Reaffirming Legal Ethics

Taking Stock and New Ideas

Kieran Tranter, Francesca Bartlett, Lillian Corbin, Michael Robertson, Reid Mortensen

• Publisher: Taylor & Francis
• Year: 2010
• eBook ISBN: 9781136954764
• Edition: 1
• Topic: Law
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Law

It has been over thirty years since the founding crises that birthed legal ethics as both a field of study and a discrete field of law. In that time thinking about the ethical dimension of legal practice has taken several turns: from justifications of zealous advocacy, to questions of process and connections to specifically legal values, to more recently consideration of legal conduct as part of a wider field of virtue. Parallel to this dynamism of thought, there has also been significant changes in how legal professions, especially within those that possess a common law heritage, have been regulated and the values and conceptions of legitimate conduct that has informed this regulation.

This volume represents an opportunity for a comprehensive review of legal ethics as an international movement. Contributors include many of the key participants to the legal ethics field from the United States, United Kingdom, Canada, Australia, New Zealand and South Africa, including David Luban and Deborah Rhode, as well as many of the recognised emerging thinkers.

The theme of the book is taking stock of the last thirty years of legal ethics practice and scholarship and also a forum for new ideas and new thinking regarding the conduct of lawyers and the moral and social responsibility of the legal profession. The contributions also consider the topic of dynamism. Over the last decade significant developments in both the expectations of professional conduct and the regulation of the profession has been experienced in all jurisdictions, which has seen traditional, and once sacred, conceptions of lawyering challenged and re-evaluated. The contributors also look at the theme of affirmation. Within an increasingly complex environment of change and dynamism, this volume reaffirms that there is value within the field of legal ethics. That is the project of reflecting on the unique ethical and conduct requirements of lawyering can not be submerged into a broader field of applied philosophy, management or regulatory studies. While this volume does not deny the opportunities that exist for interdisciplinary engagement with philosophy, social science or politics, it affirms legal ethics as a legitimate and highly relevant field of inquiry.

1
Introduction

Kieran Tranter, Francesca Bartlett, Lillian Corbin, Reid Mortensen and Mike Robertson

1.1 Reaffirming legal ethics

The contributors to this book reaffirm legal ethics. In doing so, they enable us to take stock of current thinking about the conduct of lawyers. All of the contributors assert, in no uncertain terms, the ongoing importance of legal ethics both as a practical matter concerned with the conduct of lawyers and as an area of sustained and critical scholarly inquiry. Therefore, at least in the common law world, legal ethics is viewed as a two-sided enterprise. On one side are the ‘laws of lawyering’,¹ the rules, regulations and disciplinary procedures that govern the practice of law in various jurisdictions. On the other side is the academic activity dedicated to understanding, probing and questioning the rules and institutions concerned with lawyers’ behaviour and to articulating a coherent moral grounding for the work of lawyers.

Legal ethics, as with the ethics of any ancient profession, has a long history that predates modern conceptual distinctions between law and morality. However, once we as moderns assume the two distinct sides of legal ethics, critical points of its contemporary development can be identified. The law of lawyering itself has multiple beginnings. The legal profession has enjoyed and long cherished a professional freedom to self-regulate. Indeed, 2008 marked the centenary of the American Bar Association’s 1908 ‘Canons of Professional Ethics’.² In addition, the common law courts have exercised authority to regulate entry (and exit) to the rolls of the legal profession. Further, as Fred Zacharias reminds us in Chapter 11, lawyers have always been subject to the rule of law, accountable to the general law of fiduciary duties, agency, contract and the like. The other side of legal ethics has had an even more sporadic development in the modern era, but the ‘primers’ on ethical conduct that began to emerge in the nineteenth century also remind us of recurring concerns in the profession about ‘what is just and right’.³ Nevertheless, it was the Watergate scandal in the 1970s that gave critical impetus to this side of legal ethics.

