Alternative Perspectives on Lawyers and Legal Ethics

Reimagining the Profession

Reid Mortensen, Francesca Bartlett, Kieran Tranter

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136937408
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The study of legal ethics and the legal profession has emerged as a distinct and important field of scholarship over the last 30 years. However, as in other disciplines, academic recognition can in turn entrench static and powerful meta-theories and narratives about professional ethos and practise, this collection seeks to disrupt this homogenising impulse and to present alternative voices by bringing together a range of international scholars writing about legal ethics and the legal profession.

The book features significant and timely contributions which take contemporary and non-mainstream perspectives on the current and future shape of the legal profession. The essays not only describe the rapidly changing profession but canvas different approaches to scholarship on the legal profession. The collection seeks to explore a diverse and contextualised profession from a number of angles. Authors examine how the public sees lawyers and how lawyers see their own profession; how we practise law and how this practice shapes lawyers; how such cultural and professional practice intersects with institutional structures of the law to create certain legal outcomes; and how we regulate the legal profession to modify or institute ethical practice.

The volume provides insights into legal culture and ethics from the perspective of authors from Australia, Canada, England, the United States, New Zealand and Kenya – a diversity of national perspectives that give valuable insights into developments in the profession at the local and global level. It also illustrates diversity within the profession by tracing differing professional career trajectories based on raced or gendered barriers, alternative ethical strategies and the impact of organisational cultures in which lawyers practice.

1
Introduction

Francesca Bartlett, Reid Mortensen and Kieran Tranter

The contributions to this volume are both united by a common, underlying perspective on legal ethics and the legal profession and, somewhat paradoxically, different in the alternative approaches they have taken when adopting it. This perspective is that the established modus through which legal ethics and its professional context have been comprehended is limited and limiting. This reveals two strains that tie the contributors together. The first is the identification of a familiar pattern – of an orthodoxy and its critical reaction. The second concerns the location of this critique in method.

Legal ethics, as a discipline, is a twinned project.¹ One branch of it concerns the law of lawyering – that is, the positive law that formally governs legal practice. As a scholarly enterprise concerned with the law of lawyering, legal ethics has regularly been criticized as methodologically conservative.² The instruments through which the law of lawyering has traditionally been examined are predominantly taken from the positivist toolbox. The questions have been concerned, inter alia, with what law exists, its clarity and its jurisdictional diversity. The evaluative concerns tended to remain modest, and in general the focus has been on how reform to the law has impacted on existing legal practice. However, parallel to this doctrinal emphasis has been a normative task of constructing moral arguments about the role of the lawyer, particularly concerning the ethics and politics of role morality. For this branch of legal ethics, a different set of intellectual resources has been evident. For the normative task, positivist description has been displaced by moral philosophy. The scholarship that occupies this branch of legal ethics is characterized by an ethical lexicon, reasoned argument and ‘proofs’ via abstract hypotheticals.

We reaffirm, and have reaffirmed,³ the importance and efficacy of these established methods of legal ethics. The law of lawyering needs to be known according to traditional measures. Old laws need to be assessed in new contexts, and new laws need to be assessed in old ones. Further, the clarity of moral dissection has been – and continues to be – important to shock a powerful, and often complacent, profession into self-reflection concerning its responsibility to individuals and the body politic. At least one of the contributors to this volume – Elizabeth Gachenga (Chapter 7) – implicitly presents a strong view of the importance of philosophy for resolving questions of legal ethics that other approaches have not resolved. However, as David Luban notes in his reflection on Max Weber’s ‘Science as vocation’,⁴ in the context of legal scholarship, ‘legal scholars … are comfortable’ and a deep, dedicated commitment to knowledge ‘does not come naturally to people who are comfortable’.⁵ There is much of value in scholarship that draws upon the established methods of legal ethics; both the law and lawyering have been, and can be, changed through such scholarship. However, at one level it is a comfortable space. Its perimeters and methods are known and well practised. As Luban’s remembering of Weber reminds us, the search for knowledge, for ideas, requires the seeker to go beyond the comfortable: ‘a kind of astringent designed to extinguish the ego in the name of knowledge’.⁶ For Weber, being a scholar was a vocation to a particularly modern form of asceticism.

