From park place to community chest: Rethinking lawyers' monopoly

Northwestern University Law Review

Volumn 101, Issue 3, 2007, Pages 1343-1370

  Lininger, Tom ^a  

^a UNIVERSITY OF OREGON   (United States)

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EID: 34548239286     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (184)

1. Ernest W. McFarland Professor of Law, Stanford Law School.
2. The term "pro bono" is shorthand for pro bono publico, a Latin phrase that means "for the public good." Variously defined by scholars and bar officials, the term generally refers to services provided for ree or at a reduced rate to low-income clients or organizations serving the public interest. E.g., MODEL RULES OF PROF'L CONDUCT R. 6.1 (2006),
3. reprinted in John S. Dzienkowski, PROFESSIONAL RESPONSIBILITY: STANDARDS, RULES & STATUTES 81-82 (2005-06 ed. West 2005) [hereinafter ABA MODEL RULES].
4. Anthony V. Alfieri, Teaching Ethics/Doing Justice, 73 FORDHAM L. REV. 851 (2004).
5. A list of Rhode's publications appears in her curriculum vitae. Deborah L. Rhode, Curriculum Vitae, http://www.law.stanford.edu/display/images/dynamic/ people_cv/rhode_cv.pdf (last visited on Sept. 15, 2006).
6. The Commission's work drew praise from President Bill Clinton. See http://www.aals.org/probono/ (last visited on Sept. 15, 2006).
7. For example, Rhode received the American Bar Foundation's W.M, Keck Foundation Award for Distinguished Scholarship on Legal Ethics and Professional Responsibility, and the American Bar Association's Pro Bono Publico Award for her work on expanding public service opportunities in law schools. At the American Bar Association's annual conference on June 8, 2006, Rhode received the ABA's prestigious Michal Franck Professional Responsibility Award. Professor Deborah Rhode named 2006 recipient of ABA Michael Franck Professional Responsibility Award, LAW@STANFORD, June 2006, available at http://www.law.stanford.edu/publications/law_at_stanford/ issues/200606.html.
8. Each year the AALS Section on Pro Bono and Public Service Opportunities confers the Deborah L. Rhode Award on "a full-time faculty member or Dean who has made an outstanding contribution to increasing pro bono and public service opportunities in law schools through scholarship, leadership, or service." The Deborah L. Rhode and Father Robert Drinian Awards, http://www.aals.org/probono/awards.html (last visited Sept. 15, 2006).
9. DEBORAH L. RHODE, PRO BONO IN PRINCIPLE AND IN PRACTICE: PUBLIC SERVICE AND THE PROFESSIONS (Stanford University Press 2005).
10. Deborah L. Rhode, Survey Indicates Little Emphasis on Public Service, NAT'L L.J., Sept. 12, 2005, at 18.
11. RHODE, supra note 8.
12. John Rawls proposed a conception of justice that he called "justice as fairness." To the extent that government action causes or exacerbates the unequal distribution of resources, that action can only be just if it would "improve the lot of those who are worst-off." JOHN RAWLS, A THEORY OF JUSTICE 303 (1971), While Rhode never refers explicitly to Rawlsian theory, such concerns pervade her book.
13. RHODE, supra note 8, at 36.
14. Other authors have criticized lawyers' monopoly to varying degrees. E.g., Margaret Rentz, Note, Laying Down the Law: Bringing Down the Legal Cartel in Real Estate Settlement Services and Beyond, 40 GA, L. REV, 293, 299-302 (2005) (arguing for the abolition or at least modification of UPL statutes to permit real estate conveyancing by laypersons);
15. Suzanne Schmitz, What's the Harm? Rethinking the Role of Domestic Violence Advocates and the Unauthorized Practice of Law, 10 WM. & MARY J. WOMEN & L. 295, 312-17 (2004) (urging more lenient rules allowing lay advocates to represent battered women in securing restraining orders);
16. Kathleen Justice, Note, There Goes the Monopoly: The California Proposal to Allow Nonlawyers to Practice Law, 44 VAND. L. REV. 179,180 (1991) ("Lawyers love to compete, but only with each other.").
