Tuesday, August 5, 2008

Wald on Client Communications, the Model Rules' Concept, and Making It a Dialog

Eli Wald (Denver) has posted to SSRN his article, Taking Attorney-Client Communications (and therefore Clients) Seriously.  It is also in 42 University of San Francisco Law Review 747 (2008).  Here is the abstract:

This Article argues that the communications regime orchestrated by the ABA Model Rules of Professional Conduct is intentionally designed to create a one-way street, systematically channeling information in the attorney-client relationship in lawyers' direction while oftenEliwaldfull_2 leaving clients in the dark. Furthermore, the asymmetric distribution of information in the attorney-client relationship is not in clients' best interests but rather grounded in lawyers' self-interest and in a paternalistic approach that fails to take communications, and therefore clients, seriously. Finally, taking communications, and thus clients, seriously requires adopting a new communications regime that would mandate disclosure of all material information to clients. The Article proposes a materiality-based communications regime and explores its application in several contexts.

Wald has also published on the historical development of the Jewish law firm, as noted in our prior post.  He also speaks on screening conflicts of interests, as in this Colorado CLE.

August 5, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Privilege | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2008

Hellman on Federal Judicial Ethics

Posted by Alan Childress

Arthur Hellman (University of Pittsburgh) -- shown right [and below left when he teaches on the west coast, with a difference explained here] -- has just re-posted to SSRN's journal of Legal Ethics & Professional Responsibility his revised and updated article (also appearing last year in Pitt's law review, vol. 69). It's called "The Regulation of Judicial Ethics in theHellmanad Federal System: A Peek Behind Closed Doors."  The abstract is:

Ethical issues involving federal judges have been much in the news recently. Among other developments, the House Judiciary Committee held a hearing to consider impeaching a federal district judge; the Judicial Conference of the United States announced two major policy initiatives; and a committee chaired by Justice Stephen Breyer issued an in-depth report on the operation of the judicial misconduct statutes.

This article addresses two aspects of federal judicial ethics. The first involves conflict of interest and disqualification. Under the law, a federal judge is disqualified from hearing a Canola_mayo_jar_bf case if (among other circumstances) the judge's impartiality "might reasonably be questioned," or if he or she has "a financial interest ... in a party to the proceeding." The first-quoted prohibition has generated a large body of case law. The second has proved to be a fertile ground for muckraking by investigative reporters, in part because judges can easily fail to remember or recognize that they own shares in corporations that are parties to cases on their dockets. In September 2006 the Judicial Conference of the United States directed all federal courts to institute "automatic conflict screening" using standardized hardware and software. This is a substantial step forward, but a purely internal screening program does not serve the interest in transparency.

The second set of issues involves the operation of the misconduct statutes. A 1980 statute, now codified as Chapter 16 of Title 28, creates a detailed set of procedures for handling complaints against judges and taking appropriate action in instances of judicial misconduct. The Breyer Committee found that in handling the vast bulk of complaints, the judiciary has properly implemented the 1980 Act, but that in high-visibility cases, the rate of error is "far too high." The committee's report and other recent developments point to several aspects of the system that deserve scrutiny. Primary among these is the lack of visibility; neither the availability of the process nor the outcomes of proceedings are sufficiently publicized.

August 4, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 29, 2008

Burke and McCouch on Ethics of Tax Shelter Attorney for Jenkins & Gilchrist

Posted by Alan Childress

Karen Burke and Grayson McCouch (both at U. of San Diego) recently posted to SSRN an article on the tax lawyer Paul Daugerdas, whose shelter opinions led to the Jenkens & Gilchrist firm's collapse, Cobra Strikes Back: Anatomy of a Tax Shelter.  Here is a post on it at TaxProf.  Our readers might be interested in the legal profession aspects of the article.  The abstract is below the fold.

Continue reading

July 29, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, July 28, 2008

Grose on Incorporating the Client's Story Into Contextualized Ethics Analysis

Posted by Alan Childress

Carolyn Grose (William Mitchell) has posted to SSRN's journal on Law & Soc'y:  The Legal Prof'n her new article, 'Once Upon a Time, in a Land Far, Far Away': Lawyers and Clients Telling Stories About Ethics (and Everything Else). Here is her abstract:

Framed by an analysis of two particular ethical rules and their application to specific situations, this piece uses the metaphor of storytelling to explore the lawyer's role as an effective and ethical client representative. Drawing from the experiences of two sets of clients and their lawyers, the piece proposes an approach to ethical regulation (as one component of the lawyer-client relationship) that requires the lawyer to engage in a deeply contextual analysis of the specific and particular ethical conflicts presented to him in any533353_70978443_2 particular case; and work with his client to determine how to resolve those conflicts.

