Friday, September 29, 2006
Fred C. Zacharias (U. San Diego School of Law) has posted The Image of Lawyers on SSRN. Here is the abstract:
This Article identifies some of the different images of lawyers that exist and the ramifications of emphasizing each image (e.g., as a paradigm) in the professional codes. It then considers how code drafters can best deal with the existence of multiple, sometimes inconsistent, conceptualizations of lawyers. Currently the codes emphasize and rely on overriding paradigms that ignore the existence of the alternative images. The article addresses the likely consequences of thinking in less paradigmatic terms - for code-drafting, discipline, who should regulate, and the substantive regulation of attorney-client interrelationships. It attempts to provide some postulates, or baselines from which professional regulators should begin in order to formulate coherent and useful legal ethics codes. Although this article does reach some conclusions, the purpose of its analysis is not to propose or criticize specific rules. Its point is both simpler and broader: the regulators should openly acknowledge the theory, or theories, on which they proceed. Inevitably, after a code is adopted, individual reforms will be proposed - some addressing minor or isolated issues - and will be adopted more because of their factual setting (e.g., a period of corporate scandals) than because of their consistency with the codes' overarching paradigms. Unless the initial drafters have made the limits of their general theory clear, or identified how and when other paradigms might reasonably be considered when reform becomes an issue, the idiosyncratic or fact-based reforms are likely to undermine the codes' coherence.
Posted by Jeff Lipshaw