In the Interests of Justice: Reforming the Legal Profession.

• Author: Gordon, Robert W.
• Position: Book Review

Reading Deborah Rhode's book on the legal profession is a profoundly depressing experience. This is precisely because of the book's understatement. Unlike many of the recent jeremiads lamenting the fall of the profession from a golden age of ethical practice and public service, In the Interests of Justice is far from an undiscriminating broadside against the bar and its works. Rhode strives to be restrained, temperate and discriminating in her critiques. Unlike most of the political and media critics of the profession, she relies on a substantial body of sober research on lawyers and their work rather than on anecdotal horror stories. Indeed she uses this research to defend lawyers against some of the more common attacks on them, such as that criminal defense lawyers regularly bring about the release of dangerous criminals on "technicalities," and that personal injury lawyers are seriously damaging the American economy by deluging businesses with frivolous lawsuits. (The real scandals, as she points out, are that most accused criminals get no effective representation at all and that most valid personal injury claims never reach the tort system and remain uncompensated.) Nor is her book purely destructive, an indictment without remedies. Although often acerbic, her tone is detached and diagnostic rather than polemical or accusing. She has many practical proposals for reform, which on the whole are modest, incremental, sensible, and entirely feasible.

So why is this book so depressing? For three reasons. First, because when you add up all of Rhode's restrained, discriminating, understated critiques, they sum to a notably bleak total picture of the practices, attitudes, and working styles that lawyers have come to accept as regular components of their jobs. Second, and more disturbing, her book draws a portrait of a profession so habituated to these practices and the mentalities that sustain them, so prone to denial about some of the resulting pathologies, or else so self-interested, fragmented, timid, or paralyzed, that it is most unlikely to take any collective action to reform them, and likely if anything to resist and effectively defeat any outside agencies' efforts at reform. Third and most sadly, the legal profession Rhode portrays is one that seems to have forgotten its dreams of greatness--its historic conviction that American lawyers, as much as or more than any other occupational group or association, could assume a great constructive leadership role in the state and society.

Let me say something briefly about each of these themes:

1. HABITUAL PRACTICES AND ATTITUDES

   Here Rhode covers ground that is mostly familiar to observers of the legal profession. But by bringing together so much work into a general synthesis, she enables the reader to survey the whole wide terrain of the problem. To summarize her findings in a nutshell, they are that lawyers have a core set of commitments, certain basic hard nuggets of professional conventional wisdom. Mostly they take these for granted, but, if they have to, they justify those commitments, and the habitual practices that have evolved to serve them, by reference to their socially beneficial aggregate effects. The trouble with these commitments and practices and their justifications is that in many situations it is plainly demonstrable that the practices have very bad social effects, sometimes effects subverting the very values--justice, troth, individual dignity and freedom, and public welfare--they are supposed to serve. Moreover, whenever acting on even their best core commitments starts to seriously grate against lawyers' self-interest, they are prone to compromise or abandon the commitments. To illustrate:

   1. Lawyers' Prime Core Commitment Is to the Virtue of the Role of the Zealous Advocate

      Lawyers' prime core commitment is to the virtue of the role of the zealous advocate. That role is justified by its supposed benefits in (a) serving an overall process (the adversary system) that promotes truthful fact-finding, and (b) guarding the rights, autonomy, and dignity of clients--protecting them from harm and promoting their freedom to pursue their freely-chosen life projects.

      As Rhode, following many previous critics, points out, the chief problem with justification (a) is that most people are priced out of the adversary system and can afford only weak advocates or none at all. (1) Even with both sides well-represented, adversary advocacy in actual fact often operates to obscure truth. Effective resistance to discovery keeps essential evidence out of the case. Effective cross-examination discredits truthful witnesses. Adversarial presentation of expert testimony, using distortion to cancel out distortion, produces more confusion than light.

