Thursday, September 5, 2013
Recently posted to SSRN is a new paper by Bruce Green (Fordham), entitled Lawyers’ Professional Independence: Overrated or Undervalued? It is an article for the Akron Law Review. Here is a summary:
This article explores the concept of lawyers’ "professional independence" in the literature of the U.S. legal profession. It begins with some reflections on the conventional meanings of professional independence, which encompasses both the bar’s collective independence to regulate its members and individual lawyers’ independence in the context of professional representations, including independence from clients, on one hand, and independence from third parties, on the other. The article suggests that the professional conduct rules are overly preoccupied with protecting lawyers’ professional independence from the corrupting influences of other professionals. The article then turns to an aspect of professional independence that has largely dropped out of lawyers’ discourse but that deserves more attention, namely, lawyers’ independence from the courts. This includes: (1) freedom to criticize judges; (2) freedom to disobey arguably unlawful court orders; and (3) freedom to resolve certain ethical dilemmas for oneself, as a matter of professional conscience. The article maintains that as the bar has become strongly identified and allied with the judiciary, motivated by the interests in securing judicial protection from other government regulation and in securing the bar’s own institutional influence over individual lawyers, the bar has ignored this understanding and redefined professional independence consistently with a strong judicial role in regulating lawyers.