Many commentators credit the modern development of the field of legal ethics as a practical and intellectual reaction to Watergate.⁴ The early 1970s represented a time of questioning of institutional legitimacy, and the legal profession was being called increasingly to public account.⁵ In this context, the partisan behaviour of the lawyers, and the legally trained, involved in the White House’s illegal surveillance of political opponents and its attempt to cover up the 1972 break-ins at the Watergate Complex in Washington DC represented an internal crisis for the legal profession and also an external crisis in public confidence in the legal profession. For the moral philosopher Richard Wasserstrom, writing in 1975, the conduct of lawyers involved in Watergate could be explained by ‘role differentiation’: the idea that, once a person assumes a given social role, it is both appropriate and right for them to ignore moral standards that should not be ignored outside that role.⁶ He regarded lawyering as an extreme example of role differentiation, to the point that – especially in litigation – the client’s objectives should be promoted, regardless of the moral or political outcome: ‘the lawyer as professional comes to inhabit a simplified universe which is strikingly amoral – which regards as morally irrelevant any number of factors which nonprofessional citizens might take to be important, if not decisive, in their everyday lives.’⁷ Wasserstrom identified the central moral foundation behind lawyering in the common law world, which remained under-appreciated until Watergate: lawyers assumed that they were engaged for their technical competence, and viewed questions of moral responsibility as largely outside their purview.

Wasserstrom’s identification and critique of ‘role morality’ represented a catalyst in the development of legal ethics as an area of law and a field of study. Post-Watergate, the American Bar Association’s rules, which were restated in 1969, were again revised in 1983.⁸ These expanded rules provided a clearer articulation of the freedoms and constraints that comprise the role of the lawyer, and the reform process spread to the professional rules of conduct issued by the organized profession in other jurisdictions. For the professional societies, role morality remained the touchstone in consideration of good lawyering, but it was a touchstone that needed to be expressly stated, justified and increasingly refined. This is still the case.

A factor that helped to ferment the articulation, justification, criticism and refinement of the rules of professional conduct was the emergence of legal ethics as a dedicated intellectual endeavour. Again, role morality was a touchstone for the growth of scholarship in the field. Wasserstrom’s identification and critique of role morality challenged a generation of legal scholars to think more deeply about the morality and politics of the lawyer’s role. Some scholars, like Charles Fried, met Wasserstrom’s challenge directly and offered more sophisticated moral justifications for role morality.⁹ Others echoed Wasserstrom’s criticisms of role morality and suggested the need for alternative moral grounds for legal practice – at least in the hard cases where strong adherence to role morality would lead to morally repugnant outcomes. On this side of legal ethics, significant diversity became evident concerning the origins, legitimacy and acculturation of called-for alternative values. David Luban argued for common morality that lay within the wider community;¹⁰ Thomas Shaffer argued for the virtue implicit in human potential;¹¹ Shaffer and Carrie Menkel-Meadow introduced ethics of care to the field;¹² and in the 1990s Anthony Kronman developed a strong Aristotelian theory of virtue ethics for lawyers.¹³

Legal ethics, in both of its senses, has been consolidated since the decade after Watergate when role morality was directly articulated and justified by professional societies, and when the modern foundational positions of the field as a scholarly enterprise were expressed. The reform process within the law of lawyering has continued. Successive scandals – especially lawyer complicity in corporate collapses¹⁴ and dubious litigation¹⁵ – and a consistently negative public image¹⁶ have placed significant political pressure on lawyers for far-reaching reforms of the profession, climaxing with the partial loss of self-regulation for the profession in England and Wales and also in most Australian jurisdictions.¹⁷ For scholarship on legal ethics, two concerns emerged. The first related to legal education questioning when and how legal ethics should be taught.¹⁸ The second was a heightened awareness of the implications of departing from role morality for the rule of law. What was exposed was the relationship between fundamental values that are supposedly safeguarded by a technically neutral legal system, and the threat and dilution of those values when legal actors are encouraged to adopt some moral perspectives that are independent of the law. Following William Simon’s argument that the values that should guide lawyers in professional conduct are values implicit within a functional legal system,¹⁹ a subsequent generation of scholars, such as Brad Wendel, presented what amounted to political justifications for a refurbished and revitalized role morality.²⁰