      The chief problems with justification (b) are that it fails to distinguish exercises of autonomy that deserve protection from those that do not, and ignores harms that clients, assisted or protected by lawyers, may inflict on others or on society. It does not weigh such harms to others in the balance and discount them against the client's interests; it willfully ignores them, treating them as literally irrelevant to the justice of the lawyer's representation. It is easy to understand why a lawyer may justly object to the introduction of evidence against her client seized in an illegal search: Her objection helps (however clumsily and indirectly) to preserve all our interests in constitutionally scrupulous police procedure, in not having our doors broken down at three in the morning without probable cause certified by a judge. It is far harder to understand why a lawyer for a savings-and-loan company that is gambling recklessly with taxpayer-insured deposits may justly help that company obscure the riskiness of its loans from regulators whose job is to protect the public funds; or, to take an example currently in the headlines, why lawyers for an energy company may justly help the management set up hundreds of offshore havens that avoid its having to pay taxes, or create hundreds of outside partnerships whose evident function is to keep debts and losses off the books and hidden from investors and employees, or make offerings of special opportunities to select rich investors with access to company financial information kept secret from the investing public. Even if all these schemes should turn out to be (at least arguably) technically legal, what values of overall human flourishing or individual self-fulfillment or economic efficiency are served by helping clients promote them? Freedom generally is a good thing, to be sure; but there is no virtue per se in action, any old action, that is freely chosen, if it is likely to bring destruction in its wake--including, in these examples, harm to the real clients themselves, not their incumbent managements but the long-term corporate entities and their constituent stake-holders.

      At any rate, the norm of all-out, go-for-broke, damn-the-torpedoes zealous advocacy, in actual practice, turns out to be binding only so long as it is profitable to the advocate. If it starts to cost too much in foregone fees, or shares of contingent settlements, or beneficial continuing relations with judges or prosecutors, it tends rapidly to shrink to the vanishing point. Lawyers who swear their ethic is to defend clients to the death apparently see no problem in routinely padding their bills to those same clients. (2) Even the bar's most sacred ethics rules of confidentiality are suspended if the lawyer gets into a fee dispute with a client. (3)

   2. Lawyers Are Committed to the Norm of Nonaccountability

      Lawyers are also committed to the related norm of nonaccountability--that they are not morally responsible for the actions of clients that they help defend. The main justification for this norm is that everyone is entitled to representation, and that lawyers must not be tarred with the sins of clients, lest that lead them to ignore unpopular clients. Taking on a client should not imply adopting his cause. But this norm, as Rhode says, is coupled with another that deprives it of most of its force: that lawyers may decline clients who are repugnant to them (or for any other reason). In actual effect the norm only encourages lawyers to take on unpopular clients who are also rich; the bar has "generally avoided social pariahs with shallow pockets" (4)--such as African-Americans in the age of Jim Crow or Communists in the 1950s or all but wealthy criminal defendants in any period. A profession seriously committed to seeing that every side was represented would make itself a common carrier or public utility or adopt something like the (widely evaded but still aspirationally vital) British barrister's "cab-rank rule," prescribing that lawyers must take on the next client who asks for their services, or at least maintain a rotating pool of lawyers of last resort to take the cases nobody else wants.

   3. Lawyers Hold (Selectively) Sacred the Norm of Confidentiality

      Lawyers hold the norm of confidentiality so sacred that they enact rules forbidding them to disclose client secrets even when concealment is likely to cause serious harm (short of serious bodily harm or death). The rationales for this norm are that, in the case of past conduct, the client must trust the lawyer enough to give him the facts needed to present all legal defenses, and, in the case of future conduct, the lawyer whose client trusts him enough to disclose his plans will be able to prevent the harms by advising his client to desist.

      The problems with these rationales are that (a) there is little evidence that exceptions to confidentiality rules significantly inhibit clients' willingness to talk to their lawyers; (b) lawyers in practice often try very hard not to find out what clients are up to, so that they will not have to face ethical dilemmas in presenting defenses or advising clients; and (c) judging by many examples of recent...