The citizen lawyer and the administrative state.

AuthorRubin, Edward

TABLE OF CONTENTS INTRODUCTION I. LAW, LAWYERS, AND LEGAL EDUCATION IN THE REGULATORY STATE A. Law B. Lawyers C. Legal Education II. FROM OBEDIENCE TO COMPLIANCE A. Obedience B. Compliance III. THE CITIZEN LAWYER'S STANCE IN A COMPLIANCE ENVIRONMENT: AN EXAMPLE IV. EDUCATING THE CITIZEN LAWYER CONCLUSION INTRODUCTION

A citizen lawyer is an ethical lawyer, that is, a lawyer who represents a client's interest without counseling the client to ignore the norms that enable society to function in an equitable and efficient manner. Despite a lively academic debate about the ethically acceptable approach to legal counseling, (1) a moderate position on this issue that most practicing lawyers would accept can be readily delineated. To say that the citizen lawyer follows the spirit as well as the letter of the law goes too far; law is typically a matter of language, and the lawyer is generally entitled to treat that language as determinative. (2) Much of the value that a client derives from legal representation lies in the lawyer's ability to interpret legal rules creatively in order to advance the client's interest. But the citizen lawyer also recognizes limits to this creative interpretation of the law. He or she will avoid interpretations that are manifestly wrong and that violate legal rules. Alternatively, the citizen lawyer can be described as someone who will avoid interpretations of the law that prevent society from achieving its democratically defined, legally enacted goals, thus linking the ethical ideal to more general conceptions of public citizenship. The citizen lawyer should try to persuade the client to adopt that lawyer's ethical perspective, or at least to recognize that the short-term gain derived from rejecting that perspective will be counteracted by long-term reputational loss. If the client cannot be persuaded, then the lawyer should withdraw from the representation.

All of this is familiar enough, but it is nothing more than a set of empty bromides unless the norms that are supposed to guide the citizen lawyer can be identified with some degree of specificity. The Model Rules of Professional Conduct purport to identify such rules, (3) and law school legal ethics courses purport to teach them. Even a cursory examination of the Model Rules and published teaching materials, however, reveals that these rules are conceived and presented with the paradigm of common law, and specifically common law litigation, in mind. (4) The Rules thus conform to our traditional notions about the nature of legal practice, notions that are perpetuated by the traditional law school curriculum. (5) The difficulty is that our legal system and our understanding of law have changed during the course of the previous century. (6) The most important change is the advent of administrative governance, a wide-ranging transformation of the nature of the state and its relation to the citizen. (7) With increasing frequency, the role of counseling clients about whether, and to what extent, they should obey the law arises in an administrative context. (8)

This Article explores the obligations of the citizen lawyer and the content of an effective legal ethics course in that regulatory context. Part I discusses the new ethical status of law, lawyers, and legal education that has resulted from the advent of the administrative state. Part II identifies some of the unique problems that confront the citizen lawyer in this context, and Part III offers one example of these problems, taken from the field of banking regulation. Finally, Part IV explores some of the implications of these new complexities for the legal ethics courses that law schools offer.

The scope of this Article is limited in that it does not address the many other legal and conceptual developments that have occurred simultaneously with the rise of the administrative state, such as globalization, the advent of the large law firm, and our increasingly interdisciplinary conception of the legal system. Moreover, the Article focuses only on lawyers representing individuals or profit-making organizations, and thus ignores both government and public interest lawyers. Its arguments, therefore, are exemplary, not comprehensive. Finally, the Article's principal goal is to raise issues rather than reach conclusions; the topic of this Article, even when limited in the manner just described, is simply too complex to be resolved in a discussion of this length. But even this limited and indeterminate discussion is sufficient to demonstrate that our concept of legal ethics, and thus of a citizen lawyer, is seriously out of date.