These two sides of legal ethics sometimes rub against each other. For instance, as reiterated in the ‘roundtable’ published in this volume (see Chapter 2), Deborah Rhode protests that Wendel’s views amount to ‘legal ethics without the ethics’. The field undoubtedly has its ambiguities, evident even when we are trying to define its boundaries. However, we suggest that the friction generated when the two sides of legal ethics confront each other has helped motivate the contributors to this volume to reaffirm the field’s importance. All of the contributors also demonstrate and assume the importance of sustained and critical inquiry into lawyering. Within an increasingly complex environment of change and dynamism, what is affirmed is the value of the project of reflecting on the special, if not unique, conduct requirements of lawyers who simultaneously serve the needs of clients and their community. This explains the two themes that weave through these contributions. The first theme concerns the dynamism of the current and changing context of legal practice. The second concerns the ongoing relevance of legal ethics to third millennium lawyering.

1.2 The current and changing context of legal practice

Social scientific studies of lawyering from the 1960s and 1970s painted a picture of the form and structure of legal practice from the decades that contemporary legal ethics emerged. Despite the rise of the mega-firm over those decades, most lawyers in the common law world practised as sole practitioners or in traditionally structured firms comprising a handful of partners.²¹ In this pattern of legal practice, lawyers served the discrete communities to which they belonged, and the lawyer–client relationship could be seen as a personal one.²² Lawyers were still predominately male, white and middle class.²³

This rather homogenous picture of who lawyers were and what they did presents a baseline from which the revolutions that have occurred in lawyering over the ensuing 30 years become clearer. Legal practice has become more specialized and stratified. The mega-firm with a national, and indeed international, presence has emerged to serve the legal needs of transnational corporations. Organized according to Fordist principles of repetition and standardization, these firms have arguably given rise to patterns of production line lawyering. This has also transformed the experience of lawyering for junior lawyers from one that was predominantly a personal relationship with clients to one that is often a depersonalized routine.²⁴ Furthermore, women have entered the legal profession in increasing numbers.²⁵ There are more law schools that are producing more graduates, so that old class and cultural prejudices that erected social barriers to entering the legal profession have been diluted.²⁶ Lawyers now must compete for work with other professions. Lawyering is seen increasingly as a business pursued for profit – or, perhaps even more challenging, just a job rather than a calling. This is a long way from the image of lawyering that underpinned early work on legal ethics.

However, in other respects the world of lawyers has not changed much at all. The profession still largely comprises private practitioners and, as has been the case since the reforms of the nineteenth century, they are necessarily motivated by a need to generate income. Lawyers are educated and trained through traditional university education. The legal profession nevertheless retains a basic orientation towards client needs, advice-giving and agency work, which itself sometimes leads to representation of clients in litigation. There are still professional associations, and lawyers – officers of the court – retain a formal affiliation with the justice system. To be a lawyer involves accreditation and meeting standards established by professional associations and the courts. Alice Woolley and Jocelyn Stacey’s discussion in Chapter 10 demonstrates the significant power exercised by these professional and judicial communities in dictating qualification standards that are imbued with ethical meanings. While much has changed, and the extent and implications of the changes in the context of lawyering over the past 30 years should not be under-estimated, contemporary patterns of legal practice preserve some core continuities from the traditional picture of legal practice.

It is this tension between the changing context of lawyering and the traditional conception that is explored in many of the chapters in this volume. In Chapter 5, David Luban considers a particular change in lawyering: the rise and rise of in-house government c...

Table of contents

• Routledge Research in Legal Ethics
• Contents
• Preface
• Contributors
• 1 Introduction
• 2 The philosophical foundations of legal ethics: a roundtable1
• 3 Personal integrity and professional ethics
• 4 Legal advising and the rule of law
• 5 Tales of terror: lessons for lawyers from the ‘war on terrorism’
• 6 Legal ethics in a post-Westphalian world: building the international rule of law and other tasks
• 7 An opportunity for the ethical maturation of the law firm: the ethical implications of incorporated and listed law firms
• 8 Carnegie’s missing step: prescribing lawyer retraining
• 9 Professionalism and Pro Bono publico
• 10 The psychology of good character: the past, present and future of good character regulation in Canada
• 11 The ‘self-regulation’ misnomer
• 12 Why good intentions are often not enough: the potential for ethical blindness in legal decision-making
• Index