The body of research that has grown around understanding the legal professional is not a comfortable space, at least for lawyers. For common lawyers, the archaic self-representation lay within myths of community, unwritten law and artificial reason.⁷ Lawyering was a calling to a pre-modern asceticism that mingled symbol, place and law, and now only lies as a faint shadow in some of the architecture and language of legal institutions.⁸ As Weber has so keenly observed, in modernity, law moved from the charismatic to the rational, from the informal to the formal.⁹ With modernity’s emptying of the symbolic realm, lawyers pieced together an impoverished self-representation; to be a lawyer was to be a technician for the law machine.¹⁰ In many respects, the absence of a truly lived self-representation has opened the study of the legal profession up to another of Weber’s legacies: the social sciences.¹¹ As a consequence, the practice of law has come to be understood not just as a technical process of rule application and role performance, but as a complex and contestable social, cultural and economic activity, concerned with power, status, gender, language and exchange.¹² Whereas legal ethics expresses a stable bifurcation – which on the methodological level breaks down to positivism concerning the law of lawyering and moral philosophy concerning the normative task – studies into the legal profession have become subject to the full gamut of contemporary social scientific research methods.

However, the impact on legal ethics of both such findings and the methods of this scholarship has been minimal.¹³ Legal ethics remains a field mainly concerned with rule application and role performance, even in the face of ever-growing research that has endeavoured to make sense of lawyering as a social, political and economic activity. This leads to the rationale for this volume: to bring together alternative ways of thinking about legal ethics and the legal profession; about who comprises it, where it operates and how.

For this reason, it is tempting to locate this volume under the label ‘interdisciplinarity’ or ‘interdisciplinary legal scholarship’. Indeed, in a recent article, Carrie Menkel-Meadow has traced the increasing embrace of ‘context’ by legal theory through the twentieth century, and explored the impact this has had on legal education.¹⁴ Her stated purpose was to ‘realize the potential of true interdisciplinary study’.¹⁵ There is a similarity between Menkel-Meadow’s appreciation of the insertion of context into the theory of law by the realists, law and economics, law and society, critical legal studies, feminist legal studies, virtue ethics, ethical relativism and law and cultural studies, and the scope of this volume. Each contribution in this volume can be seen as drawing foundational concepts and methods from a discipline beyond the legal ethics orthodoxy; there are chapters drawing on law and culture, feminism and empirical legal studies, as well as chapters that challenge the orthodox conception behind the role morality of a lawyer in private practice. We remain agnostic when it comes to the term ‘interdisciplinary’, with its overtures of ‘post-modernity’¹⁶ and ‘crumbling of disciplinary fences’.¹⁷ Instead, each of the chapters is located in a recognized discipline. The unity across the contributions is not a performative commitment to an abstract and possibly empty ideal of interdisciplinarity, but a more basic manifestation of the type of scholarship about which Luban was writing. The contributions are not comfortable. Each, in its own way, stretches understanding about legal ethics and the legal profession. Each challenges some of the orthodox conceptions that ground legal ethics scholarship. As such, they are not comfortable reading – for lawyers or legal ethicists. For example, Michelle Sharpe – who, in Chapter 12, discusses an empirical study that reports on the predominance of mental ill-health in the legal profession – directly challenges a foundational representation common to legal ethics and in the ego-ideal of most lawyers: that to be a lawyer is to be a rational decider confidently engaging with the world. Another example is Paula Baron (Chapter 4) who, writing with reference to psychoanalytical theory, questions the desire for the father in the idealization of To Kill a Mocking Bird’s Atticus Finch, and offers a subversive alternative in Boston Legal’s Denny Crane.

An alternative perspective, and alternative perspectives, on legal ethics and the legal profession mean not being comfortable. In going beyond the orthodox methods of legal ethics, the contributors to this volume are continuing in a spirit of intellectual endeavour championed by Weber. They seek and report ways to know beyond the pragmatics of mainstream scholarship. The primal registry is that of knowledge. But in seeking knowledge they do legal ethics – as a practical task of thinking about, regulating and challenging lawyering – a significant service. In making legal ethics uncomfortable, they challenge it to know and do better.

