The professionalization of ethics.

• Author: Raymond, Margaret
• Position: Professional Challenges in Large Firm Practices

The discussion of training reflected in this conference largely addresses how, in the current climate, we can turn new law graduates into experienced, capable and competent lawyers. My particular interest is in the importance of teaching law graduates to be ethical lawyers. (1) I start with a provocative hypothesis: that the current versions of our ethical rules and the structure of law firms have the potential to encourage the professionalization of ethics rather than connecting all practitioners to the values of professional responsibility.

This development is consistent with the move to specialization in the profession as a whole. Specialization unquestionably has its benefits. The job of ethics advising and professional responsibility decision-making has, through professionalization, been situated somewhere, with a clear set of responsible persons. Nonetheless, these trends are a concern because ethical responsibility cannot be fully delegated. Lawyers can and should turn to ethics specialists to assist with complex issues, but the radar required to spot those issues and the awareness that consultation is necessary are nondelegable skills. It is certainly possible to view ethics as a complex legal discipline, getting--as most disciplines are--more complicated with the passage of time. Mastering vast networks of regulation, a burgeoning body of precedent, and voluminous scholarly commentary makes expertise in any area demanding and difficult. In this, ethics is surely not unique. Yet, all lawyers have a commitment to follow their professional responsibility obligations. They cannot decline expertise in this area in the same way they can pass on other substantive issues--tax, or ERISA, or environmental law--which they know they lack the expertise, and perhaps the interest, to handle competently. (2) Telling pressured and overwhelmed lawyers that this area is, in effect, way too complex for them to master may cause them to lack ownership of ethics principles.

This Article sets out the factors that contribute to the increased professionalization of professional responsibility in large law firms. It argues that we should rethink the ever-growing, elaborate and exegetical texture of ethics rules, and that a version of the professional responsibility rules, more accessible to the ordinary, non-expert practitioner, would be a valuable contribution.

I start with three premises: that new lawyers find themselves in an environment where independent performance at top speed is at a premium, that specialization is a paramount value, and that the rules of legal ethics are getting more and more complex and elaborate. This combination makes it extremely difficult for new lawyers to think of ethics issues as matters for which they can take responsibility. Instead, they become a matter for the "professionals"--ethics experts within the law firms. While the development of an institutional infrastructure of expertise is undoubtedly beneficial, we need to consider carefully how to maintain the connection of new lawyers to their own ethical responsibilities.

In her paper, Professor Elizabeth Chambliss accuses me of the "nirvana fallacy"--of rejecting approaches to ethics decision-making in favor of a failed and nostalgic ideal of collegial decision-making and individual accountability. (3) I share Professor Chambliss's skepticism about false nostalgia for the nonexistent golden era of lawyering, and have articulated similar critiques elsewhere. (4) More significantly, I think Professor Chambliss posits a false dichotomy between bureaucratized systems and individual accountability. Contrary to her assertions, I do not condemn the creation of ethics infrastructure--far from it. Yet ethics infrastructure functions--and its proponents recognize that it functions--only when it harmonizes effectively with individual ethics awareness and accountability. In view of Professor Chambliss's recognition that even firms with some ethics infrastructure provide little guidance to their lawyers on a range of issues, including proper billing practices, investments in clients, and control of client funds, the need for individual accountability even in a firm with ethics infrastructure remains evident.

Ultimately, Professor Chambliss agrees. She suggests that the true value of compliance specialists is not that, in some "legalistic" fashion, they will increase fear of enforcement and therefore compliance. Instead, using an "institutional" model of regulation, the existence of compliance specialists will alter the norms of firm culture, enabling specialists to play a role "in educating and socializing firm members." (5) The goal of educating and socializing firm members is, ultimately, an increase in individual accountability. My suggestion in this paper is only that the creation of ethics specialists in an increasingly complex and highly regulated ethics environment may pose some challenges to the continuing goal of individual ethics awareness and accountability. On the need to maintain such awareness and accountability, I would be surprised if we disagree.

1. THE NEED FOR SPEED

   The first development that affects this situation is the newly developed expectation that lawyers are constantly accessible and available around the clock, and that they will speedily respond to any inquiry from a superior or client. The most ubiquitous comment from lawyers participating in the conference concerned these expectations of constant access and speedy response.

   This development is in part the product of new technologies. Cell phones, Blackberries, and wireless communications have created "a world of invisibility and speed," (6) where "new habits of thought ... emerge from the compression of time and space and the expectation that everyone should be available all the time." (7) The existence of these technologies creates the potential for new expectations: that lawyers will be instantly accessible and responsive to clients or superiors on an around-the-clock basis. (8)

   This expectation is not simply the product of technology, but a reflection of an increasingly competitive environment for business development. (9) While technology facilitates continuous access and availability, the need to provide superior client service drives the notion that such access and availability is a critical component of doing the job. (10) A firm not providing real-time responsive service to its clients around the clock runs the risk of losing those clients to a firm that will; (11) the ability to respond quickly, and to be accessible on demand, thus becomes an obligation to do so. (12)

   So one factor we have to take into account is that young lawyers are expected to move fast, and to be accessible and responsive around the clock. This means two things for those new lawyers. First, the need to show that you can and will produce an answer on a short timeline reduces the time you have to contemplate a complex issue. Responsiveness is assessed on a different timetable, one which might not allow the kind of mature reflection most of us would view as important in the development of an ethical sensibility. (13) Second, the need to respond quickly adds to the pressure to specialize.

2. THE PRESSURE TO SPECIALIZE

   Even new lawyers are encouraged, early on, to become experts in something. Professional development literature urges specialization as a formula for success. (14) It is not enough, as a young lawyer, to work hard at the assignments you are given and develop the skills of a generalist. (15) Specialization is touted as a way to develop expertise, stand out from the crowd, and do an effective job of marketing yourself. (16) Specialization is urged by insurers as well, (17) and this trend towards specialization is reflected across the profession. (18) The pressure to move quickly only increases this tendency, since specialized knowledge facilitates speedy response. The need to specialize has extended to the area of professional responsibility. Many firms are creating a culture of expertise in ethics, (19) developing a structure of internal "ethics compliance specialists." (20) The creation of varied patterns of "ethical infrastructure" (21) in law firms is good news. While these structures involve a range of titles, responsibilities, and authority, (22) they reflect that firms are recognizing the need to focus on and attend to ethics issues. (23) They also create an internal resource and, one hopes, an internal culture of ethics consultation and reflection. It is a significant positive development that there are particular individuals in the firms who view these issues as their responsibility. Firms which in the past lacked a clear structure for internal ethics advice, direction and expertise reflected both a lack of concern and a lack of competence which created the potential for a wholly inadequate response to ethics concerns. (24)

   The motivation behind this development is multifaceted. In part, it reflects concerns about liability; appropriate infrastructure assures insurers that a compliance system is in place. (25)

   It may reflect a desire to provide for a separate "ethics counsel" for confidentiality or privilege purposes, to create a climate of awareness, to play a preventive role in avoiding ethics problems, (26) or to seek to build trust so that lawyers in the firm will be more likely to approach the designated person for ethics advice. It also reflects the increasing complexity of legal ethics as a substantive discipline, (27) whose disregard has a significant downside potential for the firms. (28)

   But the internal focus on ethics specialists also suggests that ethics is just another area of specialization, one in which someone else is developing expertise so you don't have to. (29) This runs the risk of shuttling the consideration of ethics to the designated individuals, taking ethical issues out of mainstream discourse. (30) Moreover, except in a specialized...