The first part of the article introduces the stories of these clients as the lawyers came to know them and as the ethical dilemmas unfolded. This section sets the stage for further analysis both of the Rules of Professional Conduct and of the process lawyers undertake to understand and apply those rules. The second part of the paper shifts the focus to the Model Rules of Professional Conduct themselves and tells the stories again, this time in the context of those rules. This second telling reveals that the rules that make up the system of ethical regulation are interpreted to apply to generic, abstract clients in generic, abstract situations.

Drawing on critical lawyering and narrative theory, the third part of the paper proposes an alternative approach to interpreting and resolving ethical conflicts. The article suggests that the system of regulation should be interpreted to allow room for the attorney to consider and incorporate the client's narrative context. Such an approach places the client in the center of the inquiry and requires the lawyer and client to engage actively in dialogue and problem-solving. It allows the lawyer and client together to arrive at solutions that both respond to the particular client's needs, and attend to the moral and ethical concerns the lawyer and society might have. By using a critically reflective, intentional process of inquiry around ethical (and other) concerns, the lawyer must focus on this particular client in the context of his life and his legal/non-legal needs in this particular situation. Such an inquiry results in a widening of the frame of the client's case such that what appear to be intractable and prominent ethical (and other) issues at the outset actually fade into the background as the lawyer and client together either resolve or preempt them completely.

July 28, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Thursday, July 24, 2008

Mikhail on Moral Intuition and Vining on Scientism versus Narrative

Posted by Jeff Lipshaw

For the two or three of you out there who actually read my posts on issues relating to law, ethics, business, and moral theory, or the far greater number who'd like to read something good, let me recommend two very different, but thematically related, pieces.

First, John Mikhail's (Georgetown, left) recent SSRN post, a draft of Moral Grammar and Intuitive Jurisprudence: A Formal Model of Unconscious Moral and Legal Knowledge (THE PSYCHOLOGY OF LEARNING AND MOTIVATION: MORAL COGNITION AND DECISION MAKING, D. Medin, L. Skitka, C. W. 2065 Bauman, D. Bartels, eds., Vol. 50, Academic Press, 2009) (HT, as usual, Larry Solum).  Professor Mikhail does both empirical and theoretical work with what is known as the Trolley Problem:  how people react to variants of a basic hypothetical in which a runaway trolley will kill either six people or one person depending on which track it follows, and the moral agent has to decide whether or how to throw a switch.  The empirical side is that he and his colleagues have interviewed thousands of people all over the world; the theoretical side is the conclusion that there is indeed a hardwired and universal moral sense.  This book chapter proposes a model for how the intuitional process is working.

I've recently pondered (and posted about the pondering) in Law's Illusion:  Scientific Jurisprudence and the Struggle with Judgment. I had already footnoted Professor Mikhail's earlier work as among the most promising of the descriptive enterprises on moral intuition; after looking at this new piece, I added the following:

John Mikhail’s work is on the cutting edge in terms of integrating moral philosopy and cognitive science.  Several observations about it are appropriate here.  First, Mikhail and his colleagues conclude that extensive empirical work bears out the hypothesis “that most individuals would be unaware of the operative principles generating their moral intuitions, and thus largely incapable of correctly describing their own thought processes.”  This is an empirical foundation of my inquiry; Mikhail’s work appears to confirm my intuitions and casual observations over a lifetime of work.  Second, while respectful of the inordinate complexity of the task of setting intuitive moral decision-making into algorithms, Mikhail suggests that “[i]n principle, a computer program could be devised that could execute these rapid, intuitive, and highly automatic operations from start to finish.”  This is consistent with Douglas Hofstadter’s conclusion in his work on the issue of consciousness.  Third, Mikhail’s model still does not answer the questions about recursiveness – the operation of judgment on own’s own judgment – with which Hofstadter wrestles.  Finally, while Mikhail is hopeful of a reductive solution (as noted, as much a matter of faith as anything, in my view), the difference between theoretically solvable but practically unsolvable complexity, on one hand, and irreducibility, on the other, may well be meaningless for my purposes.