17. See Erika Birg, Lawyers on the Road: The Unauthorized Practice of Law and the 2004 Presidential Election, 9 TEX. REV. L. & POL. 305, 318 (2005) ("Penalties for violating a state's unauthorized practice of law rules (which vary from state-to-state) are generally (but not always) criminal. The penalties range, for example, from civil injunction, civil contempt citation, and restitution to criminal fine and prison time."),
18. Jeremy Bentham, the founding father of utilitarian philosophy, argued that every proposal should be judged according to the extent to which it advances aggregate societal utility, with no preference for any particular constituency such as the poor. See Jeremy Bentham, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 11-13 (J.H. Burns & H.L.A. Hart eds., Clarendon Press 1996) (1823).
19. RHODE, supra note 8, at 28-29.
20. See id. at 37, 176-77, To be sure, some scholars, such as Harvard Law Professor David Shapiro, dispute the notion that lawyers have a monopoly.
21. David Shapiro, The Enigma of Lawyers ' Duty to Serve, 55 N.Y.U. L. REV. 735, 777 (1980) ("[T]o say . .. that lawyers have a monopoly, or even a powerful cartel, is to misrepresent the dynamics of the present day practice of law."). Charles Silver and Frank Cross have argued that lawyers do not enjoy a monopoly in the strict economic sense of the term, because lawyers cannot control entry into the profession or manipulate prices at their whim.
22. Charles Silver & Frank B. Cross, What's Not to Like About Being a Lawyer?, 109 YALE L.J. 1443, 1490-91 (2000).
23. On the other hand, scholars have noted that lawyers wield a collective power akin to monopoly in that they are able to erect barriers to market entry and enforce various anti-competitive rules. See e.g., Steven K. Berenson, A Cloak for the Bare: In Support of Allowing Prospective Malpractice Liability, 29 J. LEGAL PROF. 1, 21-22 (2004-05).
24. RHODE, supra note 8, at 73-99.
25. Id. at 100-24.
26. Id. at 125-53.
27. According to a database maintained by the American Bar Association and updated on April 5, 2006, twenty-seven state supreme courts have approved revisions to the states' ethical rules in response to the most recent recommendations by the ABA; review is underway in twenty-three other states. See Status of State Review of Professional Conduct Rules, http://www.abanet.org/ cpr/jclr/ethics_2000_status_chart.pdf (last visited Sept. 15, 2006).
28. ABA MODEL RULES, supra note 2, at 81-82.
29. See Alfieri, supra note 3, at 856-57.
30. RHODE, supra note 8, at 28-29.
31. Rhode developed this argument in her early articles. See generally Deborah L. Rhode, The Delivery of Legal Services by Non-Lawyers, 4 GEO. J. LEGAL ETHICS 209 (1990) (criticizing the self-interested nature of UPL statutes);
32. Deborah L. Rhode, Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REV. 1 (1981) (noting that the bar is generally more concerned than the public about enforcing the UPL statutes).
33. See George Leef, Lawyer Fees Too High? The Case for Repealing Unauthorized Practice of Law Statutes, 20 REGULATION 33 (1997), available at http://www.cato.org/pubs/regulation/reg20n1c.html.
34. See RHODE, supra note 8, at 36;
35. see Leef, supra note 25, at 34 (describing Arizona's experience with its UPL statute, which expired in 1986 and has not been reenacted).
36. See RHODE, supra note 8, at 28 (U.S. attorneys "have a much more extensive monopoly over the provision of most legal assistance than attorneys in other countries,").
37. Id. at 28-29.
38. Id. at 3.
39. Id.
40. Id. atl.
41. DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS 763 (3d ed. 2001).
42. Aric Press, Brother, Can You Spare 20 Hours?, 27 AM. LAW. 116 (2005).
43. RHODE, supra note 8, at 29.
44. Id. at 37;
45. see Steven Lubet & Cathryn Stewart, A "Public Assets " Theory of Lawyers ' Pro Bono Obligations, 145 U. PA. L. REV. 1245, 1262-84 (1997) (listing "ethics-based" public assets such as confidentiality and protection from conflicts of interest, as well "evidence-based" public assets such as privileges and the work product doctrine; all of these assets have been created by legislative pronouncements, so the public arguably deserves some compensation for the great value it has conferred upon lawyers).
46. " David Luban, the co-author of Rhode's textbook, LEGAL ETHICS, supra note 32, has written about the duty that attends lawyers' monopoly power.
47. "This is the difference between the lawyer and the grocer: the lawyer's lucrative monopoly would not exist without the community and its state; the monopoly and indeed the product it monopolizes is an artifact of the community." DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 286 (1988), quoted in RHODE, supra note 8, at 37.