  1. LAW, LAWYERS, AND LEGAL EDUCATION IN THE REGULATORY STATE

    1. Law

      In the traditional or premodern European state, kings promulgated positive law and limited it to a relatively narrow range of issues, such as maintaining civil order, promoting mercantile activities, and collecting revenue, all of which the medieval state attempted with only intermittent success. (9) In many states, legislative approval of some or all laws was required. (10) The kings of England, France, and Spain could not impose new taxes without the approval of Parliament, the Estates General, and the Cortes, respectively, but the latter two institutions were systematically circumvented by the absolutist monarchies of the sixteenth and seventeenth centuries. (11) In France, all laws had to be approved by the Parlement of Paris, which was a court rather than a legislature, but the requirement became pro forma or lapsed entirely during this era. (12) The English Parliament, in contrast, steadily gained authority, but its legislative actions were largely limited to the same narrow ambit as the royal actions they had superseded. (13)

      Life was highly regulated in the premodern era--in many ways more highly regulated than it is today--but most of this regulation was carried out by private parties or was the product of tradition. The most important private regulator, of course, was the Church, which not only established moral norms, but also prescribed rituals that controlled the rhythms of ordinary people's lives. (14) Guilds promulgated detailed rules for manufacturing and trade, which they enforced by monopolistic domination of their respective fields. (15) Tradition, or local rules that claimed the stature of tradition, controlled other aspects of life, including such quotidian matters as getting dressed, speaking to one's superiors or inferiors, milling one's grain, or grazing one's animals, as well as such extraordinary matters as protecting oneself and one's family. (16) There were many exceptions, of course, but these exceptions usually fit within the general pattern; the sumptuary rules of Tudor England, for example, were promulgated by Parliament but were actually a codification of traditional understanding that the legislature wanted to preserve. (17)

      Disputes between private parties were also subject to legal Rules. (18) These rules were generally made or adopted by the authority that had jurisdiction to decide the dispute. (19) In the early Middle Ages, the authority was typically the local lord, and the specific rules were based on local tradition. (20) The rediscovery of Roman law and the growth of the centralized monarchy during the high Middle Ages led to the creation of national courts, which asserted authority over wealthy people and people whose activities reached past their immediate locality. (21) The common law of England is a product of this process. (22) For common people, however, many disputes and offenses remained subject to purely local adjudication, at least when they were not deemed to have breached the king's peace. (23)

      Much of this has changed with the advent and development of the administrative state. Positive law now covers a vast range of activities, not only in the political and economic realms, but in the realm of civil society as well. (24) Some of this law, particularly in traditional areas such as the maintenance of civil order or the collection of revenue, is promulgated by the legislature, but the great bulk is produced by administrative agencies. (25) These agencies are generally authorized by legislative enactments, but the enactments are what I have previously described as intransitive; they do not consist of rules governing the populace, but rather they provide instructions to administrative agencies, which then issue the actual or operative rules. (26)

    2. Lawyers

      The legal profession in the western world is a product of the Middle Ages. (27) It resulted from a number of interconnected developments, notably the rediscovery of Roman law and the evolution of royal courts, as just described. (28) By the end of the Middle Ages, a person who appeared before a royal court to adjudicate a civil dispute was regularly represented by a specialist in law, and often someone who had been trained for that role. (29) Wealthy and even middle-class people also used lawyers for transactional matters such as transfers of land, inventory, or expensive chattels; for inheritance instruments; and for complex financial transactions. (30) Organizations, particularly the state and the Church, used lawyers extensively for a variety of roles, not always strictly legal ones. (31) In England, however, lawyers were not allowed to appear in criminal trials for ordinary felonies or treason, although they were allowed, and did in fact appear, at misdemeanor trials. (32) In addition, and most importantly for present purposes, lawyers do not seem to have represented private parties very often in matters of the state's positive law because there was very little positive law that directly affected private parties, other than the laws affecting the conduct of trials. Certainly, the sources describing the role of lawyers in the pre-modern era make few if any references to representation of this kind.

      With respect to representation when dealing with the government, the oddities of...

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