Academic journal article Stanford Law Review

The Profession and the Public Interest

Academic journal article Stanford Law Review

The Profession and the Public Interest

Article excerpt

It is an honor to join a dialogue with colleagues whose work has been so central to issues of legal ethics and social justice. This brief essay cannot do justice to the scope of their contributions here or in other forums. My aim is simply to highlight some common concerns and respond to some key questions about the appropriate framework for professional reform.

In the Interests of Justice aims to provide a comprehensive overview of the major challenges facing American lawyers. (1) Its focus includes problems in the advocate's role, the adversary system, the conditions of practice, the regulation of competition, the distribution of legal services, the oversight of professional conduct, the standards for admission, and the structure of legal education. From this survey emerge two central claims. The first is that lawyers, both individually and collectively, Should assume greater responsibility for the consequences of their professional actions, for the performance of the legal system, for the conditions of their practice, and for the effectiveness of bar regulatory processes. A second, and related claim is that the public should demand greater accountability from the profession and should assume a greater role in overseeing its conduct and in ensuring access to legal assistance.

On the whole, contributors to this symposium, like most other experts in the field of professional responsibility, agree that there are major problems in the practice of law and the distribution of legal services. (2) But several commentators also raise questions about the appropriate framework for addressing these problems. This essay offers a brief overview of the book's central claims and a response to questions along four main lines. What is the nature of the problem? Is there a single "profession" that can be held responsible for solutions? Is the public interest a sufficiently coherent concern to guide appropriate reform efforts? If so, how can those efforts be mobilized?

I. THE PROBLEM

In the Interests of Justice explores problems of several forms, including overly zealous representation of those who can afford it; inadequate representation of those who cannot; and insufficient regulatory correctives. A number of the preceding essays focus on specific illustrations of those problems. Anthony Alfieri's discussion of race, Robert Gordon's overview of adversarial abuses, Tanina Rostain's analysis of tax practice, and Dennis Curtis and Judith Resnik's exploration of lawyers' billing provide the kind of in-depth treatment that is critical to effective reform strategies. (3) In the Interests of Justice takes up similar issues in a wide array of other contexts such as confidentiality, civility, competence, access to justice, relations with witnesses, restraints on competition, and bias in the profession.

These problems arise from multiple sources and call for multiple correctives. Increased competition within and across the profession has intensified pressures to accommodate client demands at the expense of ethical values. Much of the loophole lawyering that Professor Rostain describes, and the obstruction, obfuscation, and deception that Professor Gordon chronicles, is attributable to these dynamics. Competition for status, promotion, and profits also underpins many of the billing practices that Professors Curtis and Resnik explore, which advantage lawyers at the expense of their clients. These problems are exacerbated by weak regulatory oversight from administrative agencies and bar disciplinary systems, along with ineffective internal controls within law firms.

Ideological as well as structural factors are at work. Lawyers often become habituated to the moral compromises that economic pressures exact. Attorneys who are constantly playing close to the line may lose track of the boundary or lose interest in drawing it. "Everyone cheats a little" becomes the rationalization for "creative" timekeeping, fudging the facts, and willful ignorance on the fringes of fraud. …

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