48. RHODE, supra note 8, at 29-30.
49. Id. at 58-59.
50. Id. at 30-31;
51. see Esther Lardent, Pro Bono Work is Good for Business, NAT'L L.J., Feb. 19, 2001, at B24.
52. RHODE, supra note 8, at 31.
53. State bars generally regulate the ethics of lawyers, and the government has generally indulged this independence, except in limited instances. See Sarbanes-Oxley Act § 307, 15 U.S.C. § 7245 (2002).
54. RHODE, supra note 8, at 76 (quoting AMA, Council on Ethical and Judicial Affairs, Fundamental Elements of the Patient-Physician Relationship, 264 J. AM. MED. ASS'N 3133 (1990), available at AMA's Code of Ethics, http://www.ama-assn.org/ama/pub/ category/8313.html).
55. Id. at 37.
56. Id. at 97.
57. Id. at 83.
58. Id. at 88-91.
59. See, e.g., Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 335(b)(1) (2000) (requiring noncommercial set-aside as a condition for licensure of direct broadcasting satellite systems).
60. See RHODE, supra note 8, at 101. Resolution 78 of the Ministers of the Council of Europe provides that a "right to necessary legal aid" and a "right of access to justice and to a fair hearing" both constitute "an essential feature of any democratic society." Such rights extend to "the assistance of a person professionally qualified to practice law." Id. (quoting Legal Affairs, Council of Europe, Legal Aid and Advice: Resolution 78(8) adopted by the Committee of Ministers of the Council of Europe on 2 March 1978 and Explanatory Memorandum, 5-6);
61. see generally, Earl Johnson, Jr., Right to Counsel in ivil Cases: An International Perspective, 19 LOY. L.A. L. REV. 341, 351-55 (1985) (describing the approach taken by European nations, in contrast to the U.S. approach).
62. RHODE, supra note 8, at 102.
63. Id.
64. Id.
65. Id. at 110.
66. Id. at 118.
67. Id. at 117.
68. Professor Hazard has been cited more often than any other scholar in the field of legal ethics, according to a citation analysis by Professor Brian Leiter of the University of Texas School of Law. Brian Leiter, Top 10 Most Cited Faculty By Areas, 2002-2003, http://www.leiterrankings.com/faculty/ 2002faculty_impact_areas.shtml (last visited on April 17, 2006). Deborah Rhode ranks second in this list.
69. In praising Rhode's book, Professor Hazard commented that "[n]o other work combines thoroughness, currency, and such an empirical base." Geoffrey Hazard, Stanford University Press, http://www.sup.org/book.cgi?isbn= 0804751064 (follow the "Reviews" hyperlink) (last visited Sept. 18, 2006).
70. RHODE, supra note 8, at 125-6. These schools are Yale, the University of Pennsylvania, Fordham, Tulane, Northwestern, and the University of Chicago. The schools vary in their approaches to pro bono activities. Tulane and the University of Pennsylvania require pro bono work by students, and these schools invest substantial resources in their pro bono programs. Yale and Fordham strongly encourage pro bono work, and these schools have designated administrators to coordinate such work. Chicago and Northwestern lacked a formal pro bono program or a pro bono coordinator at the time of Rhode's survey. Id. at 125.
71. Both Chicago and Northwestern appear to have assigned administrators to coordinate pro bono work since the time of Rhode's survey. For information about various law schools' pro bono programs, see Law School Public Interest and Pro Bono Programs, http://www.abanet.org/legalservices/probono/lawschools/ (last visited on Sept 16, 2006).
72. Rhode surveyed recipients of the award from 1993 to 2000. In the case of law firm winners, she sent the questionnaire to pro bono coordinators or equivalent officials. RHODE, supra note 8, at 126.
73. Rhode focused on firms identified by the American Lawyer "as among the nation's 100 top law firms in terms of gross revenue during the period 1993 to 2000." These are the only firms for which pro bono data are readily available. Id.
74. Id. at 127.
75. Id.
76. The survey that Rhode sent to individual respondents appears in Appendix 1 of her book. The survey that she sent to legal employers appears in Appendix 2. There were fewer than seventy separately numbered questions, but several of these were compound questions seeking multiple answers. See id. at 181-88.
