Regulation of Lawyers: Problems of Law and Ethics

Regulation of Lawyers: Problems of Law and Ethics

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Imagine that you are going to spend substantial time in a distant island nation. You’re excited because you’ve heard a lot of good things about the place, but you’re also a little anxious. Much will resemble home, but many customs will be new. You don’t want to embarrass yourself or, worse, get kicked off the island. You buy a guidebook to tell you how to act in different business and social situations. What should you expect? This book is a guidebook of sorts. Its silent subtitle could be How to Perform in the Law. It tells you how to act in a new place—Lawyerland—a place where most readers of this books will spend decades of their working life. You need to know the customs or, more accurately, the rules in order to thrive. How to act. In The Performance of Self in Everyday Life, the sociologist Erving Goffman compared everyday face-to-face encounters with acting, to a series of performances. In chapter 7A, Robert Post draws on Goffman’s study of performance and acting to help understand the popular perception of American lawyers. “All the world’s a stage,” Jacques declared in As You Like It, anticipating Goffman by centuries. Law practice is also a stage, on which, updated Jacques, a lawyer in her lifetime will play many parts. Here are three things about this book and the class it serves. First, this is your second most important class. A bold statement, but true. Say you become an antitrust lawyer. The criminal procedure class you loved will face in your memory. Or if you become a criminal defense lawyer, you won’t need to know much about copyright. But whatever work you do as a lawyer, you will practice what you learn here every day you got to work. Other courses teach lessons that bear on a client’s problems. This book is about your work as a lawyer. You’re the client. Knowledge of these rules enables you to stay safe and to protect your clients from the misconduct of other lawyers. Also, representing lawyers and law firms in trouble (or needing advice to avoid trouble) is now an established practice area, one that might appeal to you. Second, the book contains many problems. Some are one paragraph, others a page or more. Many are based on or composites of real events that I’ve heard or read about. Many of the problems are dense and messy, like life. They arose yesterday or will tomorrow. A problem may not have all the information required to answer it. Just like practice. You may have to identify what more you need to know. Lawyers know that finding solutions to problems that arise in practice benefits from conversation. So, too, here. Listening to others in class and articulating your own tentative responses will produce a better result than thinking alone. Third, this book has a personality, a voice: mine. In that way, it is unlike some other casebooks. Its voice is conversational. Sometimes, it takes a position. I invite you to disagree. “I” appears with some frequency as the subject of a sentence. As you approach the starting line of your legal career, most important are the rules that constrain your behavior. You will want to know—in such areas as competence, fees, advocacy, confidentiality, conflicts of interest, negotiation, and the client-lawyer relationship—what you may or must do or not do, with confidence that your conduct will not land you before a disciplinary committee, create civil or criminal liability, invite court sanction, forfeit your fee, or damage your reputation. Ethics, a useful shorthand, does not accurately describe all lessons learned here. The law business is heavily regulated. The regulations are growing more complex. This has led to new terms—the law governing lawyers and the law of lawyering—lest anyone be fooled by the word “ethics” into believing that the subject is simply about how to be a good person and lawyer at the same time (although it’s about that, too). It sometimes seems that the public thinks both are not possible. Avoid two errors. Do not believe that the right way to act—toward clients, courts, adversaries, or colleagues—will be intuitively obvious. Sure, sometimes it will be. But no one needs to teach you not to lie or steal. The rules here may be obscure, some may be counterintuitive, and others are subtle in application. Application in turn calls for judgment, and judgment is mostly learned through experience. But it can start now. Do not assume your employer will provide all the protection you need. Most law offices do have systems to detect and avoid mistakes and people to whom lawyers can turn for advice. But the best systems and resources are still not perfect, and anyway, the professional responsibility of a lawyer cannot be delegated wholesale to others. Furthermore, you need to know when you need to seek advice or do research. A broader perspective from which to view the laws and rules that regulate lawyers looks at their effect on civil society and administration of justice. These laws and rules help define the nature and work of the entire profession and therefore the behavior of our legal institutions and the quality of our social justice. For example, a rule that prohibits, requires, or allows a lawyer to reveal a client’s confidential information to protect others from harm will guide a lawyer’s own behavior, but it can also affect what information clients are willing to share with their lawyers. Many rules reflect an effort to reconcile competing interests between clients and others. As you enter law practice, you are likely more interested in such questions as “How must I behave?” and “How can I stay out of trouble?” than in asking, “What are the consequences to civil society and justice if one or another version of a particular rule is applied to the 1.3 million American lawyers?” Still, the last question