Asking the right questions

Temple Law Review

Volumn 72, Issue 4, 1999, Pages 839-855

  Luban, David ^a  

^a GEORGETOWN UNIVERSITY LAW CENTER   (United States)

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EID: 0347638436     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (60)

1. This paper has a secret co-author. Several weeks before I wrote it, I heard Robert Gordon complain that the debate over multidisciplinary law practice ("MDP") was completely ignoring the question of what effect MDP would have on the lawyer's role as a guardian of public norms. He expressed considerable bemusement about the neglect of this question in published discussions of MDP. That sounded right to me, and the present paper is my effort to raise in public the question that Gordon raised in conversation. Of course Gordon bears no responsibility for the way I have elaborated his question.
2. It is already the case that two of the four biggest "law firms" in the world are accounting firms. ABA COMMISSION ON MULTIDISCIPINARY PRACTICE AND RELATED TRENDS AFFECTING THE PROFESSION ¶ 4 [hereinafter ABA REPORT].
3. John E. Morris, King Arthur's March on Europe, AM. LAW. 48, 53 (June 1998).
4. ABA REPORT, supra note 2, ¶ 2.
5. RICHARD A. POSNER, OVERCOMING LAW 92-93 (1995).
6. Id. at 93.
7. This view was elaborated by the sociologist Talcott Parsons, but it may already be found in Tocqueville, and has been defended by such notable jurists as Louis Brandeis. See generally TALCOTT PARSONS, A Sociologist Looks at the Legal Profession, in ESSAYS IN SOCIOLOGICAL THEORY 370 (1964); TALCOTT PARSONS, The Professions and Social Structure, in ESSAYS IN SOCIOLOGICAL THEORY 34 (1964); 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 272-80 (Henry Reeve trans., Phillips Bradley ed., Anchor Books 1963) (1835);
8. This view was elaborated by the sociologist Talcott Parsons, but it may already be found in Tocqueville, and has been defended by such notable jurists as Louis Brandeis. See generally TALCOTT PARSONS, A Sociologist Looks at the Legal Profession, in ESSAYS IN SOCIOLOGICAL THEORY 370 (1964); TALCOTT PARSONS, The Professions and Social Structure, in ESSAYS IN SOCIOLOGICAL THEORY 34 (1964); 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 272-80 (Henry Reeve trans., Phillips Bradley ed., Anchor Books 1963) (1835);
9. This view was elaborated by the sociologist Talcott Parsons, but it may already be found in Tocqueville, and has been defended by such notable jurists as Louis Brandeis. See generally TALCOTT PARSONS, A Sociologist Looks at the Legal Profession, in ESSAYS IN SOCIOLOGICAL THEORY 370 (1964); TALCOTT PARSONS, The Professions and Social Structure, in ESSAYS IN SOCIOLOGICAL THEORY 34 (1964); 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 272-80 (Henry Reeve trans., Phillips Bradley ed., Anchor Books 1963) (1835);
10. LOUIS D. BRANDEIS, The Opportunity in the Law, in BUSINESS: A PROFESSION 329 (1925).
11. I discuss this tradition in David Luban, The Noblesse Oblige Tradition in the Practice of Law, 41 VAND. L. REV. 717 (1988).
12. ABA MODEL RULES OF PROFESSIONAL CONDUCT Preamble para. 1 (1998).
13. See id. at Rule 33(a)(4) (requiring lawyer to disclose to tribunal material facts to avoid assisting in crime or fraud); id. at Rule 1.6 (forbidding lawyer from revealing certain information related to client representation).
14. Id. at Rule 1.2(d). See also id. at Rule 1.16(a)(1) (requiring lawyer to withdraw if representation will result in violation of law); id. at Rule 1.16(b)(1) (permitting lawyer to withdraw if client persists in course of action that lawyer believes to be criminal or fraudulent). My interpretation of the rule as an expression of the Parsons-Brandeis ideal may not be valid if we consider only criminal schemes, in which the requirement not to counsel or assist is nothing more than the demand not to be an accomplice or enter into a criminal conspiracy - hardly a requirement that applies only to lawyers! The interpretation is more plausible when we turn from criminal schemes to non-criminal frauds.