77. Id. at 151.
78. Id.
79. Id. at 152.
80. Id.
81. Id.
82. Id.
83. Id. at 162.
84. Id.
85. Rhode, supra note 9, at 18.
86. RHODE, supra note 8, at 159-60.
87. Id. at 172.
88. To be sure, Rhode sees some merit in a mandatory regime, but she appreciates the difficulties that a pro bono requirement might create, It would not be fair to treat Rhode as a "straw person" who favors the status quo and sees no value in compulsory pro bono. A more accurate characterization is that she sees both benefits and drawbacks in a mandatory approach to pro bono service. See id. at 26-54, 166-77.
89. Id. at 37-38. Some courts and commentators have taken a similar position. E.g., In re Emergency Delivery of Legal Services, 432 So. 2d 39, 41 (Fla. 1983) (disapproving of mandatory pro bono programs because "a person's voluntary service ... has to come from within the soul of that person");
90. Timothy Terell & James Wildman, Rethinking "Professionalism, " 41 EMORY L.J. 403, 430-31 (1992) (arguing that the best way to foster a spirit of professionalism is for the bar to facilitate pro bono efforts, but not to mandate them).
91. RHODE, supra note 8, at 37-38. Rhode finds some of these objections to be dubious or to lack moral weight. Id. at 38.
92. For more on the constitutionality of mandatory pro bono, see Debra Burke, et al., Mandatory Pro Bono: CuI Bono?, 25 STET. L. REV. 983, 999-1006 (1996);
93. John Scully, Mandatory Pro Bono: An Attack on the Constitution, 19 HOFSTRA L. REV. 1229, 1244-61 (1991).
94. RHODE, supra note 8, at 7-10.
95. Id. at 10-12. Rhode points out that many of these arguments are fallacious. Id.
96. Id. at 39.
97. Id. at 37, 172.
98. On the other hand, Rhode cautions that critics of mandatory pro bono should not overstate the logistical challenges, There is scant evidence from which to judge the effectiveness of mandatory regimes in jurisdictions that have experimented with them. Rhode recommends further research to study the viability of mandatory pro bono. She suggests that some of the hurdles identified by critics may be surmountable. Id. at 41-45.
99. Id. at 167-68.
100. Id. at 169.
101. Id. at 169-70.
102. Id. at 168.
103. Id. at 173.
104. Id. at 174.
105. Id.
106. Id. at 173.
107. Id. at 173-74.
108. Id. at 167, 169.
109. Alfieri, supra note 3, at 851.
110. For example, researchers could present a survey to a random sampling of attorneys, and this survey could begin with a question asking respondents to indicate how much pro bono service they provided in the past year. Then researchers could isolate the subset of respondents who did not do any pro bono work. A section of the survey could include questions such as, "If you indicated that you did not perform any pro bono service in the past year, which of the following considerations (if any) is the primary reason?" Respondents could choose among the listed alternatives or write in their own reasons. Rhode herself challenges this argument. She points out that there is no evidence of poor performance by lawyers whose pro bono service is compulsory. She also notes that the same problems could arise in the context of voluntary pro bono work. RHODE, supra note 8, at 42.
111. See ABA MODEL RULE 1.1 (requiring competent representation), ABA MODEL RULE 1.2 (requiring the lawyer to follow the client's directions as to the object of the representation), ABA MODEL RULE 1.3 (requiring diligence), ABA MODEL RULE 1.4 (requiring frequent communication with the client), ABA MODEL RULE 1.6 (requiring confidentiality of information relating to the representation), and ABA MODEL RULES 1.7-1.12 (requiring undivided loyalty to the client). ABA MODEL RULES, supra note 2, at 10-15, 18-41.
112. David Luban, Mandatory Pro Bono: A Workable (and Moral) Plan, 64 MICH. BAR J. 280, 283 (1985),
113. quoted in RHODE, supra note 8, at 38.
114. The U.S. Supreme Court has specifically affirmed the authority of a trial court to appoint counsel without compensation in a capital case, Powell v. Alabama, 287 U.S. 45, 73 (1932) ("[T]he duty of the trial court to appoint counsel under such circumstances is clear ... ; and its power to do so, even in the absence of a statute, can not be questioned. Attorneys are officers of the court, and are bound to render service when required by such an appointment."). See also United States v. Accetturo, 842 F.2d 1408, 1412 (3d Cir, 1988) ("[C]ourts have upheld their inherent power to appoint counsel, sometimes even over counsel's objection, to represent defendants in need of such representation,").