Second, Joseph Vining's (Michigan, right) The Resilience of Law, posted with the following abstract:  "The development of "law and economics" over the last half-century has expanded and reinforced a perception among academic lawyers that lawJvining itself is a social science. During the same period social science has moved closer to the discipline of natural science and the presuppositions and methods of its thought and work. This essay explores why law is not and cannot be a social science, and why there are grounds for hope in a future for democracy grounded in the rule of law." 

This is a rumination on another theme that intrigues me, the interplay of the objective and subjective, something I explored in Models and Games and the piece in the Canadian Journal of Law and Jurisprudence that should be out any day now.  Vining draws on the narrative methodology, and observes:

Law will stay resilient because the individual at home in law is the bedrock, prior to any discussion of history or process, or presently existing system, or scientific conclusion, in fact prior to any discussion of "the individual."  Though some individual waves his wand at us again and again, we are not changed from the individuals we are into products or statistical notions.  Beyond that bedrock - our actual presence to one another - I should say there is some assurance in the fact that law, with its presuppositions and more than presupposition, its ontology, is the one thing other than food that we cannot do without.  Social scientists too, even they, cannot do without it.

And more:

Law will be tough enough in the future.  We can speculate why it has not been tougher in the past.  There are tensions within law, as there are in your and my own thought, and there always have been.  Identification of law with social science can have been an effort to escape them.  Social science and science behind it perhaps need not have pressed so.  They might just have offered themselves, for there is a constant pull toward the authoritarian, the meaningless, the automatic, away from responsibility, away from facing grief for what we ourselves do.  Work in law even has an element of the frightening in it, which must be handled in some way.  Just as there is biblical awe, dread, and fear, so too can it be positively frightening to think that what is  necessary to authenticity of any kind at any level - and necessary therefore to authority, and therefore to law - runs straight up to a transcendent dimension of the universe.  This is a problem the social scientist of our time, thinking as a social scientist, does not have.  But the lawyer does.

As Larry Solum says, both are highly recommended.  Download them while they're hot.

July 24, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 22, 2008

Fox on Lawyer Duties in Multidisciplinary Teams in Capital Cases

Posted by Alan Childress

Lawrence J. Fox, an attorney with Philly's Drinker Biddle & Reath and the former chair of the ABA's standing committee on ethics and professional responsibility, has posted to SSRN Law & Soc'y: LegalFox_larry_color Prof'n his article "Capital Guidelines and Ethical Duties: Mutually Reinforcing Responsibilities." It is also in Hofstra Law Review, vol. 36 (2008).  Here is the abstract:

This article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases. The complete text of the issue, which also contains the Guidelines themselves, is available online at www.law.hofstra.edu/DeathPenalty.

It is counsel, and not any non-lawyer member of the multidisciplinary defense team which needs to be assembled to provide competent representation in a capital case, who bears ultimate responsibility for the team's performance and for decisions affecting the client and the case. This article describes the many respects in which counsel's specific obligations under both the ABA's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue are either direct implementations of or logical corollaries to deeply-rooted provisions of the Model Rules of Professional Conduct that would bind counsel in any event. Correspondingly, the ABA Guidelines and Supplementary Guidelines illuminate the requirements of the Model Rules in the particular context of capital representation.

July 22, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Saturday, July 19, 2008

Thoughts About Judgment: Lawyers versus Clients and Lawyers versus Professors

Posted by Jeff Lipshaw

Call me a fool, but I like to get stuff out there as early as I can short of being humiliated (I am okay with merely embarrassed).  I have wrestled now for four years on the precipice either of an practitioner who thought too much like a professor (actually, that accusation goes back a long time), or a professor who was tainted by so many years of practice.  I think Tevye in Fiddler on the Roof spoke to this:  "a fish could marry a bird, but where would they live?"

I've posted a short and preliminary essay that reflects what I've been thinking about and reading about over the summer, and it has to do with the theory and practice of judgment - how judgment differs as between clients and practicing lawyers, and in turn, how it differs between practicing lawyers and the professors who taught them.  The piece is entitled Law's Illusion:  Scientific Jurisprudence and the Struggle with Judgment.  Here's the abstract:

Why are there two fairly clear chasms that affect practicing lawyers - one between themselves and their clients, and one between themselves and their professors? Both have to do with the irreducibility of judgment - perceiving regularities, applying rules to new situations, and deciding in advance what to do. I suspect Kant was right over two centuries ago, and there has not been much progress theorizing about it since then (even after the behavioral theorists like Tversky and Kahnemann and popular expositors like Malcolm Gladwell); judgment, either the inductive inferences from what we observe to what we generalize, or the leap from what we generalize to what to do next, is not teachable, but only achievable through practice. Practicing lawyers are reductivists in comparison to their clients - reducing the complex world through the "science" of law to a model; professors are reductivists in comparison to their students - either reducing the practice to a rational science, or avoiding the question of judgment at all.

