Taking ethical obligations seriously: A lookat American codes of professional responsibility through a perspective of Jewish law and ethics

Catholic University Law Review

Volumn 57, Issue 1, 2007, Pages 165-202

  Levine, Samuel J ^a  

^a PEPPERDINE UNIVERSITY   (United States)

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EID: 42149169763     PISSN: 00088390     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (450)

1. See, e.g., ENRON: CORPORATE FIASCOS AND THEIR IMPLICATIONS, (Nancy B. Rapoport & Bala G. Dharan eds., 2004) (collecting essays that examine the failure of Enron from "business, financial, legal, and ethical perspectives");
2. MARY ANN GLENDON, A NATION UNDER LAWYERS (1994);
3. THE GOOD LAWYER (David Luban ed., 1983) (collecting essays that "ask whether the professional ideal is itself morally worthy");
4. ANTHONY T. KRONMAN, THE LOST LAWYER (1993) (addressing "a crisis in the American legal profession," namely that it "now stands in danger of losing its soul");
5. SOL M. LINOWITZ WITH MARTIN MAYER, THE BETRAYED PROFESSION (1994) (proposing to offer "suggestions as to how we lawyers might rekindle pride in our profession and restore the practice of law to the respected position it once occupied");
6. DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE 1 (2000) (noting that "it appears from the chronic laments by critics" that "[l]awyers belong to a profession permanently in decline");
7. THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP, AM. BAR ASS'N, LEGAL EDUCATION AND PROFESSIONAL DEVELOPMENT - AN EDUCATIONAL CONTINUUM 207-21 (1992) (identifying and developing four categories of values that are fundamental to the legal profession);
8. WILLIAM H. SIMON, THE PRACTICE OF JUSTICE 1 (1998) ("No social role encourages such ambitious moral aspirations as the lawyer's, and no social role so consistently disappoints the aspirations it encourages.");
9. Roger C. Cramton, Enron and the Corporate Lawyer: A Primer on Legal and Ethical Issues, 58 BUS. LAW. 143 (2002);
10. Eugene R. Gaetke, Foreword, Renewed Introspection and the Legal Profession, 87 KY. L.J. 903, 903 (1999) (noting that "the legal profession is again immersed in a process of self-assessment, reflection, and reform" partly because "the nation is again enduring turmoil engendered by allegations of indiscretion and misconduct at the highest levels of our national government . . . lawyers are inordinately implicated");
11. Robert W. Gordon, A New Role for Lawyers?: The Corporate Counselor After Enron, 35 CONN. L. REV. 1185 (2003);
12. Robert W. Gordon, "The Ideal and the Actual in the Law": Fantasies and Practices of New York City Lawyers, 1870-1910, in THE NEW HIGH PRIESTS 51 (Gerard W. Gawalt ed., 1984);
13. Robert W. Gordon, The Independence of Lawyers, 68 B.U. L. REV. 1, 33 (1988) (discussing the professional autonomy of lawyers and stating that "the norms of independent practice need to be authoritatively declared and promoted, acted upon by powerful lawyers, and institutionalized in elite legal practice" to be effective);
14. Susan P. Koniak, Corporate Fraud: See, Lawyers, 26 HARV. J.L. & PUB. POL'Y 195, 195 (2003) (arguing that "without lawyers, few corporate scandals would exist");
15. Donald C. Langevoort, Where Were the Lawyers? A Behavioral Inquiry into Lawyers' Responsibility for Clients' Fraud, 46 VAND. L. REV. 75, 77 (1993) (asserting that "the apparent incidence of complicity must trouble both the public and the profession" even without actual data on the frequency of complicity or the effects of attorney efforts to deter client misconduct);
16. Samuel J. Levine, Faith in Legal Professionalism: Believers and Heretics, 61 MD. L. REV. 217 (2002) (examining the views of Dean Anthony Kronman, including his "loss of faith in the legal profession");
17. Samuel J. Levine, Rediscovering Julius Henry Cohen and the Origins of the Business/Profession Dichotomy: A Study in the Discourse of Early Twentieth Century Legal Professionalism, 47 AM. J. LEGAL HIST. 1 (2005);
18. David Luban, The Adversary System Excuse, in THE GOOD LAWYER, supra, at 83, 85-86 (relating the example of Edward Bennett Wiliams's use of a tactic called "graymailing" in his defense of former CIA director Richard Helms);
19. William H. Simon, Wrongs of Ignorance and Ambiguity: Lawyer Responsibility for Collective Misconduct, 22 YALE J. ON REG. 1, 30 (2005) (criticizing the bar for its "visceral clinging to the prerogatives of ignorance and ambiguity" in response to the SECs implementation of Sarbanes-Oxley);
20. Rayman L. Solomon, Five Crises or One: The Concept of Legal Professionalism, 1925-1960, in LAWYERS' IDEALS/ LAWYERS' PRACTICES 144, 145 (Robert L. Nelson, David M. Trubek & Rayman L. Solomon eds., 1992) (arguing that "professionalism, as conceived by the elite of the bar, is a set of symbolic rhetorical and normative concepts having consistent content");