is important and, if not as immediate, may arise in the course of your professional life. You may someday be in a position to resolve the broader questions—as a member of a bar committee, a legislator, a government lawyer, or a judge. Asking about the consequences to justice and civil society if a rule is resolve one way rather than another—and saying which resolution is best—engenders different answers among both lawyers and the public. Why is that? In part, because the answers depend on political and moral values more fundamental than the “ethics” that informs various codes. And political and moral values of different people differ. In addressing the questions here, we must be honest about the interests we mean to protect. Those of society generally? Those of a particular client population? The legal profession’s? Your own? Law school and law practice, it is sometimes said, encourage more rather than less self-interest. In transition as you are, your answers may vary from what they would have been when you applied to law school, and they will likely be different five years after you graduate. You will enter a profession in greater transition than at any other time in American history. Three forces are reshaping the U.S. law industry: technology, globalization, and competition from new sources. As it happens, while I was writing this preface the Wall St. Journal ran an article entitled “Would You Trust a Lawyer Bot With Your Legal Needs?” by Asa Fitch (August 10, 2020.) And the Utah Supreme Court adopted reforms that allow nonlawyers to own law firms0, and idea that, until recently, would have been unthinkable. Lyle Moran, “Utah Embraces Nonlawyer Ownership of Law Firms as Part of Broad Reforms,” (ABA Journal August 14, 2020). Arizona did, too. See chapter 14B. Will artificial intelligence replace some lawyer tasks? Will it replace some lawyers? Will it reduce the cost of some legal services? Yes, yes, and yes. It has already happened. These three forces are upsetting a lawyer regulatory system that has served the United States well for more than a century, a system based on geography. In that system, lawyers get licensed by a place and serve clients from an office in that place. But technology has challenged the use of geography as the basis for regulation and licensure. The Internet does not recognize borders. Neither may a client’s problems. And algorithm does not need a law license. Technology and globalization have encouraged competition from lawyers outside the U.S. and the ability of non-law businesses to offer legal services at lower cost. Chapters 12C and 14B address these trends. This is the twelfth edition of the book. I started working on it in 1982 shortly before the birth of the first of two amazing daughters to whom all editions have been dedicated. I sent the manuscript to the publisher just after the birth of the second daughter in 1984. The daughters are now out in the world, but the book has never left home. You think a lot about what a casebook is and can be when you live with one so long. The book’s primary purpose is to provide information, but that’s just the beginning. The minimum editorial task would allow me to pick good cases and other materials, edit them, order them logically, add interstitial notes and questions, and put the product between the covers. Voila! A casebook. Or course, one must begin this way, but if nothing more were possible (even if not required), I wonder if I would have kept at it so long. Luckily, more is possible while still serving the book’s goal—to teach the subject. For starters, we can strive for humor, variety, clarity, and good writing. The enterprise will not likely support the wit and moral imagination of an Orwell essay or the originality of a Vonnegut novel—assuming counterfactually that I had the talent to write either (in which case I’d probably be in a different line of work)—but a casebook is a book, after all, and it should have an authorial presence in so far as possible. That’s what makes the book mine. And then there are the stories lawyers tell each other. The legal profession is a culture of storytellers and stories. Harrison Tweed (1885-1969), a president of the New York City Bar Association, once said, “I have a high opinion of lawyers. With all their faults, they stack up well against those in every other occupation or profession. They are better work with or play with or fight with or drink with than most other varieties of mankind.” These words are inscribed on a wall at the Association’s headquarters. As a young lawyer, I thought Tweed was overly effusive, even sanctimonious. At the time, I was inclined to agree with the character in George Bernard Shaw’s play The Doctor’s Dilemma who said that “all professions are conspiracies against the laity.” I still find Tweed a bit over the top and Shaw’s observation spot-on. But now I think that Tweed was onto something. The profession and its members are fascinating to study. Its stories are fascinating to hear. As with the study of any culture, understanding the bar requires density of information. We must know a thousand small details about the actual life within the society of lawyers, not merely a dew doctrines and theories, if we are going to understand Lawyerland truly. I have tried to include some of those details here. I have tried to include stories lawyers tell each other and stories about lawyers from the popular and legal press. I invite your view on the book. What was dull? What worked well? How can the book be improved? Have you encountered a quote or story somewhere (true or fictional) that you think nicely highlights an issue? This editions is indebted to past users who alerted me to interesting sources. All comments will be gratefully acknowledged.

Publication Date

2021

Edition

12

Regulation of Lawyers: Problems of Law and Ethics

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