115. See Butler v. Perry, 240 U.S. 328, 332 (1915) (noting that the "term involuntary servitude was intended to cover those forms of compulsory labor akin to African slavery").
116. The current version of ABA MODEL RULE 1.2(b) makes this point clear: "A lawyer's representation of a client, including representation by appointment, does not constitute an endorsement of the client's political, economic, social or moral views or activities." See ABA MODEL RULES, supra note 2, at 11.
117. See generally McGowan v. Maryland, 366 U.S. 420,425 (1961) (upholding, against a Fourteenth Amendment challenge, a statute prohibiting the sale of certain items on Sundays);
118. Williams v. Lee Optical, Inc., 348 U.S. 483 (1955) (rejecting a Fourteenth Amendment challenge to a statute regulating activities of opticians);
119. Semler v. Or. State Bd. of Dental Exam'rs, 294 U.S. 608 (1935) (rejecting a Fourteenth Amendment challenge to an act regulating advertising by dentists).
120. For further elucidation n the constitutional issues, see Michael Millemann, Mandatory Pro Bono in Civil Cases: A Partial Answer to the Right Question, 49 MD. L, REV. 18, 65-71 (1990);
121. Steven Rosenfeld, Mandatory Pro Bono: Historical and Constitutional Perspectives, 2 CARDOZO L. REV. 255, 286-96 (1981).
122. In the 1990s, the California legislature sharply criticized the bar's programs, and the legislature used its power over dues collection to slash the bar's revenue. Nancy McCarthy, Bar Operations Pared to Barest Essentials: Services Shut Down As Staff Cut by 400+, CAL. BAR J., July 1998, at 1.
123. RHODE, supra note 8, at 7-10 (refuting constitutional arguments that mandatory pro bono is unconstitutional), 37-39 (challenging the claim that mandatory pro bono work would lose its moral meaning), 42 (refuting the claim that lawyers compelled to do pro bono service would not give competent service).
124. Unless and until we can build a broader base of support for obligations that substantially benefit the most underserved groups, the prudent alternative would be to focus on strengthening voluntary initiatives...." Id. at 172.
125. In Florida, the Supreme Court imposed a reporting obligation in 1993, but did not set any minimum number of pro bono hours. The total number of pro bono hours reported by Florida attorneys increased over the next decade. This statistic is somewhat dubious, however, because the Florida Bar simply required lawyers to write their annual total of pro bono hours on their bar membership dues statement at the end of the year. The bar did not require a breakdown based on clients, dates, or even categories of pro bono work. The bar did not investigate the validity of lawyers' reports about their pro bono work. See Kelli Isbell, Pro Bono Publico.- Voluntary Service and Mandatory Reporting, 15 GEO. J. LEGAL ETHICS 845, 859-61 (2002).
126. CorporateProBono.Org, an internet-based think tank that studies corporate lawyers' pro bono work, retained Association Publishers, Inc. to conduct a study of in-house counsel in 2001. A total of 1,000 prospective respondents were culled from the list of attorneys at Fortune 500 companies or from the American Corporate Counsel Association's membership list. Only 15.6% of the recipients actually returned the survey. Among respondents, "[o]nly 3% said that their law department requests information about the pro bono efforts of law firms bidding for their business or retained by their company." CorporateProBono.Org In-House Pro Bono Research Study: Executive Summary, Fall 2001, at 5, http://www.cpbo.org/resources/displayResource.cfm?resourceID- 1291.
127. RHODE, supra note 8, at 169.
128. Id. at 169-70.
129. Id. at 170.
130. Id. at 159-60.
131. Id. at 168; see Richard Painter, Rules Lawyers Play By, 76 N.Y.U. L. REV. 665, 726-28 (2001) (considering viability of such a strategy).
132. RHODE, supra note 8, at 173.
133. ABA MODEL RULE 6.3 relaxes the conflicts rules for lawyers serving as directors of legal organizations, and ABA MODEL RULE 6.4 liberalizes the conflicts rules for lawyers serving on the boards of law reform organizations. ABA MODEL RULE 6.5 allows lawyers involved in short-term pro bono representation to escape accountability for some of their own conflicts and imputed conflicts, provided that the lawyers have no actual knowledge of the conflicts. ABA MODEL RULES, supra note 2, at 84-85.
134. '12 Indeed, the preliminary tasks of training, background research, creation of files, and initial meetings with clients consume so much of the 50-hour period that little time remains in which to represent the client.
