Rejecting the culture of independence: Corporate lawyers as committed to their clients

• Published date: 24 September 2010
• DOI: https://doi.org/10.1108/S1059-4337(2010)0000052005
• Date: 24 September 2010
• Pages: 33-71
• Author: Robert Eli Rosen

REJECTING THE CULTURE OF

INDEPENDENCE: CORPORATE

LAWYERS AS COMMITTED TO

THEIR CLIENTS

Robert Eli Rosen

ABSTRACT

This chapter proposes that corporate lawyers be studied as committed

to their clients, asking how they advance exercises of power by those

whom they have chosen to represent. Currently, corporate lawyers are

studied as independent from their clients, asking how they resist client

demands. Such research continues despite repeated findings that

corporate lawyers are not independent. This chapter explains the puzzling

persistence of independence by cultural understandings of both profes-

sionalism and law. It recovers a submerged historic voice in which

corporate lawyers are judged by their position in a network of relations. It

argues that it was the organization of the corporate law firm as a factory

which allowed it to become a professional ideal. Market competition has

led corporate law firms to move away from a factory model to one in

Special Issue: Law Firms, Legal Culture, and Legal Practice

Studies in Law, Politics, and Society, Volume 52, 33–71

Copyright r2010 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2010)0000052005

33

which commitment to clients, not independence from them, is the

organizing principle.

Firms boast of their independence from clients y[y]et virtually from its inception the

large law firm has been attacked for ydiminish[ing] the ability of lawyers to make

informed ethical judgments. (Nelson, 1988, p. 231)

Robert Nelson’s research debunks the independence of corporate law firms

from their clients and the autonomy of lawyers within them to deviate from

their clients’ wishes. As he notes, he joins a long tradition of denying lawyer

independence not only from their clients but also from their firms. And that

tradition has continued unabated (see, e.g., Heinz, Nelson, Sandefur, &

Laumann, 2005).

Despite repeated findings that corporate lawyers arenot independent from

their clients, independence persists among those who ‘‘use and think about’’

(Ewick & Silbey, 1998, p. xi) corporate lawyers and their firms. For example,

economists use the ability to post a reputation for independence as a bond in

order to explain the existence of law firms (see, e.g., Ribstein, 1998). It is part

of legal culture that corporate lawyers and law firms are analyzed, by

researchers at least, through the lens of independence. The fundamental

research question asks whether lawyers can resist client demands and

whether law firms can sustain such independence.

I propose that corporate lawyers and their firms be studied by thinking of

them as committed to their clients and inquiring as to how they handle these

commitments. Instead of asking whether they are really independent, we

should ask how they engage with their clients and their projects. Instead of

presuming that they are neutral toward their clients’ ends, we should presume

that they have chosen interests to promote. Instead of asking whether law

firms have power to escape client control, we should ask how they advance

their clients’ exercises of power.

There are at least four advantages to thinking about corporate lawyers as

committed to their clients. First, such an approach comports better than

independence with the reality of corporate lawyering. Second, it focuses on

organizational goals, in addition to lawyer agency. Third, it can build on the

perspectives and research findings of the cause lawyering project. And

fourth, it politicizes corporate legal practice.

First, thinking of corporate lawyers as committed to theirclients may better

describe practice than thinking about them through the lens of independence

because ‘‘it is unrealistic to think of corporate lawyers as neutral

professionals’’ (Nelson, 1988, p. 249) and ‘‘[t]he notion that lawyers struggle

ROBERT ELI ROSEN34

with their clients over fundamental questions about the common good is

simply wrong’’ (Nelson, 1988, p. 258). Since they are not neutral, examining

the nature of their commitments may be a more fruitful line of research than

examining their independence. Since they do not disagree with their clients’

worldviews, examining their and their clients’ value commitments may be a

more fruitful line of inquiry than examining the fate of independent

professional values. Asking how they elaborate their commitments to clients

may better describe the choices facing corporate lawyers than thinking about

them as attempting to maintain independence from clients.

Second, thinking of corporate lawyers as committed to their clients’

projects emphasizes that lawyers help determine and are determined

by the organizational needs and capacities of their clients. It also emphasizes

that successful law firms are those which adapt to meet client needs.

Thinking through independence: (1) segregates lawyers from clients; (2) the

maintenance of lawyer professional privileges and orientations is the issue;

(3) ethical lawyers have an agenda to impose on their clients; and (4) law

firms are praised for not demanding that their lawyers always supply what

clients demand. Thinking through independence makes suspect the

organizational needs of both clients and law firms. Yet, these needs are

what shape the practice of law:

The needs of the organizations, as perceived and defined by the organizations, shape

lawyers’ careers, direct their work, and influence their prospects for success – financially,

professionally, and perhaps even in their personal lives. (Heinz et al., 2005, p. 320)

Rather than asking whether lawyers can withstand the needs of their

clients and firms, thinking through lawyer commitments asks how they

are organized to serve their clients. We can examine the ways in which

law firms and corporations organizationally map onto each other, shaping

what is demanded from lawyers and how what lawyers supply is received.

We can treat the firm and the corporation as partner organizations, enabling

a view of how power flows between them and how their interests are jointly

determined.

Third, thinking through corporate lawyers as committed to their clients

allows the use of perspectives that have been so useful in describing ‘‘cause

lawyers’’ (see Sarat & Scheingold, 1998, for an introduction). Research on

‘‘cause lawyers’’ has examined the fate of commitments in lawyering. It has

elaborated ways in which lawyer projects may differ from client projects.

It has elaborated ways in which lawyers and legal organizations influence

client agenda and vice versa. It emphasizes client projects, not legal services,

but studies both in their relations to power. Researchers who think through

Rejecting the Culture of Independence 35