This is a thought piece preliminary to a more detailed treatment of the idea.

(By the way, this is the first time I've posted a new piece on SSRN in a while; the system is improved, but still capable of being screwed up.  Key advice:  remember to click the "save" button to the upper right when you are done with each entry.)

July 19, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, In-House, Law & Business, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 16, 2008

Three SSRN Papers Explore Professional Issues Relating to Jewish Thought and Socialization

Posted by Alan Childress

Three articles recently posted to SSRN's Law & Soc'y: The Legal Prof'n journal (edited by Bill Henderson) are tangentially related but certainly on topic for this blog.  One is from 2002 while in the midst of debates over truth, disclosure, and Enron [see also the recent take by Fred Zacharias on lawyering "truth" and lying to courts, as discussed at Legal Ethics Forum here and linked in full here]:

-- Steven H. Resnicoff (DePaul), "Lying and Lawyering:  Contrasting American and Jewish Law." Originally in Notre Dame Law Review, Vol. 77, No. 3, in 2002. 

--
Eli Wald (Denver), "The Rise and Fall of the WASP and Jewish Law Firms."  Forthcoming in Stanford Law Review.

--
Eli Wald (Denver), "The Rise of the Jewish Law Firm or is the Jewish Law Firm Generic?"  Forthcoming in University of Missouri-Kansas City Law Review.94405_87017039

Other recent postings to SSRNsee also some explorations published in this SSRN journal on the idea of transnational legal education, and more on the "globalization of law firms" here and here.  Finally, Placido Gomez, from Stetson, posted this provocative title, "White People Think Differently," a paper he published in 1991 on minority pass rates on bar exams.

July 16, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

McMillian on Lawyer Depression and Media Depictions

Posted by Alan Childress

Attorney depression and related mental health issues are a recurring topic on this blog and others (e.g., Mike's June 20 post on a Pennsylvania bar matter, and his this morning on a Missouri case involving bipolar disorder).  One website is devoted to the specific topic:  it is called Lawyerswithdepression.com, and is edited by Dan Lukasik.  Depression is the subject of a recent California Bar Journal article, as we noted here.  David Giacalone at f/k/a has also written on the subject in helpful detail and poetically, and see also Legal Underground's important 2005 post here (guest penned by Ray Ward).  Both Ray and David link plenty of books and articles, and the comments and blog trackbacks following Ray's post are extensive.

The subject intersects frequently with attorney images in popular culture. Jeff wrote on the subject via posts about Michael Clayton and law firm associates. Bill Henderson, along with David Zaring, wrote a review essay on two lawyer novels depicting associates and their supposed unhappiness, but Bill also points to empirical studies worth considering before jumping to the conclusion that lawyering equals unhappiness.

Now Lance McMillian (Atlanta's John Marshall L.S.) has published in SSRN Law & Soc'y:  The Legal Profession his new paper, "Tortured Souls: Unhappy Lawyers Viewed Through the Medium of Film."  He focuses on such 'tortured' characters as Ned Racine, Frank Galvin, Michael Clayton, and even Atticus Finch.  The abstract is below the fold.

Continue reading

July 16, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society, Lawyers & Popular Culture | Permalink | Comments (3) | TrackBack (0)

Thursday, June 19, 2008

"Some Realism About Bar Associations"

That is the title of a new essay by Elizabeth Chambliss (NYLS) and Bruce Green (Fordham), which is now available on SSRN.  Here is an excerpt of the abstract:

What are bar associations' responsibilities for law reform? Under what conditions do bar association committees act in the public interest? Do lawyers even believe in the 'public' interest as something that can be collectively defined?

The lawyer-statesman is a powerful icon among American lawyers. Yet many observers are skeptical that lawyers, individually or collectively, can set aside their clients' interests, political leanings, and other biases to serve as purely public-interested members of the 'governing class.' The empirical literature on bar associations likewise invites a certain amount of cynicism - or at least pessimism - about the possibility of public-interested law reform. Research shows that representative bar groups tend to be politically ineffective due to internal division. Most examples of effective bar influence involve elite, ideologically homogenous groups. ...

This Article considers the implications of this research for the role and design of bar law reform committees. ... 