135. The firm as a whole would need to report a total amount of pro bono hours equal to the number of attorneys times the annual or triennial benchmark.
136. This payment would go to a fund that subsidizes legal aid groups.
137. RHODE & LUBAN, supra note 32, at 840 n.46 ("Only a few states explicitly permit fines, such as California and Nevada; and less than a dozen a year are reported to the ABA's National Lawyer Regulatory Data Bank.").
138. BENJAMIN FRANKLIN, POOR RICHARD'S ALMANACK 546 (J. A. Leo Lemay ed., Library Classics of the United States 1997) (1756).
139. See Steven Bene, Why Not Fine Attorneys? An Economic Approach to Lawyer Disciplinary Sanctions, 43 STAN. L. REV. 907, 937-38 (1991).
140. The organized bar created the demand for CLE by its own fiat, and then the bar itself became the primary provider of CLE programs. The bar exploits its position as a quasi-governmental, quasi-private entity: it mandates consumption of the very services it sells.
141. Bar officials expressly refer to the CLE industry as a cash cow. For example, a candidate for the Arizona Bar's Board of Governors made this comment on the campaign trail: "Principally the Bar is funded through dues and CLE revenues. In order to keep the pressure of increasing dues low we must increase CLE revenues." Statement by Steven Pitt, candidate for Arizona Bar Board of Governors, reprinted in Board of Governors Candidates, 41 AZ. ATTY., May 2005, at 46.
142. See also State Bar Now Offers Catalog of Online CLEs, MONT. LAWYER, Sept. 2003, at 6 (noting that "[a]ll but 4 percent of the revenue goes to the State Bar").
143. The need for a continuing legal education requirement is questionable when the ethics rules require lawyers to remain abreast of recent developments in their field in order to provide competent legal services. See ABA MODEL RULE 1.1, supra note 2, at 10 ("Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."). The comments to Model Rule 1.1 counsel that lawyers must "engage in continuing study and education" in order to maintain their competence. ABA MODEL RULE 1.1 cmt. 6, id. This authority would require self-directed study in the absence of state bars' self-serving CLE requirements.
144. A brochure for this event gave the following description: "Eighteen ethics scenarios and a set of multiple-choice answers are your course materials. Three other players complete your team. As you play each hole discuss a scenario and your answers. At the conclusion of the game, head to the '19th Hole' for a panel discussion of the scenarios and answers by legal ethics specialists." Oregon State Bar Continuing Legal Education, Ethics in 18 Holes, Friday, Apr. 11, 2003, The Resort at the Mountain, Welches, Oregon (copy on file with author).
145. See Gary Gildin, Reality Programming Lessons for Twenty-First Century Trial Lawyering, 31 STETSON L. REV. 61, 64 n.8 (2001) (listing bar-sponsored CLE programs that consist in large part of showing Hollywood movies about lawyers).
146. See Marie Fallinger, Is Tom Shaffer a Covenantal Lawyer?, 11 NOTRE DAME L..REV. 705, 777 n.317 (2002) (describing a CLE event that takes place as part of "the annual motorcycle bash" at Sturgis, South Dakota every summer).
147. The Virginia Law Foundation, an organization in which the Virginia Bar is a partner, has staged a CLE program called "Ethics Rock!" The online description offers no less than four CLE credits for "A Live Legal Ethics Program Performed to the Tunes of '60s Rock and Roll." Somehow the presenters manage to weave in songs by the Who, the Beatles, and James Taylor, among others. Virginia Continuing Legal Education, http://www.vacle.org/php-bin/ ecomm4/products.php?product_id=939 (last visited on April 17, 2006). One of the performers insists that "in continuing legal education, rock and roll is here to stay." ProEthics, Lawyers Get Ethics Credits to Classic Rock '«' Roll in "Ethics Rock," http://www.proethics.com/er_0804. html (last visited Oct. 13, 2006).
148. State bars that favor a hortatory approach to pro bono work, and defend the efficacy of aspirational standards in general, should not object to adopting the same approach in the context of continuing legal education.