21. David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992).2.
22. See, e.g., MONROE H. FREEDMAN & ABBE SMITH, UNDERSTANDING LAWYERS' ETHICS 2-6 (3d ed. 2004) (reviewing the history and purposes of the ABA ethics codes);
23. STEPHEN GILLERS, REGULATION OF LAWYERS 3-6 (7th ed. 2005) (reviewing revision efforts, including those of the Kutak Commission, the Ethics 2000 Commission, and the Task Force on Corporate Responsibility);
24. CHARLES W. WOLFRAM, MODERN LEGAL ETHICS 48-67 (1986) (discussing the development of, rationales for, and implementation and revision of ethics codes);
25. Richard L. Abel, Why Does the ABA Promulgate Ethical Rules?, 59 TEX. L. REV. 639 (1981);
26. Benjamin H. Barton, The ABA, the Rules, and Professionalism: The Mechanics of Self-Defeat and a Call for a Return to the Ethical, Moral, and Practical Approach of the Canons, 83 N.C. L. REV. 411, 437 (2005) (noting that the ABA Model Code or Professional Responsibility was revised four times in eight years);
27. Reed Elizabeth Loder, Tighter Rules of Professional Conduct: Saltwater for Thirst?, 1 GEO. J. LEGAL ETHICS 311, 323-34 (1987) (expressing doubt that any revision of "a given set of black letter rules" could create the consensus required to promote compliance on a voluntary basis);
28. Margaret Colgate Love, The Revised ABA Model Rules of Professional Conduct: Summary of the Work of Ethics 2000, 15 GEO. J. LEGAL ETHICS 441, 442-43 (2002) (observing that the Ethics 2000 Commission set out to make minimal substantive changes to the Model Code, but in the end, revised nearly every rule);
29. Nancy J. Moore, Lawyer Ethics Code Drafting in the Twenty-First Century, 30 HOFSTRA L. REV. 923, 925-32 (2002) (reviewing the ABA's efforts to revise an existing code before undertaking to develop an entirely new one);
30. Thomas Morgan, The Evolving Concept of Professional Responsibility, 90 HARV. L. REV. 702, 704 (1977) (observing that "pressure for revision of several basic concepts of professional responsibility is both sound and inevitable");
31. Alice Neece Moseley, Fred H. Moody, Jr., & John H. Vernon, III, An Overview of the Revised North Carolina Rules of Professional Conduct: An Examination of the Interests Promoted and Subordinated, 32 WAKE FOREST L. REV. 939 (1997) (examining North Carolina's revised professional responsibility rules);
32. Richard W. Painter, Rules Lawyers Play By, 76 N.Y.U. L. REV. 665, 668 (2001) (pointing out the trend of successive revisions of ethics codes toward more clearly delineated rules and away from general standards);
33. Russell G. Pearce, Rediscovering the Republican Origins of the Legal Ethics Codes, 6 GEO. J. LEGAL ETHICS 241 (1992) (examining "the significant impact that the [George] Sharswood's treatise had upon the drafting of the codes," and suggesting that the codes must be read in light of historical context);
34. Deborah L. Rhode, Ethical Perspectives on Legal Practice, 37 STAN. L. REV. 589, 589-92 (1985) (discussing conflicts between professional ideals, individual autonomy, and lawyers' public responsibilities);
35. Ronald D. Rotunda, Teaching Professional Responsibility and Ethics, 51 ST. LOUIS U. L.J. 1223, 1226 (2007) (noting that court involvement has compelled the bar to change its ethics standards);
36. Ted Schneyer, Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct, 14 LAW & SOC INQUIRY 677 (1989) (examining the "internal politics of the bar" through the development of the Model Rules);
37. Symposium, Ethics 2000 and Beyond: Reform or Professional Responsibility as Usual?, 2003 U. ILL. L. REV. 1173 (collecting articles that "thoughtfully analyze and critique specific aspects of Ethics 2000, both with regard to what it did and did not do");
38. E. Norman Veasey, Ethics 2000: Thoughts and Comments on Key Issues of Professional Responsibility in the Twenty-First Century, 5 DEL. L. REV. 1, 3 (2002) (stating that the recent revision of the Model Rules was intended to address the problem of non-uniform state regulation and the impact of technological development on legal services);
39. Fred C. Zacharias, The Future Structure and Regulation of Law Practice: Confronting Lies, Fictions, and False Paradigms in Legal Ethics Regulation, 44 ARIZ. L. REV. 829, 830 (2002) (noting the bar's tendency to revise the individual provisions of ethics codes rather than question their underlying premises).
40. See, e.g., COMM'N ON PROFESSIONALISM, AM. BAR ASS'N, IN THE SPIRIT OF PUBLIC SERVICE: A BLUEPRINT FOR THE REKINDLING OF LAWYER PROFESSIONALISM 3 (1986) (reporting negative perceptions of the public toward lawyers generally);
41. Samuel J. Levine, Professionalism Without Parochialism: Julius Henry Cohen, Rabbi Nachman of Breslov, and the Stories of Two Sons, 71 FORDHAM L. REV. 1339, 1339 (2003) (noting that "a voluminous debate over the characterization of legal practice as a business or a profession" has developed in recent years);
42. Nancy J. Moore, Professionalism Reconsidered, 1987 AM. B. FOUND. RES. J. 773
43. (reviewing COMM'N ON PROFESSIONALISM, supra);
44. Russell G. Pearce, Law Day 2050: Post-Professionalism, Moral Leadership, and the Law-as-Business Paradigm, 27 FLA. ST. U. L. REV. 9 (1999) (envisioning how the organized bar could achieve a higher level of moral leadership were it to approach the profession as a business);
45. 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, 1232 (1995) ("[T]he widespread perception . . . that law practice is a business. . . . has provoked a professional crisis.");
46. see also Rob Atkinson, A Dissenter's Commentary on the Professionalism Crusade, 74 TEX. L. REV. 259, 276-77 (1995) (explaining the development of the "current professionalism crusade" and its focus on "voluntary compliance with aspirational standards");
47. Robert F. Cochran, Jr., Professionalism in the Postmodern Age: Its Death, Attempts at Resuscitation, and Alternate Sources of Virtue, 14 NOTRE DAME J.L. ETHICS & PUB. POL'Y 305, 305-06 (2000) (noting that professionalism movements predictably follow highly publicized scandals involving lawyers);
48. Eugene R. Gaetke, Expecting Too Much and Too Little of Lawyers, 67 U. PITT. L. REV. 693, 694 (2006) (opining that current ethics codes set standards of lawyer conduct that are inconsistent with public expectations);
49. Anthony T. Kronman, Legal Professionalism, 27 FLA. ST. U. L. REV. 1, 1 (1999) ("The legal profession in America is passing through a period of anxiety and self-doubt, an identity crisis of unprecedented proportions.");
50. Russell G. Pearce, The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics, 75 FORDHAM L. REV. 1339, 1341 (2006) ("The dominant-although not exclusive-modern conception of the lawyer as a hired gun .... asserts that the proper functioning of the legal system requires lawyers to remove personal ethical values from their work.");
51. Thomas L. Shaffer, Inaugural Howard Lichtenstein Lecture in Legal Ethics: Lawyer Professionalism as a Moral Argument, 26 GONZ. L. REV. 393, 395 (1990-91) ("The professionalism campaign is a nostalgic appeal to a particular kind of moral leadership . . ..");
52. Thomas L. Shaffer, The Lost Lawyer: Failing Ideals of the Legal Profession, 41 LOY. L. REV. 387 (1995)
53. (reviewing KRONMAN, supra note 1);
54. Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975) (addressing basic moral criticisms of the lawyer's position with respect to his client and the world at large).