15. The fundamental American treatment of this ideal is Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1 (1988).
16. The relevant Model Rules are 1.8(f) and 5.4, both of which forbid lawyers from allowing third parties paying their fees to interfere with their judgment on behalf of clients. ABA MODEL RULES, supra note 8, at Rules 1.8(f), 5.4.
17. See, e.g., DIETRICH RUESCHEMEYER, LAWYERS AND THEIR SOCIETY: A COMPARATIVE STUDY OF THE LEGAL PROFESSION IN GERMANY AND IN THE UNITED STATES 174-75 (1973) (discussing legal profession in Germany in the nineteenth century).
18. Interestingly, this meaning is explicitly acknowledged and centrally important in Germany. The Federal Lawyers' Act (Bundesrechtsanwaltsordnung) and the code of legal ethics (the so-called "Richtlinien" or Grundsätze des anwaltlichen Standesrechts) both begin with the fundamental principle, "a lawyer is an independent organ of the administration of justice" (Rechtspflege). BRAO § 1; RICTHLRA, Vorspruch § 1. The leading commentaries all agree that this means independence from the client as well as the state. For discussion and references, see David Luban, The Sources of Legal Ethics: A German-American Comparison of Lawyers' Professional Duties, 48 RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 245, 266-67 (1984).
19. See ABA MODEL RULES, supra note 8, at Rule 1.2(b) (stating that client representation does not amount to endorsement of client's views).
20. Id. at Rule 3.4(e) (prohibiting attorneys from stating their own views during trial).
21. "In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation." Id. at Rule 2.1.
22. Id. at Rule 1.6 cmt 3.
23. OLIVER WENDELL HOLMES, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 171 (1920).
24. Id.
25. The distinction between citizen and consumer has been explored by Mark Sagoff in a series of elegant articles in the 1980s. Many of these were eventually incorporated into his book, The Economy of the Earth. See generally MARK SAGOFF, THE ECONOMY OF THE EARTH: PHILOSOPHY, LAW, AND THE ENVIRONMENT (1988).
26. JEAN-JACQUES ROUSSEAU, EMILE, OR ON EDUCATION 40 (Allan Bloom trans., Basic Books ed. 1979). Rousseau wrote: The Lacedaemonian Pedaretus runs for the council of three hundred. He is defeated. He goes home delighted that there were three hundred men worthier than he to be found in Sparta. I take this display to be sincere, and there is reason to believe that it was. This is the citizen. A Spartan woman had five sons in the army and was awaiting news of the battle. A Helot arrives; trembling, she asks him for news. "Your five sons were killed." "Base slave, did I ask you that?" "We won the victory." The mother runs to the temple and gives thanks to the gods. This is the female citizen. Id. (footnotes omitted).
27. Gordon, supra note 11, at 13.
28. There is a sixth rejoinder as well, perhaps the least familiar but in some ways the most interesting. That is the point, developed in numerous essays and books by Lon Fuller, that the sharp distinction between citizen and consumer - state and civil society, in the terminology of nineteenth-century political economy - is excessively statist and, in the final analysis, misunderstands the pluralist nature of law. In Fuller's eyes, law arises whenever human beings subject their own conduct to the governance of rules, whether or not these rules are made by the state; thus, the law in a contract is just as much "contract law" as the law governing its formation. I believe that it is possible to recast the distinction between public norms and private interests even in a legal pluralist framework such as Fuller's, but that is an excursion for another paper. See generally LON L. FULLER, THE PRINCIPLES OF SOCIAL ORDER (Kenneth I. Winston ed., 1981).
29. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 19.3 (4th ed. 1992). As Jonathan R. Macey puts it, "[i]nterest group theory treats statutes as commodities that are purchased by particular interest groups or coalitions of interest groups that outbid and outmaneuver competing interest groups." Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 227 (1986). See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991).
30. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 19.3 (4th ed. 1992). As Jonathan R. Macey puts it, "[i]nterest group theory treats statutes as commodities that are purchased by particular interest groups or coalitions of interest groups that outbid and outmaneuver competing interest groups." Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 227 (1986). See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991).
31. RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW § 19.3 (4th ed. 1992). As Jonathan R. Macey puts it, "[i]nterest group theory treats statutes as commodities that are purchased by particular interest groups or coalitions of interest groups that outbid and outmaneuver competing interest groups." Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223, 227 (1986). See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION (1991).
32. On this issue, the by-now-standard work is that of Donald P. Green and Ian Shapiro. They carefully review hundreds of political science studies in the public-choice tradition and find them by and large either unfalsifiable or falsified. See generally DONALD P. GREEN & IAN SHAPIRO, PATHOLOGIES OF RATIONAL CHOICE THEORY: A CRITIQUE OF APPLICATIONS IN POLITICAL SCIENCE (1994).
33. Gordon, supra note 11, at 26-27.
34. See generally WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (1982) (examining theory of democratic process and social decision making); KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) (deriving a paradox of social choice); Richard D. McKelvey, General Conditions for Global Intransitivities in Formal Voting Models, 47 ECONOMETRICA 1085 (1979) (same); Norman Schofield, Instability of Simple Dynamic Games, 45 REV. ECON. STUD. 575 (1978) (same).
35. See generally WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (1982) (examining theory of democratic process and social decision making); KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) (deriving a paradox of social choice); Richard D. McKelvey, General Conditions for Global Intransitivities in Formal Voting Models, 47 ECONOMETRICA 1085 (1979) (same); Norman Schofield, Instability of Simple Dynamic Games, 45 REV. ECON. STUD. 575 (1978) (same).
36. See generally WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (1982) (examining theory of democratic process and social decision making); KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) (deriving a paradox of social choice); Richard D. McKelvey, General Conditions for Global Intransitivities in Formal Voting Models, 47 ECONOMETRICA 1085 (1979) (same); Norman Schofield, Instability of Simple Dynamic Games, 45 REV. ECON. STUD. 575 (1978) (same).
37. See generally WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE (1982) (examining theory of democratic process and social decision making); KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) (deriving a paradox of social choice); Richard D. McKelvey, General Conditions for Global Intransitivities in Formal Voting Models, 47 ECONOMETRICA 1085 (1979) (same); Norman Schofield, Instability of Simple Dynamic Games, 45 REV. ECON. STUD. 575 (1978) (same).
38. See David Luban, Social Choice Theory as Jurisprudence, 69 S. CAL. L REV. 521, 522 (1996) (discussing Arrow, McKelvey, and Schofield theorems); see also id. at 567-71 (discussing McKelvey and Schofield theorems); id. at 574 (discussing Arrow's assumption of pairwise voting); id. at 522, 556-58, 580-86 (discussing Arrow's assumption that voters may cast ballots for choices that other voters have excluded by right and demonstrating that without this assumption Arrow's theorem fails).
39. Thomas L. Shatter, Should a Christian Lawyer Sign Up for Simon's Practice of Justice?, 51 STAN. L. REV. 903, 911-13 (1999).
40. Id. at 912.
41. 3Z Id. at 912-13.
42. Robin West, The Zealous Advocacy of Justice in a Less than Ideal Legal World, 51 STAN. L. REV. 973, 984 (1999) (emphasis in original).
43. Charles Fried, The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060, 1080 (1976) (footnotes omitted).
44. Id. (emphasis added).
45. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY ch. 3 (1988) (elaborating on the circumstances in which we do or do not have an obligation to acknowledge the law's moral authority); see generally David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
46. See DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY ch. 3 (1988) (elaborating on the circumstances in which we do or do not have an obligation to acknowledge the law's moral authority); see generally David Luban, Conscientious Lawyers for Conscientious Lawbreakers, 52 U. PITT. L. REV. 793 (1991).
47. See David Luban, Faculty Pro Bono and the Question of Identity, 49 J. LEGAL EDUC. 58, 63-66 (1999) (defending this view).
48. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 7-19 (1982)
49. See David Luban, Twenty Theses on Adversarial Ethics, in BEYOND THE ADVERSARIAL SYSTEM 134 (Helen Stacy & Michael Lavarch eds., 1999); LUBAN, LAWYERS AND JUSTICE, supra note 36, at chs. 4-5 (considering ethical obligations of attorneys within adversarial system); see also David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83-123 (David Luban ed., 1983) (discussing the conflict inherent in lawyer's ethical obligations in the adversarial system).
50. See David Luban, Twenty Theses on Adversarial Ethics, in BEYOND THE ADVERSARIAL SYSTEM 134 (Helen Stacy & Michael Lavarch eds., 1999); LUBAN, LAWYERS AND JUSTICE, supra note 36, at chs. 4-5 (considering ethical obligations of attorneys within adversarial system); see also David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83-123 (David Luban ed., 1983) (discussing the conflict inherent in lawyer's ethical obligations in the adversarial system).
51. See David Luban, Twenty Theses on Adversarial Ethics, in BEYOND THE ADVERSARIAL SYSTEM 134 (Helen Stacy & Michael Lavarch eds., 1999); LUBAN, LAWYERS AND JUSTICE, supra note 36, at chs. 4-5 (considering ethical obligations of attorneys within adversarial system); see also David Luban, The Adversary System Excuse, in THE GOOD LAWYER: LAWYERS' ROLES AND LAWYERS' ETHICS 83-123 (David Luban ed., 1983) (discussing the conflict inherent in lawyer's ethical obligations in the adversarial system).
52. I should add that in my view the claim of moral non-accountability is often unjustified. See generally Luban, Twenty Theses on Adversarial Ethics, supra note 39; Luban, The Adversary System Excuse, supra note 39 (discussing lawyers' ethical obligations in adversary context); LUBAN, LAWYERS AND JUSTICE, supra note 36, at chs. 6-8 (discussing lawyers' role and moral obligations).
53. I should add that in my view the claim of moral non-accountability is often unjustified. See generally Luban, Twenty Theses on Adversarial Ethics, supra note 39; Luban, The Adversary System Excuse, supra note 39 (discussing lawyers' ethical obligations in adversary context); LUBAN, LAWYERS AND JUSTICE, supra note 36, at chs. 6-8 (discussing lawyers' role and moral obligations).
54. I should add that in my view the claim of moral non-accountability is often unjustified. See generally Luban, Twenty Theses on Adversarial Ethics, supra note 39; Luban, The Adversary System Excuse, supra note 39 (discussing lawyers' ethical obligations in adversary context); LUBAN, LAWYERS AND JUSTICE, supra note 36, at chs. 6-8 (discussing lawyers' role and moral obligations).
55. ARTHUR ISAK APPLBAUM, ETHICS FOR ADVERSARIES: THE MORALITY OF ROLES IN PUBLIC AND PROFESSIONAL LIFE 48-51 (1999) (introducing the "schmoctor" terminology).
56. RICHTLRA § 40.
57. In German criminal trials, the defendant does not testify under oath, to avoid creating a perjury trap for him. Here, too, German rules seem much more realistic in their sense of how much self-immolation it is reasonable to expect of ordinary human beings.
58. Too often, this is true at the low end of legal services as well. State bars usually invoke the prohibition to drive cut-rate competitors out of business. A typical case is Florida Bar v. Brumbaugh, where a proprietor of a typing service was found guilty of unauthorized practice, after she instructed customers about how to fill out do-it-yourself legal forms. 355 So. 2d 1186 (Fla. 1978). See Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1, 44-97 (1981) (discussing constitutional implications of unauthorized practice prohibitions).
59. Robert E. Rosen, The Inside Counsel Movement, Professional Judgment and Organizational Representation, 64 IND. L.J. 479, 519-36 (1989) (discussing claims of Inside Counsel Movement).
60. Id. at 553 (arguing that whatever virtue inside counsel possess lies in their political power, not their independence).