149. Richard Posner, Let Employers Insist if Three Years of Law School is Necessary, SAN FRANCISCO DAILY J., Dec, 15, 1999, at A4;
150. see Stefanie Shaffer, The First Question on Third Year: Why? Bad Attendance, Debt Levels Fuel Debate, NAT'L L.J., Aug. 22, 2005, at 6 (quoting UCLA Law Professor Richard Sander, who commented that "[l]aw schools generally weaken in the third year .... The courses reflect teachers' research interests instead of students' professional development");
151. John Sexton, "Out of the Box": Thinking About the Training of Lawyers in the Next Millennium, 43 S. TEX. L. REV. 623, 624 (2002) (noting that virtually all third year courses are elective, and that some scholars have reasoned that perhaps "the burden is on educators to justify the expense imposed by the third year of study").
152. For example, the University of Dayton School of Law now allows students to earn a law degree in a span of five semesters over two years. Shaffer, supra note 126, at 6.
153. Dena Rifkin, A Third-Year Student in Clinical Clerkships, YALE J. FOR HUMAN. IN MED., http://yjhm.yale.edu/archives/careers/drifkin.htm (last visited Feb. 25, 2007) ("The third year in medical school is known as the first 'clinical year', which means that for the first time in our book-bound lives y classmates and I will learn on the job instead of in the classroom. We spend the year caring for patients ....").
154. See Deborah Cantrell, The Obligation of Legal Aid Lawyers to Champion Practice by Nonlawyers, 73 FORDHAM L. REV. 883, 885-94 (2004) (criticizing UPL statutes and collecting evidence that laypeople are competent to handle several categories of legal work);
155. see also Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology Will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229, 1269 (1995) (discussing an arrangement whereby "the bar could provide its members with a certificate establishing certain credentials, ... but only those admitted to the bar would be able to call themselves 'lawyers'").
156. See Margaret Onys Rentz, Note, Laying Down the Law: Bringing Down the Legal Cartel in Real Estate Settlement Services and Beyond, 40 GA. L. REV. 293, 299-302 (2005) (arguing for modification of UPL statutes to permit conveyancing by laypersons).
157. See Schmitz, supra note 12, at 312-17 (urging rules allowing lay advocates to represent battered women in securing restraining orders).
158. Oregon Ballot Measure 5, passed by the voters through the initiative process in 1978, wrested away from dentists the exclusive right to install dentures, and shared this business with a less expensive tier of professionals who became known as denturists. See M. Dane Waters, INITIATIVE AND REFERENDUM ALMANAC 359, 366 (Carolina Academic Press 2003). In 2002, Oregon voters also gave denturists the right to install partial dentures, another area of business that dentists had previously monopolized.
159. For more information about the 2002 measure, see Board of Denture Technology, Position Statement Regarding the Implementation of Ballot Measure 24 Related to Partial Dentures (Feb. 24, 2003), http://egov.oregon.gov/OHLA/DT/ docs/measure24.pdf (discussing passage of Measure 24 by Oregon voters in 2002). In both instances, the primary motivation was to reduce the costs borne by consumers. This argument was explicit in the text of Ballot Measure 24, which stated that "Oregon seniors and other denture consumers have paid a far greater price to purchase dentures from a dentist then [sic] from a denturist." Text of Ballot Measure 24 (Nov. 5, 2002) available at http://www.sos.state.or.us/elections/nov52002/guide/measures/m24.htm.
160. Charles J. Ogletree, Jr., Personal and Professional Integrity in the Legal Profession: Lessons from President Clinton and Kenneth Starr, 56 WASH. & LEE L. REV. 851, 865 (1999)
161. ("[L]aw schools and the dominant case method ultimately teach the incommensurability of values and a moral relativism . . . ,") (citing ANTHONY T. KRONMAN, THE LOST LAWYER: THE FAILING IDEALS OF THE LEGAL PROFESSION 113 (1993));
162. Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 MICH. L. REV. 34, 73-74 (1993) (decrying law schools' failure to stress ethical principles);
163. Paul T. Wangerin, Objective, Multiplistic and Relative Truth in Developmental Psychology and Legal Education, 62 TUL. L. REV. 1237, 1249-50 (1988) (noting that law schools encourage and reward relativistic thinking).
164. See Daniel R. Coquillette, Professionalism: The Deep Theory, 72 N.C. L. REV. 1271, 1274 (1998) ("Cynicism and Sophism, in the classical Greek sense, are alive and well in American law schools today. Moral relativism and its corollary - a theory of 'professional' teaching that equips each future lawyer to pursue whatever ends she or her client may choose-may be found everywhere,").
165. Rhode notes research indicating that socialization during early childhood can instill a service ethic. RHODE, supra note 8, at 63. A similar analysis of normative education during college and law school would be helpful.