[Bill Henderson]

June 19, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Professional Responsibility, The Practice | Permalink | Comments (0) | TrackBack (0)

Saturday, May 24, 2008

Regan on Changing Organizational Culture and Ethics So They Work Together

Posted by Alan Childress

Milton Regan, Jr. (Georgetown), below left, has posted to SSRN Law & Soc'y:  The Legal Profession his article, "Moral Intuitions and Organizational Culture," also in 51 St. Louis U. L.J. 941 (2007).  His abstract begins:

    Many efforts to understand and respond to a succession of corporate scandals over the last few years have underscored the importance of organizational culture in shaping the behavior of individuals. This focus reflects appreciation that even if an organization has adopted elaborate rules and policies designed to ensure legal compliance and ethical 312_2 behavior, those pronouncements will be ineffective if other norms and incentives promote contrary conduct.

    Responding to the call for creating and sustaining an ethical culture in organizations requires appreciating the subtle ways in which various characteristics of an organization may work in tandem or at cross-purposes in shaping behavior. The idea is to identify the influences likely to be most important, analyze how people are apt to respond to them, and revise them if necessary so that they create the right kinds of incentives when individuals are deciding how to act.

    This can be a tall order even if we assume that most behavior is the result of a deliberative process that weighs multiple risks and rewards. It‘s even more daunting if we accept the notion that conscious deliberation typically plays but a minor role in shaping behavior. A focus on what two scholars describe as "the unbearable automaticity of being" posits that most of a person's everyday life is determined not by conscious intentions and deliberate choices but by mental processes outside of conscious awareness.

    In this article, I discuss a particular strand of research that is rooted in the study of non-conscious mental processes, and consider its implications for ethics and culture in the organizational setting. This is work on the process that we use to identify and respond to situations that raise what we think of as distinctly moral questions.

The remainder of the abstract appears after the jump.

Continue reading

May 24, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Thursday, May 22, 2008

Flood on Global Implications of the UK's 2007 Professional Reforms

John Flood (Westminster, visting U. Miami Law), below right [not his peke, left] has posted to SSRN his study of the effect on (or conceptualization of) law firms, even outside England and Wales, raised by recent professional reforms there.  The article is called "Will There Be Fallout from Clementi?  The Global Repercussions for the Legal Profession after the UK Legal Services Act 2007."  We previously posted here on John's work on global law firms and his teaching ethics in the U.S.  He has posted on this very topic on his "RATS" blog, but may not see the irony that he likes pekes and calls his blog that.  He also presented it at the April Georgetown U.L.C. conference that Mike noted here.  See also John's interesting blog thoughts on visiting with a US law faculty while living at South Beach.  Here now the 1126073286_c99840a4c1_t abstract:

The paper presents the historical arguments that led to the Clementi review of the legal profession and its culmination in the Legal Services Act 2007. There were two strands: one based on consumerism (too many complaints about lawyers' services); the other based on a sustained investigation by the competition authorities into professions' restrictive practices (anti-competitive unless proved in the public interest). These led to the abandonment of traditional forms of organization for lawyers' practices (alternative business structures) and the imposition of a new regulatory structure for the profession (oversight and frontline regulators).

In the second part of the paper I examine the trends in lawyers' practices as currently Johnfloodpursued and as envisaged by the Act as aligned with our conceptions of professionalism. Using two hypotheticals: Tesco Law, and Goldman Sachs Skadden, I chart a move from professionalism to deskilling and proletarianization in the legal profession, not unlike that which existed in the 19th century.

This dystopian view, which is essentially a top down conception of the legal industry, is contrasted with a more optimistic view based on the changes in the idealization of careers and life as represented by Generation Y. This is augmented by the changing nature of work, ie, post-Fordist, within organizations which in a number of ways escapes control and measurement because the distinctions between production and consumption, work and leisure allied with distributed network forms of production blur the boundaries that we have taken for granted. In contrast to the socio-economic approaches, I argue that we must examine conceptions of career, inclusion and exclusion, vocation, and community in order to understand how the professions will adapt to the postmodern condition.

