In the Interests of Justice: Reforming the Legal Profession.

• Author: Alfieri, Anthony V.
• Position: Book Review

INTRODUCTION

Deborah Rhode is a highly acclaimed scholar and a distinguished public servant. (1) Prolific in both academic scholarship and popular commentary, she is the author of numerous books, articles, and essays on the law and the legal profession. In an important convergence of her roles as a scholar and a public intellectual, Rhode recently returned to the subject of the profession in a new book titled In the Interests of Justice: Reforming the Legal Profession. (2) Like her prior work, In the Interests of Justice profoundly enriches the discourse of ethics and professionalism. Equally important, taken as part of a larger normative enterprise, it inspires others to pursue justice-seeking projects. (3)

For many, the subject of contemporary justice in American law at the hands of its heralded profession might prove a daunting project. (4) Yet, for Rhode, the subject affords an opportunity to enlarge a body of scholarship already stunning in its breadth and virtuosity. Rhode's scholarship engages two main fields of study: equality (5) and gender, (6) and ethics (7) and professionalism. (8) In the Interests of Justice addresses primarily the latter. Rooted in interdisciplinary literature, its genealogy combines multifarious antecedents. On the politics of law and ethics, the book garners from the work of Richard Abel, (9) Robert Gordon, (10) William Simon, (11) and David Wilkins. (12) On gender in law and the profession, it culls from the research of Barbara Babcock (13) and Judith Resnik. (14) On judgment and the neo-classical lawyer, it draws upon the writing of Anthony Kronman. (15) And in philosophy, it winnows from the texts of David Luban. (16)

Rhode's publicly espoused normative commitments and her seamless integration of interdisciplinary materials give her work a strongly reformist cast. Indeed, for Rhode, In the Interests of Justice "is a book with a reform agenda" calling for "fundamental changes in professional responsibility and regulation." It strives, she declares, to crystallize "the challenges facing the legal profession." To that end, it urges "a more searching analysis by both the profession and the public about the points at which their interests diverge." (17) That wide-ranging analysis encompasses the conditions of law practice and the distribution of legal services, the advocate's role in the adversary system, the regulation of lawyers' conduct, particularly the "economic, psychological, and political constraints" of lawyer self-regulation, (18) and the structure of legal education. The central premise of the book stems from the notion of the public interest and Rhode's lament that it "has played too little part in determining professional responsibilities." (19)

This essay takes up Rhode's premise of a core public interest in American law and society, and seeks to join that interest to identity and community-based reform movements. The essay is divided into three parts. Part I parses In the Interests of Justice for its guiding principles of reform. Part II links race and reform to the criminal justice system, specifically with respect to the prosecution and defense of racial violence. Part III connects identity and community to lawyer-engineered reform strategies.

1. LIBERAL REFORM

   In eight elegant chapters, In the Interests of Justice takes up the foremost issues of the day in the American legal profession. Starting from the notion of a modern profession, Rhode establishes both the predicate and the metric of the public interest at once to guide and to gauge social progress. Unlike others who hastily invoke the shibboleth of the public interest to advance the ends of a group or an ideology, Rhode declines the crude embrace of self-interest and elides the tendency to closet sociolegal definition with rigid demarcation. Instead, she introduces the concept of the public interest in an open, other-regarding sense, as an unbounded field to be mapped and redrawn periodically. (20)

   The openness or receptivity to plural interpretation of the public and its diverse interests amounts to more than a liberal gesture. For Rhode, this stance comes as an article of faith tied to the twin belief in liberal dialogue and feminist reasoning. Rendered favorably, liberal dialogue offers deliberative modes of reciprocity and mutual respect in the service of shared contractarian or communitarian ends. When confronted by difference (race, class, gender) and the clash of identity, dialogue often falls into disagreement over the means to and the wisdom of such ends. Less trusting of liberal legalism, feminist reasoning strives to overturn hierarchical modes of logic based on power and privilege in order to uncover and liberate suppressed forms of egalitarian and inclusive reckoning. By turns pragmatic and contextual, feminist analysis seeks to reintegrate suppressed forms of reasoning into the multiple texts (oral, written, and symbolic) of everyday social practice to better create the conditions for democratic dialogue. Feminist dialogue entails reciprocity and mutuality deepened by an intuitive trust presumed to be beyond the atomistic rationality of liberal individualism.