166. Id. at 159-60.
167. Coquillette, supra note 134, at 1275-77. "Self-respect demands that we get away from the intellectual tyranny of instrumentalism," whereby the lawyer has no ethical responsibilities other than to pursue the goals announced by paying clients. A devotee of Kant, Coquilette insisted that "[w]e are not just means to someone else's ends. We have a far prouder heritage, which, unfortunately, has been obscured in the classroom, This heritage is founded on our ancient duties: to protect the rule of law as an ideal, to serve the system of justice on which our democracy is based, and to study and promote humanism-the mutual bonds of our humanity on which peace itself ultimately depends," Id. at 1277.
168. Robert D. Orr, Norman Pang, Edmund D. Pellegrino & Mark Siegler, Use of the Hippocratic Oath: A Review of Twentieth Century Practice and a Content Analysis of Oaths Administered in Medical Schools in the U.S. and Canada in 1993, 8 J. CLINICAL ETHICS 377, 379 (1997) (noting the widespread use of the Hippocratic Oath in medical schools). According to the web page for NOVA, a PBS television show that focuses on science-related issues, "oath-taking in recent decades has risen to near uniformity, with just 24 percent of U.S. medical schools administering the oath in 1928 to nearly 100 percent today."
169. Peter Tyson, The Hippocratic Oath Today: Meaningless Relic or Invaluable Moral Guide?, NOVA ONLINE, http://www.pbs.org/wgbh/nova/ doctors/oath_today.html (last visited on Apr. 4, 2007).
170. See generally STEVEN H. MILES, THE HIPPOCRATIC OATH AND THE ETHICS OF MEDICINE
171. For example, the Cornell Medical College recently approved substantial revisions to its version of the Hippocratic Oath. David Wittenberg, Cornellians Modernize Hippocratic Oath, CORNELL DAILY SUN, Jan. 26, 2006, at 5-6.
172. See, e.g., Tyson, supra note 138 (noting that nearly 100% of medical schools administer the Hippocratic Oath today),
173. RHODE, supra note 8, at 97.
174. See W. Bradley Wendel, Public Values and Professional Responsibility, 75 NOTRE DAME L. REV. 1, 10 (1999) (noting that law school professional responsibility courses have focused primarily on a regulatory approach rather than one that tries to inculcate moral values).
175. DEBORAH L. RHODE & DAVID LUBAN, LEGAL ETHICS (Foundation Press 4th ed. 2004).
176. Rhode's survey appears to have netted a limited number of such respondents incidentally. RHODE, supra note 8, at 134-35. A more thorough sampling of these lawyers would yield more reliable insights.
177. Id. at 41.
178. Rhode reported that "the ABA's Standing Committee on Legal Aid and Indigent Defendants testified against a proposed ABA ethical rule mandating pro bono assistance on the ground that 'poor clients . . . deserve lawyers who want to represent them and will do it with vigor.'" Id. (citing Scott Cummings, The Politics of Pro Bono, 52 UCLA L. REV. 1, 50 (2004)).
179. RHODE, supra note 8, at 37-38, 172. For example, Esther Lardent, the President of the Pro Bono Institute at the Georgetown University Law Center, has cited such concerns in protesting a pro bono requirement. "What kind of service will pro bono clients receive [if pro bono is mandatory]? The argument can be made that attorneys, forced to provide service, may do so in a grudging manner that discourages clients from continuing to press their legal claims. Lawyers doing pro bono against their will are less likely to seek out the training and support they need to handle specialized poverty law cases."
180. Esther Lardent, The Case Against: "Just Say No... To Mandatory Pro Bono, " available at http://www.probonoinst.org/pdfs/justsayno.pdf.
181. See also Esther Lardent, Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question, 49 MD. L. REV. 78, 100 (1990) (predicting that under a mandatory pro bono regime, "[a]ll lawyers will be in compliance, yet no additional service to address unmet legal needs will be provided").
182. See supra note 130 and accompanying text.
183. See supra note 131 and accompanying text.
184. Deborah L. Rhode, Pro Bono in Principal [sic] and in Practice, 26 HAMLINE J. PUB, L. & POL'Y 315, 315 (2005). As of April 17, 2006, the word "principal" appears in the title of both the Westlaw version (26 HAMJPLP 315) and the version on the journal's website (www.hamline.edu/law/joumals/law_policy/01d_Articles/ Rhodes%20article%20formatted.pdf).