55. See, e.g., Samuel J. Levine, Taking Ethical Discretion Seriously: Ethical Deliberation as Ethical Obligation, 37 IND. L. REV. 21, 57 nn.151-52 (2003) [hereinafter Levine, Taking Ethical Discretion Seriously] (noting that Jewish law acknowledges the ethical complexity of legal decisionmaking);
56. Samuel J. Levine, Taking Ethics Codes Seriously: Broad Ethics Provisions and Unenumerated Ethical Obligations in a Comparative Hermeneutic Framework, 11 TUL. L. REV. 527, 543-45 & n.60 (2003) [hereinafter Levine, Taking Ethics Codes Seriously] (arguing that "Jewish law may provide a particularly helpful interpretive model for the analysis of ethics codes");
57. Samuel J. Levine, The Yale L. Rosenberg Memorial Lecture: Taking Prosecutorial Ethics Seriously: A Consideration of the Prosecutor's Ethical Obligation to "Seek Justice" in a Comparative Analytical Framework, 41 HOUS. L. REV. 1337, 1340 (2004) [hereinafter Levine, Taking Prosecutorial Ethics Seriously] (emphasizing that "the prosecutor must take into account complex implications of the concept of justice," and that "Jewish law recognizes and address the complexity of ethical and normative decisionmaking").5. Scholars have documented numerous areas in which the Model Rules leave ethical decisions to the discretion of the lawyer.
58. See, e.g., Gaetke, supra note 3, at 721-22 & nn.124-29 (identifying situations in which "[t]he current rules . . . grant considerable discretion to lawyers");
59. Bruce A. Green & Fred C. Zacharias, Permissive Rules of Professional Conduct, 91 MINN. L. REV. 265, 269-70 & nn.16-22, 276-78 & nn.41-55 (2006) (noting that professional rules generally use the permissive term "may" rather than mandatory terms such as "must" or "shall");
60. W. Bradley Wendel, Public Values and Professional Responsibility, 75 NOTRE DAME L. REV. 1, 11-12 & nn.31-33 (1999) (noting that some rules "by their terms leave room for deliberation");
61. Fred C. Zacharias, Reconciling Professionalism and Client Interests, 36 WM. & MARY L. REV. 1303, 1335-36 & nn.101-08 (1995) (listing areas open to a lawyer's discretion in the negotiating context and stating that "[i]n practice . . . the codes provide authority for virtually any negotiating approach the lawyer chooses to take");
62. see also Levine, Taking Ethical Discretion Seriously, supra note 4, at 49 n.141 (reviewing scholarly documentation of the fact that ethics rules are not exhaustive, thus requiring some deliberation and discretion on the part of lawyers).
63. See generally David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 468, 470-78 (1990) (setting forth the traditional model of legal ethics and the legal realist critique of that model).
64. See Green & Zacharias, supra note 5 ("Not surprisingly, given lawyers' self-interest and the structure of some of the rules, many practicing lawyers take an extremely lawyer-protective view of permissive rules. They assume that whenever ethics provisions permit lawyers to act in a certain way, the provisions are defining an area in which lawyer conduct is meant to be unconstrained. On this understanding, the choice of conduct belongs entirely to individual lawyers. A lawyer's decision within the area covered by a permissive rule is both unregulated by the disciplinary process and intended to be free from other regulatory oversight." (footnotes omitted));
65. see also Heidi Li Feldman, Codes and Virtues: Can Good Lawyers Be Good Ethical Deliberators?, 69 S. CAL. L. REV. 885, 898 (1996) (stating that "[t]he more frequently a black letter ethics code is inconclusive," the more frequently opportunities arise for "interpreting the rules simply to permit pursuit of the client's ends, without regard to independent ethical concerns"). Moreover, Professor Zacharias has noted that: When the codes authorize lawyers to choose between emphasizing partisanship and important third party or societal interests, lawyers' natural [i.e., personal and economic] incentives encourage them to select partisanship. Lawyers who make that choice can readily justify their conduct as mandated by the code by claiming adherence to the code provisions that call for zeal.
66. Zacharias, supra note 4, at 1340;
67. see Fred C. Zacharias, Coercing Clients: Can Lawyer Gatekeeper Rules Work?, 47 B.C. L. REV. 455, 495 (2006) ("Other rules simply give lawyers discretion to act, which allows lawyers to base their decisions on personal, potentially venal, incentives");
68. see also Levine, Taking Ethical Discretion Seriously, supra note 4, at 56-57 & nn.151-52.
69. See discussion infra Part I.A-C. One example can be found in the ABA's resistance to the Security Exchange Commission's (SEC) proposal, pursuant to Sarbanes-Oxley regulations, to mandate that lawyers disclose corporate wrongdoing.
70. See Green & Zacharias, supra note 5, at 271-72;
71. see also Sarbanes-Oxley Act of 2002 § 307, 15 U.S.C. § 7245 (Supp. III 2005) (directing the SEC to issue rules regulating the professional conduct of attorneys);
72. MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(2)-(3);
73. id. R. 1.13(c);
74. STEPHEN GILLERS & ROY D. SIMON, REGULATION OF LAWYERS 173-75 (2007) (reviewing the legislative history of amendments made in 2002 and 2003 to Model Rule 1.13 by the ABA House of Delegates, and the recommendations of the ABA Presidential Task Force on Corporate Responsibility).For further analysis of the organized bar's response to Sarbanes-Oxley regulations,
75. see, for example, Thomas G. Bost, Corporate Lawyers After the Big Quake: The Conceptual Fault Line in the Professional Duty of Confidentiality, 19 GEO. J. LEGAL ETHICS 1089 (2006);
76. Roger C. Cramton, George M. Cohen & Susan P. Koniak, Legal and Ethical Duties of Lawyers After Sarbanes-Oxley, 49 VILL. L. REV. 725 (2004);
77. Lawrence J. Fox, The Fallout from Enron: Media Frenzy and Misguided Notions of Public Relations Are No Reason to Abandon Our Commitment to Our Clients, 2003 U. ILL. L. REV. 1243;
78. Susan P. Koniak, When the Hurlyburly's Done: The Bar's Struggle with the SEC, 103 COLUM. L. REV. 1236 (2003);
79. William H. Simon, After Confidentiality: Rethinking the Professional Responsibilities of the Business Lawyer, 75 FORDHAM L. REV. 1453 (2006).
80. See, e.g., Leslie Boyle, Meeting the Demands of the Indigent Population: The Choice Between Mandatory and Voluntary Pro Bono Requirements, 20 GEO. J. LEGAL ETHICS 415, 416-17 (2007);
81. Steven Lubet & Cathryn Stewart, A "Public Assets" Theory of Lawyers' Pro Bono Obligations, 145 U. PA. L. REV. 1245. 1261-62 (1997);
82. Michael Millemann, Mandatory Pro Bono in Civil Cases: A Partial Answer to the Right Question, 49 MD. L. REV. 18, 59-60 (1990);
83. Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 FORDHAM L. REV. 2415, 2415 (1999);
84. Chesterfield H. Smith, A Mandatory Pro Bono Service Standard-Its Time Has Come, 35 U. MIAMI L. REV. 727, 727 (1981);
85. see also Symposium on Mandatory Pro Bono, 19 HOFSTRA L. REV. 739 (1991).