1.1 Challenging legal ethics

In Chapter 2, Judith Maute undertakes a detailed comparative examination of the changes to the regulation of the legal profession. She notes that the reforms in the eastern states of Australia that led to the establishment of government agencies charged with the regulation of lawyer conduct effectively displaced professional self-regulation and were mirrored by recent reforms in the United Kingdom. This chapter presents two challenges to legal ethics. The first is her contextual approach. She locates the change within social pressures, in Australia and the United Kingdom, to consider lawyering as a service to customers, and as such as something that should be subject to similar consumer protection regulations as other service industries. In this chapter, the law of lawyering is considered in its political and cultural context, and Maute particularly emphasizes how cultural factors in Australia and the UK influenced the reforms. Her second challenge is directly to the profession in the United States. The end point of the Australian and UK reforms has been the establishment of a co-regulatory regime between the newly established ‘Commissioner’ and the organized profession, but with the profession playing a minor supporting role. It also has led in Australia to a movement towards a unified national regime for regulation. This is a direct challenge to the ‘balkanized’ United States: a challenge to state Bars to reform discipline processes and become more responsive to ‘consumer concerns’ – or else to risk losing self-regulation.

In Chapter 3, Vivien Holmes and Simon Rice argue for an alternative source of values to inform legal ethics. Their challenge is directly to the traditional concepts of moral philosophy that have informed the normative task in legal ethics. Holmes and Rice are not comfortable with the way in which lawyering is conceived, nor with its political impact. Beginning with the pre-eminent global challenges of the present – the global financial crisis and global warming – they argue that lawyers acting as corporate advisers or facilitating trans(even pan)-jurisdictional transactions play an essential role in the activities responsible for these crises. However, they note that the ethical expectations of, and obligations on, these lawyers remain in the realm of role morality – a theory grounded on a traditional vision of the lawyer in private practice, working in a specific jurisdiction and representing human clients. This is not the reality for corporate legal advisers, nor trans-jurisdictional transaction lawyers. Drawing upon calls for contextual ethics that have been heard in legal ethics, Holmes and Rice suggest that lawyers whose work directly relates to global challenges cannot rely upon claims of neutral partisanship to absolve them of moral responsibility. Instead, the context of interconnectedness, and the possibility that corporate actions and trans-jurisdictional transactions can have impacts of global significance, mean a responsibility for consideration, for self-reflection and for self-conscious action.

In Chapter 4, as mentioned above, Paula Baron revisits the law and culture literature that laments an increasingly negative depiction of lawyers in popular imagery, marked especially by the contrast of Atticus Finch in To Kill a Mockingbird and Denny Crane in Boston Legal. For many, this shows how, in the popular imagination, the lawyer has fallen from grace. It has also led some to call for the profession to wage something of a public relations campaign to counter the negative stereotyping. Baron, however, suggests that there is greater significance in the similarities that Finch and Crane share, and that these are drawn out by psychoanalytical theory. These similarities are manifest in the symbolic role of father: the father who symbolically ‘institutes law in the social sense [and] who institutes law in the individual through the exercise of the so-called “paternal function”’. In many respects, lawyers represent that ‘paternal function’ for their clients, bringing together both our ‘love’ of the protection that law and fathers represent and our ‘fear’ of their power. Finch and Crane exemplify both, but Crane also represents the loss of paternal authority and the loss also of the symbolic function it serves. So, while Finch symbolizes the disciplined restraint of that authority – and even that is challenged – Denny Crane ‘is obscene enjoyment’, the joisseur who represents the undermining of symbolic authority. This is disturbing reading for men and women – not only for what is says about lawyers but, we suggest, for its implications regarding law itself. It has important unresolved implications for women in the legal profession. Baron recalls the continuing symbolic and unconscious confusion of the paternal function and the law, ...

Table of contents

• Routledge Research in Legal Ethics
• Contents
• Preface
• Contributors
• 1 Introduction
• 2 Global continental shifts to a new governance paradigm in lawyer regulation and consumer protection: riding the wave
• 3 Our common future: the imperative for contextual ethics in a connected world
• 4 The emperor’s new clothes: from Atticus Finch to Denny Crane
• 5 Doing good by stealth: professional ethics and moral choices in The Verdict and Regarding Henry
• 6 Solicitors as imagined masculine, family mediators as fictive feminine and the hybridization of divorce solicitors
• 7 Stein’s ethic of care: an alternative perspective to reflections on women lawyering
• 8 Gender, ethics and the discretion not to prosecute in the ‘interests of justice’ under the Rome Statute for the International Criminal Court
• 9 Exploring the potential of contextual ethics in mediation
• 10 Nefarious conduct and the ‘fit and proper person’ test
• 11 Legal ethics and regulatory legitimacy: regulating lawyers for personal misconduct
• 12 The problem of mental ill-health in the profession and a suggested solution
• Index