Tuesday, October 17, 2006

"Research Canons" in The Legal Profession

Posted by Alan Childress

Not to be confused with the original Canons of ethical rules.  This means that the ongoing PrawfsBlawg project of research canons, or essential readings in various subjects, is now spotlighting legal ethics and professional responsibility. Great idea, though I hope it is taken more broadly to include landmark research in "the legal profession" generally and not only ethics and bar discipline as such.  I'd say all of that is encompassed by their underlying project description (despite the title of this application) since their test is what is essential foundational reading for a new academic in the field -- and no such person in their right mind would only read about ethics rules writ small.  You can go to the blog above and post Comments on what you'd tally as such essential reading.

Andy Perlman and Brad Wendel of legalethicsforum actually got a jump start on this project a week or two ago. So first one might want to look at the suggested articles and books Brad posted there (now  helpfully repeated in the PrawfsBlawg Comments section) as well as some nice Comments attached to Brad's original list (not found at PrawfsBlawg, at least not yet).  One of those Comments is from our blogboy Jeff, offering his top reads in the field.  His list implicitly suggests we take seriously the business ethics, corporate governance, negotiations,and fiduciary duty areas that most people would ignore in their first efforts at sticking their toe into the cold pool of legal ethics.  But he is right that they should not be ignored.  How to talk about legal ethics in the business setting without understanding the literature about corporate structure, culture, and obligations to investors and constituencies? 

Jeff's list does not dismiss the usual suspects -- still classics, I'd say, including some on Brad's list -- about "the role of the lawyer as advocate." But his list does seem to recognize that not all lawyers are Matlock and not all clients are Manson.  I'd add that Sarbanes-Oxley and its limits, as an example, cannot be understood just in the abstract as all about the right thing to do.  One needs to consider compliance costs too, or whether the lawyer's role envisioned there is at odds with the image of lawyer embedded elsewhere in ethics law.  I'll add my own list, FWIW, over at PrawfsBlawg (repeated under the fold here), but kudos to Andy and Brad for seeing this coming.

My Comment over at PrawfsBlawg:

Brad Wendel's list is a great place to start (consider also the Comments attached to Andy Perlman's original post at LegalEthicsForum). But [as Brad notes] it is short on the rich sociological literature here, such as works by Jerald Auerbach and Marc Galanter. A few more classics IMO are:

Heinz & Laumann, Chicago Lawyers: The Social Structure of the Bar (1982).

Robert Post, "On the Popular Image of the Lawyer: Reflections in a Dark Glass," 75 Cal. L. Rev. 379 (1987).

Felstiner & Sarat, "Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions," 77 Cornell L. Rev. 1447 (1992).

Douglas Rosenthal, Lawyer and Client: Who's in Charge? (1984).

       I would add that anyone entering this field should remember that the U.S. is not the world, and our "legal profession" is not a definitional universality. The best quick read on comparative legal professions is Richard Abel and Philip Lewis, Lawyers In Society: An Overview (1995), but their full 3-volume collection Lawyers in Society (circa 1988) is a must-shelve too. Finally, over at The Legal Profession Blog, [above], I make my pitch that the canons should not be confined to "legal ethics and professional responsibility," and from these postings -- and others on Brad's and Andy's site -- it is clear that is not being confined that way. Thanks.

--Alan Childress

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