Come back to the states soon, John, and congratulations on a successful year of U.S. law teaching.  See you at Law & Society Montreal?  [Alan Childress]

May 22, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Law & Society, Law Firms | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 21, 2008

Krishnan and Macaulay Honor Galanter's Mentoring a Generation of Scholars on the Profession and Social Change

Posted by Alan Childress

Jayanth Krishnan (Wm. Mitchell) and [contracts-in-action legend] Stewart Macaulay (Wisc.) have posted to SSRN their essay, "Toward the Next Generation of Galanter-Influenced Scholars: The Influential Reach of a Law-and-Society Founder."  It is upcoming in Law & Contemp. Probs., introducing a special issue devoted to topics and scholars influenced by Marc Galanter (Wisc.).  Here is their abstract:

To say that Professor Marc Galanter's scholarship is diverse would be a woeful understatement. In his over forty years of writing, Galanter's work has covered topics including (but not limited to) torts, contracts, constitutional law, comparative law, empirical legal studies, the legal profession, legal anthropology, and South Asian studies. With Galanter's scholarship so heavily cited and respected, we see it as only fitting, particularly upon his recently turning seventy-five, to acknowledge his achievements in a symposium that reflects back on the years of his work.

Serving as special editors to an issue forthcoming in the Duke Law School journal, Law and Contemporary Problems, we offer here a short essay that briefly summarizes the various works of the contributors participating in this dedication. Our authors provide a set of papers that cover a range of disciplines: law, sociology, political science, anthropology, history, and philosophy. The works embody Galanter's long-held belief that not only should law be studied in an interdisciplinary manner but that it can be instrumentally used by both elites and grassroots activists to effectuate social change.

The symposium-contributors also share another connection. Each views her or himself to be a student of Galanter's. Some of these students have been directly mentored by Galanter while at the University of Wisconsin-Madison and have since gone on to academic posts at other institutions. Others are more distance-students who have been influenced either while studying elsewhere or while working as academics at different universities. The common link though is that this cohort is part of the next generation of Galanter-influenced scholars who will be carrying-on the lessons of Galanter's vast scholarship for decades to come.

May 21, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Society | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 20, 2008

Perlman on Social Acquiescence to Unethical Conduct

Posted by Alan Childress

Before offering to buy Boston a drink, Andrew Perlman (Suffolk) posted to SSRN his new article (also recently in Hofstra L. Rev.) called "Unethical Obedience by Subordinate Attorneys: Lessons from Social Psychology."   It has already had 57 71 downloads.  Here is his abstract:

This Article explores the lessons that we can learn from social psychology regarding a lawyer's willingness to comply with authority figures, such as senior partners or deep-pocketed clients, when they make unlawful or unethical demands. The Article reviews some of the basic literature in social psychology regarding conformity and obedience, much of which emphasizes the importance of context as a primary factor in predicting people's behavior. The Article then contends that lawyers frequently find themselves in the kinds of contexts that produce high levels of conformity and obedience and low levels of resistance to illegal or unethical instructions. The result is that subordinate lawyers will find it difficult to resist a superior's commands in circumstances that should produce forceful dissent. Finally, the Article proposes several changes to existing law in light of these insights, including giving lawyers the benefit of whistleblower protection, strengthening a lawyer's duty to report the misconduct of other lawyers, and enhancing a subordinate lawyer's responsibilities upon receiving arguably unethical instructions from a superiors.

UPDATE (5/23):  The ABA Journal online here linked to and followed up on the above story, and law.com followed up and added to the ABAJ story here.  Congrats, Andy.

May 20, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (1) | TrackBack (0)

Prosecution of KPMG Employees By Denying Counsel, and The History of Night Legal Education

Posted by Alan Childress

Two recent items over at TaxProf are worth noting for readers particularly interested in ethics and the legal profession:

1.  Link and abstract for a new article in T.M. Cooley Law Review by Charles Doskow and Kevin Marshall at La Verne, on "the DOJ's conduct with respect to its interference with the right to counsel of KPMG's individually targeted employees. We analyze such conduct from (1) a constitutional perspective; (2) a Kpmg professional-responsibility perspective; and (3) an efficiency perspective..."  It is called Prosecutorial Interference with the Right to Counsel and the KPMG Prosecution, and so far appears only e-available as a Westlaw download.  There were some good posts here (and here) at White Collar Crime Prof Blog by Ellen Podgor (HT to Legal Ethics Forum here) on this issue.  The Judge found the DOJ actions "outrageous and shocking" in interfering with the employees' access to counsel.

2.  Abstract and SSRN info (linked again here) on a new article by Jeff's colleague Michael Rustad at Suffolk, and Thomas Koenig at Northeastern, which is "a social history of the struggles of Boston's nontraditional students to break into the legal profession by studying in evening law schools. Suffolk Evening Law School was founded in 1906 as a counter-hegemonic institution, explicitly dedicated to the democratization of legal education by challenging the pedagogy and recruitment practices of Harvard and the other elite day schools."  It is called A Hard Day's Night: Hierarchy, History & Happiness in Legal Education, and just came out in Syracuse Law Review.

