Category Archives: Legal Profession
Oct 19, 2021 Eli WaldLegal Profession
Structural forces, including workplace organization and policies, are a documented cause of inequality. These forces disproportionately burden and therefore contribute to the underrepresentation of women and lawyers of color in positions of power and influence, systematically reproducing the male, Caucasian hierarchy atop BigLaw’s equity partners. The lingering impact of these structural forces—counteracting the effectiveness of diversity, inclusiveness, and equity initiatives—has been a problem for BigLaw leadership for years. But what if, contrary to conventional wisdom, structural forces can instead increase—or at least not disadvantage—equality? In Accidental Feminism, winner of the American Sociological Association’s Distinguished Book Award from the Sociology of Law Section, University of California at Irvine law professor Swethaa Ballakrishnen explores this very intriguing question.
Presenting original empirical work collected in 2011-15, Ballakrishnen documents how, without adopting well-intentioned equality policies, India’s elite large law firms have become “accidental” feminist organizations featuring gender parity in their senior and equity partner ranks. According to the book, this surprising development was the result of a confluence of circumstances, “structural conditions that fortuitously have come together to create environments of emancipation for . . . women lawyers.” (P. 2.) First is organizational novelty: India’s elite law firms are, relatively speaking, young institutions, relying on a neoliberal attorney workforce educated in progressive law schools. Thus both the lawyers and the law firms are comparatively open-minded, even supportive of gender equality in the workplace. The second condition is globalization complete with an influx of capital and increased international demand for Indian legal services. Third and relatedly, accidental feminism depends on a receptive interactional global audience – India’s BigLaw are locally organized institutions doing work for global entity clients. Fourth, these conditions are all taking place in a particular cultural moment of close-knit family units and a caste-dependent labor force, which supplies women (and men) equity partners with affordable housework and childcare support system. Hence, Ballakrishnen establishes that India’s BigLaw’s feminism was accidental but not random. Continue reading "Accidental Equality"
Sep 21, 2021 Sida LiuLegal Profession
What would you call it when a former government official joins a corporate law firm? This is commonly known as revolving doors between market and politics in the United States but, in France, it has a different name: pantouflage. As Antoine Vauchez and Pierre France explain in their book The Neoliberal Republic: Corporate Lawyers, Statecraft, and the Making of Public-Private France, pantouflage “bears a different meaning than revolving doors as it does not imply moving back and forth but rather a departure from the public sector.” (P. 55.) Such a departure of professionals from the public sector is also a familiar scene in other countries, such as China, where hundreds of mid-career judges, procurators, and other state officials leave their government or judicial posts to become lawyers in private firms every year.
Most existing studies on these professionals traveling between the public and private sectors emphasize either the personal benefits that they get from their “political embeddedness” or the economic consequences of their brokerage between state and market for their clients. Vauchez and France also observe similar dynamics in France, yet the focus of their book is on the structural consequences of pantouflage, namely, the blurring of the “border between public and private.” (P. 132.) Drawing on Michael Walzer’s theory of normative social differentiation, which proposes that the democratic space is made possible by the separation of the public sphere from other social , the authors argue that “the blurring of the public-private dividing line…calls into question the very conditions in which the public interest is defined.” (Pp. 132-133.) They even pose the question of whether the rise of pantouflage since the 1990s has punched “a black hole in democracy.” (P. 117.) Continue reading "Pantouflage, Revolving Doors, and Space Travelers"
Aug 4, 2021 Laurel TerryLegal Profession
As readers may have heard, the National Conference of Bar Examiners (NCBE) recently approved the preliminary recommendations of its Testing Task Force and is committed to developing “the next generation of the bar exam.” What readers may not know, however, is that the NCBE is not alone in its endeavor to consider licensing requirements: regulators elsewhere in the world, including in Canada, are also examining the issue of admissions requirements and how they should evaluate lawyer competence. As the NCBE develops its “next generation” bar exam and as U.S. jurisdictions decide whether and how to change their admissions rules, stakeholders may find it thought-provoking to consider the excellent report that Jordan Furlong produced for the lawyer regulatory body in the province of Alberta, Canada. This report is entitled Lawyer Licensing and Competence in Alberta.
Similar to the preliminary recommendations recently adopted by the NCBE, and the reports on which the NCBE’s action was based, the Alberta Lawyer Licensing and Competence report examines what lawyer “competence” means, how it could be fostered and measured, and the proper role of the regulator. Although Lawyer Licensing and Competence was written for Canadian regulators, it provides insights that may prove useful to U.S. lawyer regulation stakeholders on issues related to lawyer competence, the role of a regulator, legal education, and the NCBE’s January 2021 decision to develop the next generation of the bar exam. Continue reading "Rethinking Admissions Requirements: It’s a Global Phenomenon"
Jul 6, 2021 Elizabeth ChamblissLegal Profession
State supreme courts claim the exclusive, inherent authority to define and regulate the “practice of law.” Based on this authority, courts have enjoined as the unauthorized practice of law (UPL) all manner of potentially helpful legal assistance by nonlawyers, including counseling, advising, and assistance with documents, as well as representation in court. When it suits them, however, it turns out that trial courts accept extensive nonlawyer assistance behind the scenes, including nonlawyer counseling of clients, preparation of pleadings, and discrete courtside assistance. Courts may even encourage and institutionalize the role of nonlawyer advocates through designated workspace and workflows. But they like to keep it on the down low.
Of course, it is not the “unauthorized” practice of law if courts allow it. And courts’ claims to regulatory authority are strongest regarding who appears before them. But what are the implications of an unacknowledged nonlawyer assistance regime? This is the question posed by Jessica Steinberg and her comadres in their study of domestic violence courts’ “quiet partnership” with a “shadow network” of nonlawyer advocates “to substitute for the role counsel has traditionally played.” (P. 1316.) Continue reading "PL on the DL: Domestic Violence Courts’ “Quiet Partnership” with Nonlawyer Advocates"
Jun 17, 2021 Rebecca RoipheLegal Profession
Jeremy Waldron,
Damned Lies (Mar. 4, 2021), available on
SSRN.
Among the damage left in the wake of the Trump administration is the degradation of truth. Of course, Donald Trump is not the first president to lie. He has, however, been successful in his assault on many institutions that Americans trust to deliver facts. Trump’s lies about the election results not only left many of his supporters with a false view of reality, but also cast doubt on election officials, courts, and procedures designed to verify the votes. In his new essay, Damned Lies, Jeremy Waldron helps dissect and categorize lies. In the process, he illustrates the complex relationship lawyers have to truth. If Trump damaged democracy with his disregard for facts, what about the lawyers by his side? Should they be disciplined or simply condemned for their part? Waldron does not answer these questions but he provides those of us who are interested in them with a sophisticated way to approach the problem.
Waldron’s essay seeks to answer the central question, what makes a lie particularly toxic in public life. What, in his words, makes it a “damned lie”? Of course, there is a legal question lurking beneath his excursion into moral philosophy: What sort of lies should our legal system tolerate? Do lawyers have a greater obligation to the truth than others? When, if ever, is it okay for lawyers to lie? Continue reading "Liar Up"
Jun 3, 2021 Susan FortneyLegal Profession
In 1999, then-Professor Patrick Schlitz published a provocative article called On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession.
Fast forward 20 years, to the results of an empirical study conducted by Professors Stephen Tang, Vivien Holmes, and Tony Foley and discussed in their article, Ethical Climate, Job Satisfaction and Wellbeing: Observations from an Empirical Study of New Australian Lawyers. This article examines the role ethical climate plays in influencing ethics and the connection between perceived ethicality and lawyer satisfaction. With heightened concern related to lawyer well-being and remote work, I commend the authors for conducting an ambitious study and urge you to read their article to learn more about their findings and recommendations. Continue reading "Why Ethical Climate Matters in Newly Admitted Lawyers’ Workplaces: An Empirical Examination of Ethical Climate, Job Satisfaction, and Lawyer Wellbeing"
May 5, 2021 W. Bradley WendelLegal Profession
Suppose you became aware that a person advocated for doing abhorrent things, and if given the opportunity, would provide assistance to others who directly did those things. Suppose, for example, that this person thought that one way to deter refugees from seeking asylum in the United States would be to forcibly separate children from their parents, locking children in cages in squalid camps that would shock Charles Dickens, and making it impossible to reunite families subsequently. If this person loudly advocated for these things at a bar, you might get up and move to a different barstool. If this person were your neighbor, you might avoid making eye contact with them on the street. If this person were a member of your family, you would dread Thanksgiving dinner.
