Interests of Justice: Reforming the Legal Profession.

• Author: Harris, Angela P.
• Position: Book Review

In her new book, In the Interests of Justice: Reforming the Legal Profession, Deborah Rhode applies her trademark lucidity and good sense to what she describes as the "conventional wisdom" that today's legal profession is "lost," "betrayed," and "in crisis." (1) Rhode acknowledges that hand wringing about the loss of professionalism in the legal profession has been around for nearly as long as the profession itself, and she is appropriately skeptical about the claim that lawyers are less honest or less civil than they used to be. (2) There are real problems, nonetheless, and chief among them are a serious lack of access to justice for the non-wealthy and lawyers' own significantly deteriorating quality of life. Rhode sees these problems as structural in nature, and thus her reform agenda is structural as well:

The public deserves reasonable access to legal assistance and to legal processes that satisfy basic standards of fairness, integrity, and efficiency. It also deserves a regulatory system that can enforce those principles and ensure accountability for the results. Lawyers deserve conditions of practice that will reinforce ethical values in the service of social justice. And they deserve workplaces that encourage equal opportunity, public service, and a decent quality of life. Meeting these challenges will require reforms on several levels. First, we need to harness market forces to promote more and better choices in legal services, legal workplaces, and legal education. Second, we need to provide more effective responses to market failures, which, in turn, means giving the public a greater voice in oversight structures. And finally, we need to socialize lawyers to accept more personal responsibility for their professional actions, their working conditions, and their regulatory processes. (3) These goals are clearly desirable, and the strategies Rhode advocates to achieve them are sensible and concrete. She proposes changes to professional ethics that would force lawyers to think beyond "some fixed conception of role that denies personal accountability for public consequences or that unduly privileges clients' and lawyers' own interests." (4) She favors reforms in professional codes, legal standards, and organizational structures that would curb the excesses of the adversary system, such as experts for hire, the coaching and the victimization of trial witnesses, and the immoral or outright illegal behavior of lawyers themselves. (5) She suggests ways to alter the incentives for firm lawyers to reward themselves handsomely at the expense of clients, (6) and ways to "create a culture of commitment to public service" in law schools. (7) As Rhode acknowledges, it cannot be assumed that this myriad of structural changes will eliminate all greed, injustice, dishonesty, and incivility in the legal profession, but her proposals are as good a place as any to begin.

Ironically, Rhode argues, the biggest obstacle to reform has been the American legal profession's "own unwillingness to come to terms with what the problems are." (8) This denial stems from "two central conflicts: the tensions between lawyers' economic and non-economic interests, and the tensions between professional and public interests. Money is, of course, at the root of both conflicts." (9) Lawyers want it all: high salaries and moral respectability; justice for all and a monopoly on the provision of legal services; public trust and no pesky regulation or public accountability. Rather than acknowledge the reality of conflict among these goals, Rhode charges, the organized bar undertakes feel-good public relations campaigns and issues moral exhortations. As in her famous analysis of institutional sex discrimination--the "no-problem problem" (10)--Rhode thus ultimately calls lawyers on their collective denial and, hence, complicity.

I wonder, however, whether one reason these reforms or others have not yet occurred--and why the organized bar seems to perceive a crisis yet also seems paralyzed in the face of it--is not only lawyers' own reluctance to face facts and make hard choices, but the headwinds against which reformers must struggle. These include economic "turbo-capitalism" and the slow degradation of a broader civic culture, and as a result of their turbulence, Rhode and other sympathetic observers of the profession may find themselves reforming alone.

I.

The lawyers with corporate clients who make the most money and have the most prestige in the profession--those whom Rhode identifies as standard-setters for the profession (11)--have recently been caught up in a period of rapid marketization of their practice. Dennis Curtis ably summarizes the conditions now facing partners and associates in large law firms:

From recent graduates and popular culture, a somber view emerges, in which the economics of firm practice create a focus on the "bottom line" leading to relaxation of ethical standards, requirements for increased billable hours, erosion of loyalty toward both associates and partners, impersonal workplace relationships, and a reduction of the time and effort that was once devoted to training associates to be competent lawyers. The idea of a client having a longstanding relationship with one firm has lessened, if not altogether disappeared. The relationship between lawyer and client has become a series of business dealings. Single transactions with a variety of law firms allow clients to compare expertise, shop and bargain for lower rates, and demand immediate response. As one lawyer ruefully told me, "clients know what we can do and how fast we can do it, and think nothing of imposing deadlines that make us worry about whether we're providing the best service to them." The sense of being exploited by clients is mirrored by a willingness to exploit; the prevalence of single-transaction relationships also encourages lawyers to view clients as short-term revenue sources. (12) The consequences of marketization are many. Curtis observes that prestige is increasingly measured only by "billable hours, partner profits, and market share in a practice area or in a city" rather than "peer recognition, participation in bar association activities and projects, especially those designed to provide access to justice for those unable to afford it, and leadership of non-law-related civic groups such as symphonies, libraries, and museums." (13) Technological innovations mean that "people can work and be accessible around the clock and that revisions are almost always possible, thereby increasing the work to be done." (14) Curtis was surprised both by lawyers' attention to the accounts of big deals, big cases, and big money found in media outlets such as The American Lawyer, the National Law Journal, and Court TV, and by the resentment managing partners felt about the unwavering focus of these accounts on the "bottom line." (15) Such stories about the business aspect of law, though providing useful information, also exacerbate a sense of competition among lawyers and increase the focus of that competition on money.

This is "turbo-capitalism" for lawyers, spurred both by the increasingly intense competitive pressures facing corporate clients in a rapidly "globalizing" world and by the technological and institutional changes noted by Curtis that affect lawyers directly. (16) In this new environment, there is little or no institutional space for pro bono work and other contributions to the public good; the financial bottom line is necessarily the watchword. Thus the problems that leaders of the profession decry, such as the lack of access to justice for the poor, the decline in pro bono work generally...