May 20, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 13, 2008

Lubet on Honesty and Lawyers, With Real-Life Examples

Posted by Alan Childress

Steven Lubet (Northwestern) has just published his NYU Press book, The Importance of Being Honest: How Lying, Secrecy, and Hypocrisy Collide with Truth in Law.  Here is an initial review from Publishers' Weekly:  

Lubet, a law professor at Northwestern (Lawyers Poker: 52 Lessons That Lawyers Can Learn from Card Players) tackles a series of subtle and thorny ethical questions that lawyers and judges face each day. These questions can challenge their integrity, determine their effectiveness and affect how the public views the legal profession. Lubet chooses a few notorious examples to showcase his points, such as the ethical questions raised by Supreme Court512bck5ezyl Justice Scalia's duck-hunting trip with Vice President Cheney (should the justice have recused himself in Sierra Club v. Cheney?) and Bill Clinton's infamous Monica Lewinsky deposition (did he lie to his lawyer?).

Many of Lubet's examples are about less public conundrums, such as what lawyers should do if they make a mistake and the problem of judicial bullies. Lubet's central concern, which he mines adeptly, is with actions that are arguably legal but may also be strategically or morally wrong. Lubet's writing is a great strength: straightforward, funny, intelligent and devoid of legalese. Like a good color analyst, he conveys an insider's knowledge in an entertaining and informative way.

I am also looking forward to the expert comments on the book which David McGowan promises on Legal Ethics Forum.

May 13, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, April 28, 2008

Fischer on Controlling the Bar From Without, Especially By Insurers & Legislators

Posted by Alan Childress

James Fischer (Southwestern Univ. School of Law), shown left [Southwestern has the best faculty pics], has posted to SSRN his article, "External Control Over the American Bar."  It was first published in 19 Getimage_2 Georgetown Journal of Legal Ethics, winter 2006.  Here is his abstract:

Professional regulation is primarily about self-regulation. Codes of Professional Responsibility and Rules of Professional Conduct promulgated by the American Bar Association are prime examples of forum and content of self-regulation. While this approach does much to inform lawyers of their professional obligations, it does so at the macro-level, focusing on general obligations and duties. Professional codes and rules are largely silent at the micro-level; they often fail to inform lawyers of their day-to-day obligations, which are building blocks of the larger professional obligations set forth in the codes. Historically, these day-to-day activities were left to lawyers to work out on their own. With increasing frequency and detail, however, non-professional regulators are stepping in to regulate and control lawyer conduct and much of their attention is focused on the day-to-day activities of lawyers that the professional bar has largely ignored.

In this paper, I examine two non-professional groups who have entered the field of profession regulation: insurers and legislators. While for the most part insurers and legislators complement professional self-regulation, both insurers and legislators are taking positions regarding required lawyer behavior that is different in degree and kind from that required by professional codes and rules. The trend has been for both insurers and legislators to assume more aggressive postures. To date, courts have tempered the most aggressive impulses, but whether they will continue to do so is unclear.

April 28, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Bar Discipline & Process, Straddling the Fence | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 16, 2008

Meyerstein on Enemy Combatants and What That Says About the Lawyer's Broader Role in Society

Posted by Alan Childress

Recently posted to SSRN, and Bill Henderson's journal there on 'law and society: the legal profession,' is Ariel Meyerstein, "The Law and Lawyers as Enemy Combatants," also published in 18 University of Florida Journal of Law & Public Policy 299.  Ariel Meyerstein (left) is currently clerking for the Ninth Circuit, is a Ariel20meyerstein_2 JD graduate of Boalt, and is a.b.d. from Berkeley's PhD program in Jurisprudence & Social Policy.  Here is the abstract:

This article contextualizes the Senate debates leading to the passage of the Detainee Treatment Act of 2005 (DTA) within broader American cultural narratives about the law and lawyers' roles in society. This linguistic and cultural analysis describes elements of the DTA and the broader legal regime created in the aftermath of 9/11 that have subverted once-sacrosanct ideals, including the rule of law and basic procedural fairness, as merely the latest and most extreme of similar measures adopted over the last two decades to combat the spread of rights and access to justice. The "enemy combatant" is shown to be one in a line of dominant cultural images or metaphors, including the "conniving claimant" and "predator lawyers," all of which are products of what Marc Galanter long ago identified as the "jaundiced view of the law": a perspective on law and lawyers that portrays them as undermining, rather than upholding and protecting, the core values of our society, and in the process, weakening our resolve and national strength.

