In the Interests of Justice: Reforming the Legal Profession.

• Author: Hazard, Jr., Geoffrey C.
• Position: Book Review

An article in the New York Times on May 29, 2001 began as follows: A federal program to protect patients from incompetent doctors is failing because health maintenance organizations and hospitals rarely report those doctors to the government as they are required to do, federal investigators say. Under federal law, H.M.O.'s and hospitals are supposed to inform the government of any disciplinary actions taken against doctors for incompetence or misconduct. But in the last decade, 84 percent of H.M.O.'s and 60 percent of hospitals never reported a single "adverse action" to the government.... The low level of reporting occurred even though a government study found that tens of thousands of Americans die each year because of medical errors ... [F]rom 1990 to 1999 ... H.M.O.'s reported only 715 adverse actions. Officials offered these examples ... performing surgery on the wrong side of a patient's body; providing a fatal overdose of drugs; performing unnecessary surgery; engaging in sexual relations with patients; prescribing narcotics for the doctors' own use; repeatedly billing Medicaid for services never provided. (1) The situation in the medical profession thus described seems to me a suggestive basis of comparison with issues addressed by Professor Rhode. These issues include that of understanding the "structure" of the problem and the possibilities for directed change, i.e., "reform." I agree with many of Professor Rhode's critical observations about many American lawyers. Thus, I agree that many lawyers are greedy, deficient in integrity, overcompensated, preoccupied with the "bottom line," excessively zealous, and indifferent to pro bono responsibilities. I also agree that many of them maintain a vested interest in a cumbersome and expensive system that imposes an "overload of law in daily life." (2)

I disagree with some of Professor Rhode's other assessments. For example, she says that the "bar codes of conduct have progressively narrowed the ethical discretion that lawyers are expected to exercise." This statement is true only in the peculiar sense that the bar codes have progressively imposed a number of more exacting legal duties on lawyers, and thereby narrowed the zones in which lawyers formerly had unregulated discretion. For example, it used to be that a lawyer had discretion whether to commit a contingent fee agreement to writing, whereas doing so is now a legal duty under Model Rule 1.5. It used to be that lawyers had no ethical duty (as distinct from legal duties such as that imposed by Rule 11 of the Federal Rules of Civil Procedure) to refrain from unsupportable litigation positions. Under the bar codes of today, for example in Model Rule 3.1, a lawyer is now subject to the duty of acting as "gatekeeper" in litigation. It is, of course, a further and more complex question as to whether lawyers actually observe the duty prescribed in Rule 3.1. It used to be that lawyers had no definite duty to separate client trust funds from the lawyer's proprietary account at the bank. There is now such an obligation under the terms of Rule 1.15. At the same time, the bar codes recognize that lawyers have very broad discretion in considering whether they undertake an engagement, (3) concerning the scope and character of a representation, (4) and in deciding whether to withdraw from a representation. (5) Moreover, in these and other areas in which lawyers have discretionary authority, there are no respectable data, but only endless anecdotes about how that discretion is exercised by lawyers today as compared with lawyers of yesteryear.

In any event, if professional discretion accorded to lawyers has been narrowed, and if it has been narrowed by the Code of Professional Responsibility and the Rules of Professional Conduct, that result, according to my observation, has been in part a response to critics of the profession--such as Professor Rhode--and not to what might be called "establishment sentiment" within the profession. Put differently, I believe that most self-respecting lawyers probably believe that they could function just as well with a Code that said, "Use good professional judgment," whereas it is critics who have wanted express rules governing competence, communication, written fee agreements, avoidance of sexual relationships with clients, greater specification of duties to disabled clients, etc. Personally, I have favored most of these regulatory impositions, which "the bar" (whatever that is) has been instrumental in imposing on itself.

I also disagree with the implication of a reference by Professor Rhode to other legal systems. She says, "[t]he vast majority of countries do not have an adversary system; they rely primarily on judges or investigating magistrates, not partisan advocates, to develop a case." (6) The sensible interpretation of this statement is that the ethical climate in the civil law countries (i.e., those that do not have the adversary system) is better than the ethical climate in our system. I know of no evidence for that proposition. I am presently engaged, with an Italian colleague, in a comparative study of lawyers' roles in those other systems. The situations in other regimes are various and complicated--Germany is not Brazil, for example, although both have the judge-dominated "inquisitorial" system of adjudication. However, lawyers in the civil law systems have work and responsibilities much the same as those contemplated in American law, and compared with American lawyers, lawyers elsewhere are just as partisan, if not more so. It is simply that in civil litigation in the civil law regimes, the advocates must use techniques of lower visibility.

Professor Rhode's remark about not having an adversary system is, in today's academic discourse, code language for disapproval of the lawyer's role as it has come to be performed in this country, compared with, for example, Canada or England. More on that below. At a different level of response, I must express severe unease at what might be called the political logic of Professor Rhode's address of the deficiencies of our profession and the possibilities for their amelioration. Her approach is to identify a pattern of wrongdoing attributable to some lawyers, acknowledge that not all lawyers are equally guilty of that misconduct, and then suggest specific role changes that are designed to correct the pattern of conduct. For example, she suggests that law firms should give more sympathetic attention to the personal situations of women lawyers and to the recruitment of members of racial minorities. So also, she suggests that lawyers should have a more explicit obligation to render pro bono services. These...