86. But see Esther F. Lardent, Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question, 49 MD. L. REV. 78, 79 (1990);
87. Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the Rich?, 11 CORNELL L. REV. 1115, 1115, 1119 (1992).
88. MODEL RULES OF PROF'L CONDUCT R. 8.1 (Discussion Draft 1980),
89. quoted in GILLERS & SIMON, supra note 7, at 390 (emphasis added).
90. MODEL RULES OF PROF'L CONDUCT R. 6.1 (1983),
91. quoted in GILLERS & SIMON, supra note 7, at 390 (emphasis added).
92. MODEL RULES OF PROF'L CONDUCT R. 6.1 (2006) (emphasis added);
93. see also GILLERS & SIMON, supra note 7, at 390-92 (presenting the legislative history of the 1993 amendments). Although at least one commentator perceived the 1993 amendments as indicating a "trend towards mandatory pro bono,"
94. B. George Ballman, Jr., Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 1 GEO. J. LEGAL ETHICS 1139, 1139 (1994), the Model Rules have yet to include a provision requiring pro bono service.
95. See generally Tom Lininger, From Park Place to Community Chest: Rethinking Lawyers' Monopoly, 101 NW. U. L. REV. 1343, 1353 (2007)
96. (reviewing DEBORAH L. RHODE, PRO BONO IN PRINCIPLE AND IN PRACTICE (2005)) (noting that Rhode's book describes the fifty hour recommendation of Model Rule 6.1 as "toothless").
97. But see Samuel R. Bagenstos, Mandatory Pro Bono and Private Attorneys General, 101 NW. U. L. REV. 1459 (2007) (suggesting that a mandatory system of pro bono service may actually result in undermining the service as a whole).
98. See Love, supra note 2, at 441-42; Moore, supra note 2, at 923;
99. Veasey, supra note 2, at 1.
100. See MODEL RULES OF PROF'L CONDUCT R. 6.1 (2006).
101. See id.
102. See id.
103. See GILLERS, supra note 2, at 136 (observing that attorney "fees are often a basis for client complaints or bitterness");
104. WOLFRAM, supra note 2, at 557 ("A typical report of bar committees and researchers is that fee disputes are frequent, and a high proportion of client and public complaints about lawyers involve charges of excessive fee charges."). As the North Carolina State Bar Newsletter has described it,"Historically, a problem which has plagued both the Bar and the public has been the number of disputes between lawyers and clients relating to fees. Fee disputes have generated numerous grievances filed with the State Bar against lawyers, but the grievance procedure is neither a proper nor satisfactory forum for effectively dealing with the problem."
105. Moseley, Moody & Vernon, supra note 2, at 940 n.3
106. (quoting Professionalism Report, N.C. ST. B. NEWSL. (N.C. State Bar, Raleigh, N.C.), Fall 1992, at 8);
107. see also Alan Scott Rau, Resolving Disputes Over Attorneys' Fees: The Role of ADR, 46 SMU L. REV. 2005, 2006 (1993) (stating that "the suspicion persists that disputes over fees constitute a major and particularly intractable share of all attorney-client conflict");
108. id. at 2018 ("[I]t appears certain that both the number of litigated cases appearing in the reports and the number of complaints made to the bar's disciplinary agencies give a very inadequate picture of the prevalence of fee disputes between attorney and client." (footnote omitted)).
109. See MODEL RULES OF PROF'L CONDUCT R. 1.5 (2006).
110. See GILLERS & SIMON, supra note 7, at 60-61 (providing the legislative history of Model Rule 1.5).
111. See GILLERS & SIMON, supra note 7, at 60
112. (quoting MODEL RULES OF PROF'L CONDUCT (Unofficial Pre-Circulation Draft 1979)) (emphasis added).
113. MODEL RULES OF PROF'L CONDUCT R. 1.5 (Proposed Final Draft 1981),
114. quoted in GILLERS & SIMON, supra note 7, at 61 (emphasis added).
115. MODEL RULES OF PROF'L CONDUCT R. 1.5(b) (1983),
116. quoted in GILLERS & SIMON, supra note 7, at 61 (emphasis added).
117. See MODEL RULES OF PROF'L CONDUCT R. 1.5 cmt. [2] (2006).
118. See WOLFRAM, supra note 2, at 503 n.48 ("There are few good reasons not to reduce agreements to writing.").
119. See id. at 503 ("The desirability of a writing is suggested by occasional statistics from fee arbitration agencies showing that a high percentage of disputes involve unwritten fee agreements." (footnote omitted));
120. see also GILLERS, supra note 2, at 136-37 ("Why would a profession-which ... is supposed to put service and the public interest above the quest for wealth . . . -refuse to require written fee agreements . . . ?");
121. Lawrence A. Dubin, Client Beware: The Need For a Mandatory Written Fee Agreement Rule, 51 OKLA. L. REV. 93, 95 (1998) ("With the widespread recognition that the use of written fee agreements would be beneficial to lawyers and clients in reducing the large number of fee disputes, . . . why is there no such mandatory rule?");
122. Stephen Gillers, Caveat Client: How the Proposed Final Draft of the Restatement of the Law Governing Lawyers Fails to Protect Unsophisticated Consumers in Fee Agreements with Lawyers, 10 GEO. J. LEGAL ETHICS 581, 602 (1997) ("Mandating a written fee agreement of some specificity is probably the single most important step a client-friendly document could take to reduce the imbalance between buyer and seller.");
123. John Leubsdorf, Ideals, Realities, and Lawyer Fees, 10 GEO. J. LEGAL ETHICS 619, 621 (1997) ("Professor Gillers is on the mark when he urges that written fee agreements should be required.");
124. Lee A. Watson, Note, Communication, Honesty, and Contract: Three Buzzwords for Maintaining Ethical Hourly Billing, 11 GEO. J. LEGAL ETHICS 189, 200-01 (1998) ("The most practical solution to the problem of unethical billing is communication between attorney and client because it levels the playing field and promotes satisfaction of both parties. ... It is certainly more difficult for an attorney with dishonest urgings to cheat an informed client because the essence of [the] deception lies within [the] ability to withhold information from [the] client. ... A signed contract that reflects the negotiated fee leaves less to chance than a situation in which the client is uninformed.").
125. Cf Gabriel J. Chin & Scott C. Wells, Can a Reasonable Doubt Have an Unreasonable Price? Limitations on Attorneys' Fees in Criminal Cases, 41 B.C. L. REV. 1, 68 (1999) ("One malpractice treatise recommends that attorneys engage in detailed fee discussions with prospective clients and that the agreements be reduced to writing. If shrewd attorneys will have this discussion in order to protect themselves from fee disputes and malpractice claims, there is no reason not to expect ethical attorneys to have this discussion for the benefit of their clients." (footnotes omitted)).
126. See Gillers, supra note 24, at 605-06. Furthermore, the client is likely to face the question of whether to retain a second lawyer in such a dispute. As Professor Gillers observes, If . . . the fee dispute does go to court, the embattled but determined client will have to decide whether to hire a lawyer to defend the claim of her former lawyer. The former lawyer may seek a fee far greater than he was willing to accept "in settlement" without a suit. That heightened sum, giving the lawyer negotiating room, also will have an in terrorem effect on the client. Who knows what the courts will do? Maybe judges, once lawyers, will accept it. These realities make it risky for the former client to forego new counsel in the fee dispute, but then why not save the expense of having another lawyer and add the savings to the "settlement"? The deck is stacked against the former client....
127. Id. at 606;
128. Professor Wolfram has similar concerns about fee disputes: Fee suits can be ugly affairs. . . . The lawyer suing for fees often appears pro se, creating an imbalance of expenditures for legal services that might prove particularly galling to a nonlawyer client. The lawyer's access to the client's deepest confidences, and the realization that these can be spread abroad in the fee suit, may appear treacherously near blackmail. WOLFRAM, supra note 2, at 554. As Professor Wolfram has explained, a client finding herself in a fee dispute has at least three additional concerns: A client dissatisfied with the size of a fee or unhappy at the extent or quality of legal services rendered after paying a fee in advance is faced with unpleasant prospects. The idea of hiring a second lawyer to pursue the first through the courts is unattractive because it simply adds additional fees to the original problem. It might be difficult to find a lawyer willing to litigate against another. And the delays of litigation may put economic pressure on the client to forego any relief.
129. Id. at 556.
130. In an effort to combat some of these concerns, "[c]ourts quite uniformly resolve ambiguities in a fee contract against the lawyer, who has almost invariably drafted it." Id. at 503;
131. see also Wilkins, supra note 1, at 875 n.326 (discussing a proposal to make "lawyers who do not submit written fee agreements bear the burden of proof on all matters in any subsequent dispute with the client"
132. (citing COMM'N ON EVALUATION OF DISCIPLINARY ENFORCEMENT, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES 56 (1991))).
133. Another effort has focused on methods of fee arbitration. See WOLFRAM, supra note 2, at 556-58;
134. see also Leubsdorf, supra note 24, at 622;
135. Moseley, Moody & Vernon, supra note 2, at 940 n.3 (discussing a repealed North Carolina professional responsibility rule "mak[ing] nonbinding fee arbitration, subject to client consent, a prerequisite to suing a client for a fee");
136. Rau, supra note 16, at 2020-21 (reviewing proposals made in 1970 and 1974 by two ABA committees).
137. See GILLERS & SIMON, supra note 7, at 61.
138. See id. at 60-61.
139. Id. at 61.
140. See MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(1)-(6) (2006).
141. See GILLERS & SIMON, supra note 7, at 79-80.
142. MODEL RULES OF PROF'L CONDUCT R. 1.7(b) (Discussion Draft 1980),
143. quoted in GILLERS & SIMON, supra note 7, at 79 (emphasis added);
144. GILLERS & SIMON, supra note 7, at 79
145. (quoting MODEL RULES OF PROF'L CONDUCT (Unofficial Pre-Circulation Draft 1979)) (emphasis added).
146. MODEL RULES OF PROF'L CONDUCT R. 1.6(b) (Revised Final Draft 1982),
147. quoted in GILLERS & SIMON, supra note 7, at 80 (emphasis added);
148. MODEL RULES OF PROF'L CONDUCT R. 1.6(b) (Proposed Final Draft 1981),
149. quoted in GILLERS & SIMON, supra note 7, at 79-80 (emphasis added).
150. MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(1) (2006);
151. MODEL RULES OF PROF'L CONDUCT R. 6.1 (1983), quoted in GILLERS & SIMON, supra note 7, at 80 (emphasis added).
152. See, e.g., MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. [2] (2006) ("A fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation .... This contributes to the trust that is the hallmark of the client-lawyer relationship.");
153. FREEDMAN & SMITH, supra note 2, at 129-58 (providing a detailed description and defense of the significance and extent of the lawyer's duty of confidentiality);
154. Lawrence J. Fox, MDPs Done Gone: The Silver Lining in the Very Black Enron Cloud, 44 ARIZ. L. REV. 547, 551 (2002) (describing client confidentiality as a "core value for a lawyer");
155. Susan P. Koniak, The Law Between the Bar and the State, 70 N.C. L. REV. 1389, 1427-47 (1992) (describing "the centrality and power of the norm of confidentiality in the bar's nomos").
156. MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. [6] (2006).
157. Id.
158. See MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(1) (2006).
159. Cf. David McGowan, Why Not Try the Carrot? A Modest Proposal to Grant Immunity to Lawyers Who Disclose Client Financial Misconduct, 92 CAL. L. REV. 1825, 1828 (2004) (suggesting that because lawyers are reluctant to create costs for themselves, disclosure is unlikely to increase "even in cases where disclosure could stop unlawful conduct or help rectify its consequences").
160. MODEL RULES OF PROF'L CONDUCT R. 1.6 cmt. [15] (2006).
161. See McGowan, supra note 38, at 1829-30.
162. Cf. id. at 1825 (asserting that "the costs disclosure creates for lawyers who blow the whistle" must be addressed if lawyers are to be encouraged to disclose client financial misconduct);
163. id. at 1828 (observing that "[b]ecause disclosure is permissive, lawyers choose whether they will create these other costs," and concluding that lawyers are unlikely to incur such costs);
164. David Rosenthal, The Criminal Defense Attorney, Ethics and Maintaining Client Confidentiality: A Proposal to Amend Rule 1.6 of the Model Rules of Professional Conduct, 6 ST. THOMAS L. REV. 153, 166-68 (1993) (observing that, in addition to the possibility that disclosure may result in discipline, "[f]rom an economic standpoint, a more tangible, often damaging consequence of disclosure exists," particularly for criminal defense attorneys, because "[t]he reputation of criminal defense attorneys travels swiftly through the ranks of criminal defendants and once the attorney is labeled as untrustworthy, that attorney may likely be hard pressed to retain any future clients").
165. See TASK FORCE ON CORPORATE RESPONSIBILITY, AM. BAR ASS'N, REPORT TO THE HOUSE OF DELEGATES (2003),
166. quoted in GILLERS & SIMON, supra note 7, at 81-82.
167. MODEL RULES OF PROF'L CONDUCT R. 1.6(b)(5) (2006).
168. Indeed, in the words of one leading scholar, "[n]o exception to the attorney-client privilege has done as much to draw [the privilege] into question as the exception allowing lawyer self-protection." WOLFRAM, supra note 2, at 308.
169. As others have put it, permitting lawyers to disclose confidences for the purpose of collecting fees "is sanction for blackmail." FREEDMAN & SMITH, supra note 2, at 155. For consideration of possible justifications for these exceptions,
170. see WOLFRAM, supra note 2, at 308-09.
171. In fact, when adopted in 1983, Model Rule 1.6 did not allow disclosure to save the life of the "Innocent Convict." See SIMON, supra note 1, at 4 (giving the example of lawyer Arthur Powell and innocent convict Leo Frank). In such a scenario, the client admits to a lawyer, in confidence, to having committed a capital crime for which an innocent individual has been convicted.
172. See id. Under the original version of the Rule, the lawyer ostensibly was not permitted to reveal this information because such disclosure would not prevent future harmful conduct by the client.
173. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 30-33, 37-42. Not surprisingly, the prohibition against disclosing confidences to save the life of the Innocent Convict engendered harsh, though not universal, criticism.
174. See id. at 38-42 & nn.112-18. The prohibition seemed particularly disconcerting when juxtaposed with the provision permitting disclosure for the lawyer to collect a fee. Professor Cramton and Lori P. Knowles argue that: [A] profession that justifiably asks for and receives permission to disclose confidential client information when its own economic interests are at stake (e.g., to collect a fee from a client) cannot plausibly take the position that the threatened death or serious injury of another does not justify an occasional sacrifice of confidentiality.
175. Roger C. Cramton & Lori P. Knowles, Professional Secrecy and its Exceptions: Spaulding v. Zimmerman Revisited, 83 MINN. L. REV. 63, 111-12 (1998) (footnote omitted). Professor Fischel observes that: The same lawyer who is prohibited from disclosing information learned while representing a client to exonerate someone falsely accused of a capital crime . . . is perfectly free to disclose confidential information when he or she is the one accused, falsely or not. Nor is there any requirement that the lawyer's liberty be at stake, or even that the lawyer be accused of anything criminal. A simple fee dispute with a client is sufficient grounds to disclose confidential information. The lawyer's interest in collecting a fee is apparently a higher priority than exonerating an innocent defendant about to be convicted of a capital crime .... Confidentiality means everything in legal ethics unless lawyers lose money, in which case it means nothing.
176. Daniel Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1, 10 (1998).
177. More general critiques of the rules of confidentiality abound among scholars as well. See, e.g., SIMON, supra note 1, at 56, 222 n.9;
178. WOLFRAM, supra note 2, at 243-47;
179. Simon, supra note 7, at 1453-54, 1468;
180. Fred C. Zacharias, Rethinking Confidentiality, 74 IOWA L. REV. 351, 376-89 (1989) (analyzing the results of empirical studies testing the justifications for strict confidentiality);
181. Fred C. Zacharias, Rethinking Confidentiality II: Is Confidentiality Constitutional?, 75 IOWA L. REV. 601 (1990) [hereinafter Zacharias, Rethinking Confidentiality II] (same).
182. Even a brief survey of ethics regulations over the past few decades reveals many instances in which the organized bar promulgated ethics rules that seemed to promote lawyers' economic self-interests to the detriment of those of the client. For example, the United States Supreme Court has struck down various regulations that appeared designed, at least in part, to protect the economic interests of lawyers. See, e.g., Supreme Court of Va. v. Friedman, 487 U.S. 59, 67-70 (1988) (striking down regulations limiting admission "on motion" to state residents as unconstitutional in violation of the Privileges and Immunities Clause);
183. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 655-56 (1985) (reversing reprimand for using an illustration in advertising materials on First Amendment grounds);
184. Supreme Court of N.H. v. Piper, 470 U.S. 274, 287-88 (1985) (striking down regulations limiting bar admission to state residents as unconstitutional in violation of the Privileges and Immunities Clause);
185. Bates v. State Bar, 433 U.S. 350, 384 (1977) (striking down restrictions on advertising by lawyers of routine services and their availability as violating the First Amendment);
186. Goldfarb v. Va. State Bar, 421 U.S. 773, 791-93 (1975) (striking down mandatory minimum fee schedules as a form of price fixing).Many scholars have criticized the sometimes self-serving nature of lawyer self-regulation.
187. See, e.g., WOLFRAM, supra note 2, at 21 ("Few persons who are not lawyers would judge the . . . history of [bar] regulation to be one in which the public interest has regularly been vindicated.");
188. Green & Zacharias, supra note 5, at 312 ("[T]here is little doubt that ethics codes traditionally have included self-serving propositions."
189. (citing Zacharias, Rethinking Confidentiality II, supra note 44, at 628 nn.138-39, 629-30 nn.144-45));
190. Geoffrey C. Hazard, Jr., Russell G. Pearce & Jeffrey W. Stempel, Why Lawyers Should Be Allowed to Advertise: A Market Analysis of Legal Services, 58 N.Y.U. L. REV. 1084, 1087 (1983) (arguing that "participants in the debate on lawyer advertising have failed to appreciate that legal services are a market commodity");
191. Andrew M. Perlman, Toward a Unified Theory of Professional Regulation, 55 FLA. L. REV. 977, 999 (2003) ("[T]he ABA's structural rules . . . have emphasized self-protection and public image at the expense of more appropriate emphases.... [T]here is ample evidence that ethics codes have, in fact, advanced these goals more clearly than other identifiable objectives.");
192. Deborah L. Rhode, Keynote, Law, Lawyers, and the Pursuit of Justice, 70 FORDHAM L. REV. 1543, 1557 (2002) ("[Regulation of the legal profession has been designed primarily by and for the profession, and too often protects its concerns at the expense of the public.");
193. Schneyer, supra note 2, at 724-33 (criticizing the bar's insistence on designing ethical rules to protect lawyers, its disfavor of regulation by nonlawyer actors and institutions, and its preference for role-based ethics rules);
194. William H. Simon, Who Needs the Bar?: Professionalism Without Monopoly, 30 FLA. ST. U. L. REV. 639, 640 (2003) (elaborating "on the widely felt doubts about monopolistic self-regulation").
195. See STANDING COMM. ON PROF'L DISCIPLINE, AM. BAR ASS'N, SURVEY ON LAWYER DISCIPLINE SYSTEMS 1-8 (2001) (listing the number of complaints brought against lawyers and the types and frequencies of sanctions imposed);
196. WOLFRAM, supra note 2, at 80 ("Recurring impressionistic accounts claim that the state of lawyer discipline demands urgent attention," in part because, "there are ample reasons to believe that discipline is selective, episodic, subject to constraints of fluctuating budgets and personal ability, influenced by political instability, and subject to like influences that grossly distort the extent to which lawyer discipline reflects levels of deviance and compliance among lawyers.");
197. Barton, supra note 2, at 424 & n.47 ("[T]he minimum Rules governing lawyers are, in fact, notoriously underenforced.");
198. Lisa G. Lerman, Lying to Clients, 138 U. PA. L. REV. 659, 747 n.349 (1990) ("The underenforcement of the legal ethics codes is well-documented.");
199. Deborah L. Rhode, The Profession and the Public Interest, 54 STAN. L. REV. 1501, 1512 (2002) ("Disciplinary rules and enforcement processes have not adequately curbed ethical abuses . . . .");
200. Wilkins, supra note 5, at 493 ("[T]he rules of professional conduct . . . tend to be systematically underenforced.");
201. Fred C. Zacharias, What Lawyers Do When Nobody's Watching: Legal Advertising as a Case Study of the Impact of Underenforced Professional Rules, 87 IOWA L. REV. 971, 973 (2002) (exploring "the ramifications of maintaining unenforced or underenforced rules in the professional codes of lawyer responsibility").
202. But see Charles W. Wolfram, Toward a History of the Legalization of American Legal Ethics -I. Origins, 8 U. CHI. L. SCH. ROUNDTABLE 469, 470 (2001) ("While lawyer discipline was once scandalously under enforced and is still criticized by many as lax, there is no doubt that its incidence has increased significantly in the past thirty years." (footnote omitted)).
203. See supra note 6 and accompanying text.
204. See David Luban, Ethics and Malpractice, 12 MISS. C. L. REV. 151, 152 (1991) (making the "routine observation that the codes are drastically underenforced"). Professor Luban observes that, given the current state of underenforcement,if one were to give realistic advice to aspiring lawyers about how to avoid attorney discipline, it would be this: "If you don't steal your clients' money, neglect their affairs, get convicted of a felony, engage in substance abuse, or get caught lying to a court, you have little to fear from the disciplinary system."
205. Id. at 152;
206. see also Zacharias, supra note 2, at 861-62 ("[M]any rules simply go unenforced or are patently underenforced. . . . [O]ne could safely hazard the assertion that few rules truly are enforced in a way that makes lawyers fear discipline for violating them.").
207. See, e.g., Levine, Taking Ethics Codes Seriously, supra note 4, at 544 n.60
208. (citing SOL ROTH, HALAKHA AND POLITICS: THE JEWISH IDEA OF THE STATE 97 (1988);
209. Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & RELIGION 65, 65 (1987);
210. Steven F. Friedell, Aaron Kirschenbaum on Equity in Jewish Law, 1993 BYU L. REV. 909, 913 (book review);
211. Shahar Lifshitz, Distress Exploitation Contracts in the Shadow of No Duty to Rescue, 86 N.C. L. REV. 315, 337-61 (2008);
212. Moshe Silberg, Law and Morals in Jewish Jurisprudence, 75 HARV. L. REV. 306, 313-14 (1961)).
213. See generally Amihai Radzyner, Between Scholar and Jurist: The Controversy Over the Research of Jewish Law Using Comparative Methods at the Early Time of the Field, 23 J.L. & RELIGION 189 (2007-08).
214. See, e.g., 1 ARYEH KAPLAN, THE HANDBOOK OF JEWISH THOUGHT 59-82, 231-60 (1979).
215. See MEIR TAMARI, "WITH ALL YOUR POSSESSIONS": JEWISH ETHICS AND ECONOMIC LIFE 248-61 (1987) (discussing charitable obligations).
216. Id. at 248.
217. See Samuel J. Levine, Looking Beyond the Mercy/Justice Dichotomy: Reflections on the Complementary Roles of Mercy and Justice in Jewish Law and Tradition, 45 J. CATH. LEGAL STUD. 455, 468 n.81 (2006).
218. See JOSEPH B. SOLOVEITCHIK, YEMEI ZICHARON 43-45 (1996)
219. (citing TALMUD BAVLI, Baba Bathra 8b;
220. MAIMONIDES, GUIDE FOR THE PERPLEXED 3:53) (author's translation).
221. See, e.g., KAPLAN, supra note 50, at 78 (stating that the commandments "penetrate every nook and cranny of a person's existence, hallowing even the lowliest acts and elevating them to a service to God. ...[,] sanctify every facet of life, and constantly remind one of [one's] responsibilities toward God" (footnote omitted));
222. see also Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 TEX. TECH L. REV. 1199, 1204 (1996) [hereinafter Levine, Broad Life] (observing that "an individual who views religion as the center of life can incorporate other aspects of life, such as a secular career, to broaden that life," and concomitantly unify all areas of life);
223. Samuel J. Levine, Reflections on the Practice of Law as a Religious Calling, from a Perspective of Jewish Law and Ethics, 32 PEPP. L. REV. 411, 412 (2005) [hereinafter Levine, Reflections] ("[T]he range of halacha, Jewish legal and ethical thought, encompasses all facets of the human experiences, emphasizing the importance of an ethically unified life and demonstrating that every area of life has moral significance.").
224. JOSEPH B. SOLOVEITCHIK, HALAKHIC MAN 94 (Lawrence Kaplan trans., 1983) (originally published in Hebrew as Ish ha-halakhah, in 1 TALPIOT 3-4 (1944)).
