The profession and the public interest.

• Author: Rhode, Deborah L.
• Position: American lawyers

It is an honor to join a dialogue with colleagues whose work has been so central to issues of legal ethics and social justice. This brief essay cannot do justice to the scope of their contributions here or in other forums. My aim is simply to highlight some common concerns and respond to some key questions about the appropriate framework for professional reform.

In the Interests of Justice aims to provide a comprehensive overview of the major challenges facing American lawyers. (1) Its focus includes problems in the advocate's role, the adversary system, the conditions of practice, the regulation of competition, the distribution of legal services, the oversight of professional conduct, the standards for admission, and the structure of legal education. From this survey emerge two central claims. The first is that lawyers, both individually and collectively, Should assume greater responsibility for the consequences of their professional actions, for the performance of the legal system, for the conditions of their practice, and for the effectiveness of bar regulatory processes. A second, and related claim is that the public should demand greater accountability from the profession and should assume a greater role in overseeing its conduct and in ensuring access to legal assistance.

On the whole, contributors to this symposium, like most other experts in the field of professional responsibility, agree that there are major problems in the practice of law and the distribution of legal services. (2) But several commentators also raise questions about the appropriate framework for addressing these problems. This essay offers a brief overview of the book's central claims and a response to questions along four main lines. What is the nature of the problem? Is there a single "profession" that can be held responsible for solutions? Is the public interest a sufficiently coherent concern to guide appropriate reform efforts? If so, how can those efforts be mobilized?

1. THE PROBLEM

   In the Interests of Justice explores problems of several forms, including overly zealous representation of those who can afford it; inadequate representation of those who cannot; and insufficient regulatory correctives. A number of the preceding essays focus on specific illustrations of those problems. Anthony Alfieri's discussion of race, Robert Gordon's overview of adversarial abuses, Tanina Rostain's analysis of tax practice, and Dennis Curtis and Judith Resnik's exploration of lawyers' billing provide the kind of in-depth treatment that is critical to effective reform strategies. (3) In the Interests of Justice takes up similar issues in a wide array of other contexts such as confidentiality, civility, competence, access to justice, relations with witnesses, restraints on competition, and bias in the profession.

   These problems arise from multiple sources and call for multiple correctives. Increased competition within and across the profession has intensified pressures to accommodate client demands at the expense of ethical values. Much of the loophole lawyering that Professor Rostain describes, and the obstruction, obfuscation, and deception that Professor Gordon chronicles, is attributable to these dynamics. Competition for status, promotion, and profits also underpins many of the billing practices that Professors Curtis and Resnik explore, which advantage lawyers at the expense of their clients. These problems are exacerbated by weak regulatory oversight from administrative agencies and bar disciplinary systems, along with ineffective internal controls within law firms.

   Ideological as well as structural factors are at work. Lawyers often become habituated to the moral compromises that economic pressures exact. Attorneys who are constantly playing close to the line may lose track of the boundary or lose interest in drawing it. "Everyone cheats a little" becomes the rationalization for "creative" timekeeping, fudging the facts, and willful ignorance on the fringes of fraud. (4) Other lawyers, while more sensitive to ethical problems, manage to place responsibility for addressing them any and everywhere else. For example, many of the procedural pathologies that characterize high stakes litigation are viewed as the "other fella's fault." (5) Judges blame lawyers for greed and incivility. Lawyers blame judges for inertia and laxity. Defense counsel blame trial attorneys for frivolous claims and strike suits. Plaintiffs' lawyers blame opposing counsel for nondisclosure of information and scorched-earth tactics. (6) In fact, there is plenty of blame to go around, and little willingness to support effective structural responses.

   Many lawyers maintain their moral myopia through convenient rationalizations. The prevailing assumption is that zealous advocacy in an adversary system is the best means of protecting rights and promoting truth, whatever its costs in particular cases. Yet this standard justification overlooks key ethical distinctions and empirical realities.

   With respect to the rights-oriented claim, there is a difference between the desirability of protecting individual entitlements such as autonomy, and the desirability of particular autonomous acts, such as evading tax liability or withholding material facts about financial or safety risks. Client autonomy does not have intrinsic value; its importance derives from the values it fosters, such as personal creativity, initiative, and responsibility. (7) If a particular client objective does little to promote those values, and imposes substantial costs on third parties, then the traditional rationale for zealous advocacy lacks ethical foundations.

   Lawyers manage to avoid this conclusion by selectively suspending the moral principle that they claim to respect. If individual rights are of paramount importance, why do only the rights of clients deserve protection? Yet under most bar codes of conduct and prevailing practices, the interests of unrepresented third parties barely figure. Particularly when the client is an organization, these professional priorities are hard to justify. As an ethical matter, why should a corporation's "right" to maximize profits through unsafe but imperfectly regulated methods take precedence over a consumer's or employee's right to be free from reasonably avoidable risks?

   Moreover, an attorney's refusal to assist morally dubious conduct does not necessarily compromise individual rights. Unless the lawyer is the last in town, a refusal to provide representation will not foreclose client choices. It may simply prompt parties to reconsider the ethical consequences of particular actions, or impose the financial and psychological costs of finding another lawyer.

   It is of course true, as Geoffrey Hazard suggests, that lawyers have no special expertise in assessing such consequences, and that "[clients] are quite capable of evaluating ... ethical considerations for themselves." (8) But attorneys will at least have a more disinterested perspective than clients on the moral dimensions of dubious activities. One of the most crucial functions of legal counsel is to help individuals evaluate short-term economic objectives in light of long-term reputational concerns and to live up to their best, not worst instincts. Or, to borrow Elihu Root's celebrated phrase, "[a]bout half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop." (9)

   The truth-related rationalization for current adversarial practices is equally problematic. The underlying premise, that accurate results will emerge from competitive presentations before a disinterested tribunal, depends on factual assumptions that are out of touch with daily realities. The vast majority of legal matters never reach a neutral decisionmaker. Even when they do, disparities in resources, incentives, and access to information often skew results. Surveyed litigators acknowledge as much and report that most cases settle without the other side learning of some material information. (10) In a society that tolerates vast disparities in wealth, high litigation costs, and grossly inadequate access to legal services, the potential for biased outcomes is substantial. In law as is in life, the haves generally come out ahead. (11)

   Of course, a crucial question is always: "Compared to what?" In the Interests of Justice points out that the adversarial system's relative effectiveness in promoting truth is not self-evident; most other nations and professions do not depend on competitive presentations by partisan advocates to develop the facts. (12) Professor Hazard disagrees with what he sees as "the sensible implication of this statement," namely that the "ethical climate [in these other countries' civil law systems] ... is better than the ethical climate in our own system." (13) And, Professor Hazard adds, "I know of no evidence for that proposition." Nor do I, which is why I did not assert it. My argument is not that the "ethical climate" is necessarily better in civil law systems, a claim that would be difficult if not impossible to substantiate. My argument rather is that there is no basis for assuming that our own adversarial norms are the best available in all respects, including the pursuit of truth. Some aspects of civil law systems could provide promising models for reform, such as greater reliance on neutral experts, more judicial oversight of the fact-finding process, and more limitations on partisan selection, coaching, and mistreatment of witnesses. (14)

   We might also do well to reexamine our own system for delivering legal services to the have nots. It is a shameful irony that the nation with the world's highest concentration of lawyers has done so little to make their services broadly available. America spends only about eight dollars a year on legal assistance for every person officially classified as poor, a much smaller fraction of the GNP than many other...