsel). Then it uses a number of crosstabs to compare the status of men and women across jurisdictions, focusing on the issue of partnership. Continue reading "From Status to Mobility: On Gender and Global Lawyering"