The article concludes by proposing that the emergence of the "enemy combatant" as a new "governmentality," or new political construct by which political power is organized and asserted, threatens not only those most immediately in danger, such as non-citizens and aliens, but also those previously thought to be safe from such an emaciation of rights and legal protections.

April 16, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 19, 2008

Macey-Dare on Litigation Costs, Settlements, and Game Theory

Posted by Jeff Lipshaw

Rupert Macey-Dare (St. Cross College, Oxford) has posted Litigation Cost Strategies, Settlement Offers and Game Theory on SSRN.  Here's the abstract:

Starting with a simple economic model of the value of civil litigation from each side's perspective, this paper analyses a wide range of potential litigation cost strategies, settlement offers and negotiations, together with relevant applications and insights from game theory. Specific issues examined include: optimal settlement agreements, optimal settlement timing, optimal choice of lawyers; principal-agent problems aligning lawyer cost incentives; optimal client-lawyer contracts; "Conditional Fee Agreements" (CFAs); success rules and size of success premia; the exploitation and mitigation of liquidity and bankruptcy constraints; impact of collateral, "Security for Costs" and "Freezing Orders"; optimal "Part 36 Offers"; public and "without prejudice" offers; fixed rate and state-contingent offers; the role of mediation and alternative dispute resolution (ADR); the effect of litigant group size, co-ordination and class actions; rationale for confidential no-liability settlement agreements; effects of legal aid; time-value to trial and optionality of news; the impact of the "Law of Costs"; optimal trial cost applications and requests for "leave to appeal". Both familiar and paradoxical new results are confirmed by the analysis

March 19, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession | Permalink | Comments (0) | TrackBack (0)

Monday, March 17, 2008

Macey-Dare on Restricted Entry To the English Bar (Part of the Legal Profession) by Vocational Training Requirements

Posted by Alan Childress

Rupert Macey-Dare (Oxford [St. Cross College] and the director of Oxford Informatica) has posted to SSRN his article, "'Practicing Certificate Risks' in the Market for Advocacy," as part of the series on developments at the English Bar, and its relationship with the Solicitors' profession. This paper concerns lower entry rates for Barristers (the Bar) in England and Wales.  I posted on an earlier paper from his series in this LPB post last June.  The abstract to the new paper is:

This paper considers two types of practicing certificate risk, relevant to the Bar of England and Wales, plus related sections of the Neuberger Report 2007.

The first of these risks could be called New barrister practicing certificate risk. This is the risk for a qualified applicant of never gaining the Bar practicing certificate because of restricted supply of preliminary approved pupillages. The paper argues, contrary to the Neuberger Report, that perception of this risk is much more likely to deter potential applicants from minority groups from ever training for the Bar, than any outdated perceptions of stuffiness or snobbery. The Neuberger Report acknowledges that this risk has recently risen to around 75%. Its recommended remedy is to reduce annual BVC graduate production and bring it into line with current annual approved pupillage availability. Acknowledging that a direct numerical cap on BVC numbers could infringe competition law, the Neuberger Report recommends the introduction of a raft of academic improvement measures designed to achieve this reduction in numbers by other indirect means.

The second of these risks could be called Solicitor-transfer practicing certificate risk. This is the risk to established Barristers of BVC graduates excluded from the Bar by unavailability of pupillage, subsequently transferring over to gain their practicing certificates as Solicitors, with special training and interest in advocacy. Given the relative sizes of the two professions and ratio of annual BVC graduate production to annual approved pupillages, this process could quickly lead, if left unchecked, both to a large increase in the overall number of advocates licensed to practice and to a larger number of advocates in the Solicitors than Barristers profession. The risk therefore to the Bar is that it could lose its traditional position as quasi-monopoly supplier of advocacy services in England and Wales, together with any associated monopoly profits. N.B there is no direct discussion of Solicitor-transfer practicing certificate risk in the Neuberger Report. Nevertheless, the BVC graduate reduction measures recommended by the Report are certainly consistent with addressing this risk as well.

March 17, 2008 in Abstracts Highlights - Academic Articles on the Legal Profession, Comparative Professions, Hiring | Permalink | Comments (0) | TrackBack (0)