   Rhode engages liberal and feminist methods to decipher the dominant epistemological, interpretive, and discursive practices of the legal profession. Deftly and tenaciously, she dismantles these practices and their normative underpinnings discovering deep and perhaps irreconcilable conflicts between the profession and the interests of the public. She locates this abiding and perhaps insoluble conflict in the structure of the profession, its adversary system and juridical institutions, and its regulatory canons. To Rhode, neither legal education nor professional reform may possess the forces necessary to shed the weight of oppressive sociolegal structures that cabin the freedom and efficacy of lawyers in serving the public interest.

   Rhode initiates her conflict analysis broadly, surveying the countervailing interests and perspectives of the public and the profession. (21) The survey discloses "a profession permanently in decline." Citing "structural factors" of discontent and an ever-widening "distance between professional ideals and professional practice," Rhode bewails a "lost... connection to the values of social justice" exacerbated by "symbolic crusades and policy paralysis." (22) For the public and its popular culture, that normative forfeiture results in harsh attributions of lawyer avarice, accusations of amoral advocacy, and democratic incredulity about "the tension between money and justice." (23) For the profession, (24) such abdication causes consternation over the growing delivery of legal services by nonlawyers, (25) the declining pro bono commitment of lawyers and law students, (26) the rise of overzealous advocacy, (27) and the continuing underrepresentation of women and minorities in established status hierarchies. (28) To Rhode, these breaks in the idealized vision of lawyers explain the "dispiriting disjuncture between current norms and traditional aspirations" (29) and the consequent culture of discontent infecting the profession and the public.

   To repair these fissures, Rhode searches out the nature of lawyer discontent. (30) She examines the main sources of that discontent, (31) their ties to the structure of practice (32) with its attendant free enterprise profit-impulse (33) and hollow meritocracy, (34) and their susceptibility to alternative practice forms and dynamics. (35) She frames this analysis in the context of the adversary system, (36) tracing the evolution of the advocate's role, (37) sketching the function of partisanship (38) and its coincidence with professional interests, (39) and proffering alternatives (40) even in the face of unpopular causes and clients. (41) Expanding further, she fastens the adversarial precept to the American sporting theory of justice, (42) revealing its procedural foundations, (43) its dissonant account of witness testimony, (44) and its dubious commitment to confidentiality. (45)

   Adroitly balancing analysis and critique, Rhode sharpens her conflict inquiry in contemplating reform of the profession. Discounting the rhetoric of reform, (46) she charts the growth of the profession, (47) the rising costs of litigation, (48) and the post-war surge of legal regulation. (49) She contrasts this burgeoning field with the inadequacy of alternative dispute resolution procedures (50) and the insufficiency of nonlawyer conflict resolution services. (51) These deficiencies retreat against her bristling critique of institutional lawyer regulation. (52) In mustering that criticism, Rhode scrutinizes the rationale for regulation, (53) especially in advertising and solicitation, (54) the logic of bar admission (55) and continuing legal education requirements, (56) the crux of competence and discipline standards, (57) the incidence of malpractice, (58) and the explosion in legal fees. (59) Within this wide ambit of scrutiny, Rhode closely inspects legal education, (60) evaluating its structure, (61) its commitment to diversity, (62) its methods and priorities, (63) its professional responsibility curriculum, (64) and finally its professional values and pro bono opportunities. (65) Rhode concludes that structural reform of the profession must overcome substantial but "by no means insurmountable" obstacles. The focal points for such reform are the public and the profession. For Rhode, the public must gain greater voice in and control over the content and enforcement of legal processes and ethics. Likewise, lawyers faithful to the profession must "assume greater moral responsibility for the consequences of their professional conduct and for the adequacy of their own regulatory processes and working conditions." (66)

   Carefully distilled, Rhode's guiding principles of reform celebrate professional autonomy, moral accountability, liberal citizenship, and egalitarian politics...