If this person were a high-ranking government lawyer, however, they would likely suffer no adverse consequences in their career and might even be promoted to a higher position. This is the concern animating Leah Litman’s powerful and passionate recent article – a contribution to a symposium on Jack Balkin and Sandy Levinson’s book, Democracy and Dysfunction. Networks of elite lawyers are so conflict-averse that they look the other way when members of their club participate in actions that threaten fundamental democratic and human-rights norms. (Pp. 305, 307.) They have an opportunity to sanction immoral conduct by “withholding certain future government appointments and promotions from the lawyers” (P. 307), but instead they welcome these wrongdoers back into the fold of the respectable legal profession. (P. 317.) There are some things one could do that would result in ostracism and exclusion from polite society, so “[w]hy is enabling racist and cruel family separations not on the prohibited list of actions?” (P. 318.) Continue reading "Canceling Lawyers"
Apr 5, 2021 Francesca BartlettLegal Profession
In studies of the legal profession, we examine what lawyers do within and to the justice system in which they work in specific and conceptual ways. We also consider what the work does to lawyers. And, as many have noted, these two are intertwined and bi-directional. Clare Gumby and Anna Carline provide a fascinating perspective on this relationship by applying affect theory to the results of their interviews with criminal attorneys working on rape cases in England. The study reports on findings from 39 interviews with barristers from across England who defend or prosecute rape cases (the vast majority of whom regularly act in both capacities).
Gumby and Carline explain the theory they use to understand their results:
Affect is used to describe emotions (e.g., anger and fear) but also encompasses bodily sensations (e.g., shame, guilt and excitement) and other ineffable feelings and senses. These may be positive or negative, fleeting or sustained, experienced consciously and unconsciously and may sit outside of language in terms of being able to articulate. Here, we use affect theory, with its focus on relationality and embodiment, to understand how barristers can be transformed by their work and aim to move jurors—recognizing the body’s capacity to affect and be affected.
Defending or prosecuting in criminal prosecutions alleging sexual violence evokes emotions in us all. “Outsiders think all of it sounds pretty awful,” says one barrister. Sociological studies of occupations “that society views as unpleasant, disgusting or morally questionable” have been considered against a socially constructed idea of “dirty work.” Gumby and Carline adopt this lens to understand criminal lawyers’ construction of their own work. Specifically, they consider acting in rape cases as dirty work for its association with predominantly female victims as sexually tainted according to persistent gendered conceptions, working with those accused of socially stigmatised offending, combative adversarial styles and getting “physically dirty” where there is a necessity of proximity to “blood, semen and vomit and in the most extreme cases, death and decay.” Continue reading "Feeling Dirty: Emotional Taint and Use of Emotion as an English Criminal Barrister"
Mar 9, 2021 Veronica Root MartinezLegal Profession
James A. Fanto,
The Professionalization of Compliance: Its Progress, Impediments and Outcomes (Dec. 7, 2020), available on
SSRN.
James A. Fanto’s important new work, The Professionalization of Compliance: Its Progress, Impediments and Outcomes addresses a concern that I have been thinking about for quite some time: whether it is appropriate to consider people working in the field of compliance to be “professionals.” Within compliance circles, the phrase “compliance professional” is used constantly. Yet, as Fanto highlights in his excellent work, it is not at all clear that those engaged within the compliance industry meet the traditional hallmarks one finds associated with professional activities. Fanto’s article addresses this puzzle head-on in an interesting and thoughtful manner.
On the one hand, Fanto explains that those currently working in the field of compliance are aware that they “are engaged in a special activity,” and they have “formed organizations of compliance practitioners to share their specialized knowledge and practices.” The Society of Corporate Compliance and Ethics explains that the group “supports the compliance and ethics profession with educational opportunities, certification, networking, and other resources.” Indeed, their certificates send particular signals within the industry and are a way to demonstrate increasing knowledge and expertise in compliance. And yet, it is not at all clear what the boundaries of a compliance profession would be or who would count as “in the profession” as against those who work “in support of the profession.” Continue reading "The Compliance Professional? An Interesting Puzzle"
Feb 8, 2021 Amy SalyzynLegal Profession
Lawyers need to be competent. No one would disagree with this simple fact. More contentious is the question of how to ensure that lawyers are, in fact, competent. On the pre-entry side of things, controversies have frequently erupted over law school curricula and bar exams. In the area of post-entry competence, recent years have seen lively discussions about how best to measure and ensure good lawyering. Within this dynamic context, Pooja Parmar’s recent article Reconciliation and Ethical Lawyering: Some Thoughts on Cultural Competence is an important contribution to the growing scholarly literature on what it means to be a competent lawyer in the 21st century.
The focus of Parmar’s article is the Canadian legal profession’s response to the Calls to Action by the Truth and Reconciliation Commission of Canada (“TRC”). More specifically, Parmar focuses on the “particularly noticeable” attention given “to cultural competence or skills generally associated with the idea.” (P. 532.) For example, in response to the TRC Calls to Action, the Law Society of Alberta and the Law Society of British Columbia have both now instituted mandatory Indigenous cultural competence training for all lawyers. Continue reading "Reconciliation and the Limits of Cultural Competence"