225. Id. at 94-95;
226. see also Levine, Broad Life, supra note 55, at 1205 ("[According to Maimonides, through my professional career I could actually serve [God], while Ramchal taught that I could utilize my career as a means towards piety");
227. id. at 1205 nn.21-22
228. (citing MOSES C. LUZZATO, MESILLAT YESHARIM 336-39 (Shraga Silverstein trans., 1966);
229. MAIMONIDES, MISHNETORAH, Laws of De'oth 3:2-3)).
230. See TAMARI, supra note 52, at 47 (citing legal interpretations of the biblical prohibition against placing '"a stumbling block in the path of the blind'" as extending to "the giving of unwise business advice to someone, or the provision, through perfectly legal transactions, of goods that are to the buyer's physical or moral detriment"
231. (quoting Leviticus 19:14)). Indeed, Jewish law requires particular protection of those unable to navigate the legal system,
232. see id. at 48;
233. see also Samuel J. Levine, A Look at American Legal Practice Through a Perspective of Jewish Law, Ethics, and Tradition: A Conceptual Overview, 20 NOTRE DAME J.L. ETHICS & PUB. POL'Y 11, 20-21 & nn.51-52 (2006), in apparent contrast to the client in the American legal system who fails to obtain a written fee agreement from a lawyer and thereby remains at a disadvantage in an ensuing fee dispute.
234. See discussion supra Part I.B.
235. See Levine, Taking Prosecutorial Ethics Seriously, supra note 4, at 1358-69 ("[E]ach conflict poses its own unique challenges, thereby necessitating a correspondingly particularized method of resolution.").
236. See id. at 1359 & n.67
237. (citing TALMUD BAVLI, Yoma 85a-85b;
238. AIMONIDES, MLSHNE TORAH, Laws of Sabbath, 2;
239. 2 ARYEH KAPLAN, THE HANDBOOK OF JEWISH THOUGHT 38-49 (Abraham Sutton ed., 1992);
240. HERSHEL SCHACHTER, B'IKVEI HATZOAN 14-18 (1997);
241. SOLOVEITCHIK, supra note 56, at 34-35);
242. see also Levine, Taking Ethical Discretion Seriously, supra note 4, at 57 n.151 ("[N]early every obligation in Jewish law is suspended to save a life.");
243. Russell G. Pearce, To Save a Jewish Life: Why a Rabbi and a Jewish Lawyer Must Disclose a Client Confidence, 29 LOY. L.A. L. REV. 1771, 1776 (1996) ("To save a life, one may violate all of Jewish law, except idolatry, incest and adultery, and murder.").
244. See MAIMONIDES, supra note 60,2:2-3;
245. SOLOVEITCHIK, supra note 56, at 34.
246. SOLOVEITCHIK, supra note 56, at 34.
247. See discussion supra Part I.A-C.
248. See supra note 49 and accompanying text.
249. See, e.g., David Luban, Calming the Hearse Horse: A Philosophical Research Program for Legal Ethics, 40 MD. L. REV. 451, 472-73 (1991) (citing the argument that "a pro bono duty in effect selectively taxes lawyers to provide a public service" and that "if it is in the public interest to make legal services available to all, the expense should fall on the entire public, not just on the lawyers");
250. Nancy J. Moore, "In the Interests of Justice": Balancing Client Loyalty and the Public Good in the Twenty-First Century, 70 FORDHAM L. REV. 1775, 1786 (2002) (arguing that lawyers "should not be obligated to perform as agents of the state in situations where private citizens have no similar obligation");
251. id. at 1786 n.51 (noting that under American criminal law and tort law, "[p]rivate citizens do not have a legal duty to prevent death or substantial bodily harm, even when it is the result of an intended criminal act");
252. see also David A. Hyman, Rescue Without Law: An Empirical Perspective on the Duty to Rescue, 84 TEX. L. REV. 653, 655 (2006) ("The common law approach to rescue is straightforward. Absent a limited number of specific exceptions, there is no duty to rescue, regardless of the ease of rescue and the consequences of non-rescue.");
253. Saul Levmore, Waiting for Rescue: An Essay on the Evolution and Incentive Structure of the Law of Affirmative Obligations, 72 VA. L. REV. 879, 880 (1986) (noting that "[the American] legal system is seen as one that... rarely deters antisocial omissions, and virtually never rewards rescuers");
254. Ernest J. Weinrib, The Case for a Duty to Rescue, 90 YALE L.J. 247, 247 (1980) (observing that "the courts have uniformly refused to enunciate a general duty to rescue, even in the face of repeated criticisms that the absence of such a duty is callous").
255. See generally Simon, supra note 7 (critiquing a libertarian/formalist vision of legal ethics);
256. William H. Simon, The Belated Decline of Literalism in Professional Responsibility Doctrine: Soft Deception and the Rule of Law, 70 FORDHAM L. REV. 1881 (2002) (critiquing literalism in legal ethics).
257. See Rhode, supra note 45, at 1545-46.
258. See sources cited supra note 3 (listing works criticizing the use of the word professional).
259. See, e.g., RHODE, supra note 1, at 50-57 (arguing that "lawyers need to accept moral responsibility for the consequences of their professional actions" by adhering to "more ethically demanding professional codes and institutionalized practices");
260. SIMON, supra note 1, at 138-39 (discussing a lawyer's responsibility to take actions that "seem likely to promote justice");
261. Rhode, supra note 45, at 1546 (arguing that, unlike other private citizens, "lawyers, as officers of the justice system, have a special obligation to pursue justice").
262. Cf. James E. Fleming, The Lawyer as Citizen, 70 FORDHAM L. REV. 1699, 1715 (2002) ("Lawyers . . . may attribute only partial authorship of their acts to the law themselves . . . .");
263. Koniak, supra note 34, at 1438 (noting "the potential for ethics rules to compete and conflict with other law");
264. Luban, supra note 65, at 473 ("The pro bono duty, rather than constituting a tax on lawyers, can be viewed as a fee which they pay the public in return for special privileges granted to the legal profession.");
265. Simon, supra note 7, at 1456-57 ("AU lawyers are formalists some of the time. . . . Some lawyers, however, are formalists all the time .... [T]hey do not feel constrained by any public interest that is not fully articulated in positive rules. They thus stand ready to exploit 'loopholes' and 'technicalities'....").
266. See discussion supra Part I.A-C.
267. See discussion supra Part I.A-C.
268. See 5 RAMBAN (NACHMANIDES), COMMENTARY ON THE TORAH 87-88 (Charles B. Chavel trans., 1976) (explicating Deuteronomy 6:18);
269. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 543 & n.57.
270. See RAMBAN, supra note 71, at 88;
271. see also Samuel J. Levine, Unenumerated Constitutional Rights and Unenumerated Biblical Obligations: A Preliminary Study in Comparative Hermeneutics, 15 CONST. COMMENT. 511, 516-17 (1998).
272. