Category Archives: Legal Profession
Jan 8, 2021 Carole SilverLegal Profession
In the wake of the killing of George Floyd, many U.S. law schools published messages supporting social justice and anti-racism, including promoting the role of law schools in educating students to become agents for change. These statements were generally outward-facing, aimed at addressing the experiences of people of color in communities and organizations outside of the schools. But internally, law schools reflect the racial and gender hierarchies permeating the legal profession and society generally, and this in turn frames their role in shaping future lawyers’ perceptions about who belongs in the legal profession. The faculty exerts an overarching influence on this question of belonging both through its own composition and in the language and agenda communicated through teaching.
Meera Deo explores these dynamics in her book, Unequal Profession, which focuses on women of color law professors. By capturing the voices of this particular group of law professors and contextualizing them in an organizational and comparative context, the book makes a crucial contribution to understanding the divide between the experiences and career paths characteristic of women of color and those of their colleagues. Continue reading "Inequality in the Legal Academy – Gaining Insight into the Unequal Profession"
Nov 25, 2020 Scott CummingsLegal Profession
In Regulating Mass Prosecution, Irene Joe seeks to shift the framework for assessing the causes of and solutions to mass incarceration, by spotlighting the role of prosecutors and their ethical duties to maintain fairness, loyalty, and competence. The core thrust of Joe’s argument is that prosecutors should be understood to have ethical limits on the pursuit of charges against defendants based on the systemic impact of charging decisions in producing public defender case overload. Moving beyond well-rehearsed arguments about the prosecutor’s duty to seek “justice,” Joe adopts a systematic ethical approach, focusing on the “role that the prosecutor plays in creating” the caseload crisis (P. 1183). She thereby makes a novel link between the ethics of prosecution and that of public defense, illuminating the “cumulative effect that . . . discretionary charging decisions have on the public defender’s ability to provide ethical and professional representation.” (P. 1184.) Having made this link, she then turns to the ethics rules as “a sword and a shield for reformist prosecutors to use in addressing the caseload crisis in indigent defense.” (P. 1184.)
In her ethics analysis, Joe is mindful of the deeply complex nature of the prosecutor’s charging decision: an exercise of discretion in which the prosecutor determines to pursue charges supported by probable cause. As Joe points out, in making this decision, a prosecutor is generally motivated to act by the duty to advance the interests of justice, but other factors sometimes creep in, such as implicit bias or the prosecutor’s self-interest in achieving a high “win” rate or currying favor with the judge. Where Joe fundamentally departs from convention is by showing how individual charging decisions permit prosecutors to shape “the size and scope of the criminal justice system,” thereby placing the public defender in a “reactive” posture, unable to adequately control his or her caseload—and thus undermining defendants’ access to justice. Joe recognizes, of course, that prosecutors do not deal exclusively with public defenders, whose work focuses on the representation of indigent defendants constitutionally entitled to counsel. What Joe wants us to appreciate is that prosecutorial discretion, by affecting the aggregate number of cases in the system, has particular impacts on the caseloads of public defenders, who must take cases assigned to them in this expanding system and are heavily overburdened. Continue reading "Are Prosecutors Ethically Responsible for Producing Defender Overload?"
Oct 23, 2020 Eli WaldLegal Profession
Bruce A. Green,
Bar Authorities and Prosecutors,
Oxford Press Handbook of Prosecutors and Prosecutions (Ronald F. Wright, Kay L. Levine, and Russell M. Gold eds., 2020), available at
SSRN.
Bruce Green’s new book chapter explores the regulation of prosecutors in the United States. It convincingly argues that, although the ABA Model Rules of Professional Conduct (“Rules”), as adopted by the various states, formally apply to all lawyers, they have little practical impact on prosecutors’ practice.
The Rules have limited practical significance for prosecutors for three related reasons. First, many of the Rules do not apply to prosecutors’ practice realities. Some of the inapplicable Rules are intuitive. For example, Rule 1.5 can’t apply to prosecutors because prosecutors do not charge clients fees, and Rules 7.1-7.3 do not apply because prosecutors neither advertise not solicit for their services. Professor Green establishes in a fascinating section, however, that even Rules that could apply to prosecutors, such as Rule 1.6 (confidentiality), Rules 1.7-1.10 (conflicts of interest) and Rule 1.1 (competence) have been construed narrowly and generically to mirror other obligations that apply to prosecutors such as criminal procedure rules. Second, Rules that do directly apply to prosecutors’ practice, such as Rule 3.8 on prosecutors’ special responsibilities, and Rule 4.2, which forbids lawyers from communicating directly with represented individuals, have been construed narrowly to merely codify prosecutors’ constitutional obligations. The third and final problem is one of enforcement. The Rules are hardly enforced against prosecutors—giving these lawyers particularly wide berth. Continue reading "The Future of Attorney Regulation"
Sep 28, 2020 Robert GordonLegal Profession
I teach at a school most of whose graduates take jobs, at least for a few years, as associates in one of the 100 largest corporate law firms. Until their first stint as summer clerks, and even for some time thereafter, most of them know very little about the work firm lawyers do. Law schools don’t do much to enlighten them on these matters. Scholarly treatments of the social effects of business lawyering are rare. We have, of course, plenty of scholarship on substantive fields of business law – corporate law, tax, securities, intellectual property, and so forth. Sometimes practitioners come into our classrooms to help students understand how to structure corporate deals, such as a merger or initial public offering. These are useful forms of training, but not much help if we are trying to understand the social and economic contributions of corporate lawyers. What is their role in society? What value do they add or as their critics would ask, subtract? Katharina Pistor, The Code of Capital: How the Law Creates Wealth and Inequality, identifies both the positive and the negative in their work.
The business lawyers I habitually talk to tend to respond rather vaguely to questions about their social functions. They identify themselves as among the professionals in the legal-and-financial-services industry like accountants, underwriters, or insurers who provide technical services to implement business decisions and deals of their clients. “We grease the wheels of capitalism” is a common phrase, or, as a law firm partner interviewing me for a job once put it, “We are the pants pressers for American business.” This formula identifies the lawyers’ role as auxiliary to the real movers and shakers, the entrepreneurs and investment bankers and managers of capital. Other business lawyers describe their job primarily as that of risk-managers: they help their clients identify sources of “legal risk,” such as potential adverse litigation, or regulatory and tax consequences of decisions. Competent risk managers, of course, aren’t just doom-and-gloom merchants: they try to help their clients structure their dealings so as facilitate their taking “good risks” and to avoid or minimize “bad risks.” Still others – often litigators – identify corporate lawyers with the classic paradigm of the libertarian champion of the free market, or the heroic defense lawyer resisting the authoritarian state and the greedy faux-populist plaintiffs’ bar. Rather less flattering accounts are sometimes heard from businesspeople who cast lawyers as operators of a vast protection racket, creators of dense complex webs of regulation that their expensive technical skills are then required to navigate. Continue reading "Masters of the Code"
Aug 7, 2020 Aiden ParkLegal Profession
The splendors of rural America outnumber the stalks of wheat that spill down the Great Plains, the time-worn, sleepy peaks of Appalachia, the saguaro cacti whose sunbaked resolve outlasts generations of western settlers. Indeed, approximately 97 percent of U.S. land is within rural counties, capturing wonders throughout this nation’s countryside. But while a large swatch of America preserves the pastoral, one aspect is noticeably absent from this bucolic ideal: lawyers.
In Rural Practice as Public Interest Work, Hannah Haksgaard first establishes that there is a profound lack of rural lawyers, especially when compared to the “glut of lawyers in urban areas.” (P. 213.) Such a dearth exacerbates rural residents’ inability to access justice and to satisfy crucial legal needs. Essentially, Haksgaard asserts, there is a need for every type of attorney in rural areas: prosecutors, public defenders, immigration attorneys, divorce lawyers, bankruptcy lawyers, trusts and estate lawyers, and many more. Continue reading "Reframing Rural Private Practice Work"
Jul 9, 2020 Laurel TerryLegal Profession
Leslie C. Levin,
The Politics of Lawyer Regulation: The Malpractice Insurance Example, 33
Geo. J. Legal Ethics __ (forthcoming, 2020), available at
SSRN.
If you ask most individuals why lawyers have a monopoly on the provision of legal services and why lawyer regulation exists, I suspect they would answer that lawyer regulation is necessary for “client protection.” Assuming this is correct, it is ironic that most U.S. jurisdictions do not require one of the most basic kinds of protection. Unlike lawyers in many other countries, most U.S. lawyers do not have to carry malpractice insurance, which could protect clients in the event of lawyer error.
Although several U.S. states have recently examined the issue of whether malpractice insurance should be mandatory, only two U.S. jurisdictions currently require lawyers to carry professional liability insurance. Oregon has had this requirement since 1977, and Idaho has had this requirement since 2018. Professor Leslie Levin’s article on The Politics of Lawyer Regulation: The Malpractice Insurance Example, which will be published soon in the Georgetown Journal of Legal Ethics, is a case study that examines and compares the mandatory malpractice insurance initiatives in these and other states. Her thorough and insightful article makes a compelling read, not only for those who are interested in the malpractice insurance issue, but also for those who are interested in other lawyer regulatory issues and wonder why some reforms succeed, whereas others fail. Continue reading "Understanding Lawyer Regulation Initiatives: Is there a Sweet Spot for Achieving Client-Focused Lawyer Regulation?"
Jun 22, 2020 Elizabeth ChamblissLegal Profession
Consider the following hypothetical:
One day before you leave for work, an officer knocks on your door and says that there have been drug sales reported on your block. He says you don’t have to let him in, but that he’s checking the homes in the suspected area, and that it will only take 20 minutes. You are already late for an important meeting. You have nothing illegal in your house. Do you let the officer search? (P. 41.)
Chances are, if you are reading this, you would say no, or ask the officer to come back at a more convenient time. In Kathryne M. Young and Katie Billings’ study of people’s responses to five rights assertion vignettes, only 26.7% of respondents with high cultural capital said that they would comply with police requests, compared to 55.1% of respondents with limited cultural capital. (P. 45.) People with high cultural capital also were more likely to explain their responses in terms of “entitlement,” by expressing “the primacy of their own needs, rights, or desires in relation to the objective of law enforcement or the legal system.” (P. 45.) People with limited cultural capital were more likely to express “futility,” suggesting that “asserting a right would be useless.” (P. 49.) These findings have important implications for policing and criminal procedure, as well as for the role of lawyers in civil access to justice. Continue reading "Who Feels Entitled to Assert Legal Rights?"
May 20, 2020 Susan FortneyLegal Profession
Let’s admit it, harassment and bullying are endemic in the practice of law. Horacio Benardes Neto, the President of the International Bar Association (IBA), made this observation in introducing an IBA report, called Us Too: Bullying and Sexual Harassment in the Legal Profession. Published last year, the report was based on findings from the largest-ever global survey of nearly 7,000 legal professionals in 135 countries. The survey revealed that one in three female respondents and one in fourteen male respondents had been sexually harassed at work. Additionally, one in two female respondents and one in three male respondents reported being bullied at work.
To help the legal professions address the serious problems of sexual harassment and bullying, the IBA report proposes ten recommendations. Recommendation One urges interested parties to “Raise Awareness,” while Recommendation Three calls on the legal profession to “Take Ownership” of the problem. These recommendations are one of the reasons that I commend Professor Veronica Root Martinez’s article, Combating Silence in the Profession. In her article, Professor Root Martinez both examines discrimination and exclusion in the legal profession and proposes practical steps for tackling the challenges of discrimination, exclusion, underrepresentation, and bias. Continue reading "Promoting Diversity and Inclusion in the Legal Profession: The Significance of Giving Voice and Listening to Persons Who Experience Discrimination, Bias, and Harassment"
May 5, 2020 Francesca BartlettLegal Profession
Margaret Thornton’s work has had a defining role in the landscape of socio-legal scholarship in Australia and across the common law world for the last generation. She has long critiqued the neo-liberal turn of our major institutions (especially in the academy and legal profession) with an emphasis on profit maximisation. She coined the term “Benchmark Male” to capture a prevailing notion of an “ideal worker” with supposed attributes often unattainable for women and others struggling under the yoke of gendered roles and assumptions. In The Flexible Cyborg in 2016, Thornton described the results of her qualitative empirical work, which found that technology enabled “temporal flexibility dovetailed with the feminisation of labour in the late twentieth century” resulting in women lawyers simply doing more (full time work and domestic duty). Thus, she has long documented how an economy enabled by the uptake of technology has “colonised new sites” including the personal sphere. Her latest contribution, Towards the Uberisation of Legal Practice, is also concerned with working patterns and gendered effects but provides a more upbeat reflection on an aspect of modern legal practice driven (to an extent) by a desire for “being happy.”
Thornton bases her discussion on a relatively small, empirical project comprising of 38 interviews with Australian and English lawyers within “NewLaw” firms. However, the interviews were in-depth discussions, which ultimately generated rich insights concerning lawyer experience and opinion. By focusing on the process as well as the outcome of disruption of traditional legal career patterns and expectations, her project zeroed in on the following questions:
Why lawyers had left traditional practice, established a new firm or had chosen to become independent contractors, and what working flexibly mean for them, how comfortable they were with the technology and what measures were being undertaken to prevent work from encroaching on their private life. (P. 48.) Continue reading "Happiness in NewLaw—Assessing the Lifestyle Claims of Alternative Legal Practices in Australia"
Apr 21, 2020 Rebecca RoipheLegal Profession
Ramsey Clark is a bit of a mystery. As Attorney General, Clark fought diligently for civil rights. He began his career as an insider who was independent and critical but seemed to respect the institutions in which he worked. The son of Supreme Court Justice Tom Clark, he made enemies when he served in the Johnson administration, but he was hardly radical. When he left government work, however, his practice took an unusual turn for a lawyer of his stature and pedigree. Like the famous leaker of the Pentagon Papers, Daniel Ellsberg, Clark went from consummate insider to unyielding government critic. He went on to represent infamous clients like Saddam Hussein, the Palestinian Liberation Organization (PLO), and President of Syria Bashar Al-Assad. He also defended two former Nazis in deportation proceedings and stood by Elizaphan Ntakirutimana, a Hutu clergyman accused of luring Tutsis to their slaughter during the Rwandan genocide. Conducting these representations with skill, Clark often seemed fond of his clients, kind and even admiring at times. All the while, he relentlessly criticized the United States for its cruelty and hypocrisy.
In this biography of Clark, author Lonnie T. Brown, skillfully leads us through his subject’s life and career, giving us clues as to why Clark turned into such an unyielding critic of his country. Clark was involved in so many major events in American history that the book offers a unique perspective on the last sixty years. But Defending the Public’s Enemy is more than just a retelling of famous events in our past. Ramsey Clark’s unflinching independence offers insight into the role of the Attorney General, a particularly timely topic. His later career as a defense attorney and activist—representing some of the most notorious individuals—sheds new light on age-old discussions of how lawyers, especially the elite of the profession, should choose their clients, and how they can justify defending villains. Finally and most importantly, Clark’s transformation, his personal story, told directly to the author, is a story of the American Left. It helps us understand the political landscape in a way that most political and cultural histories cannot. Continue reading "Fight the Power"
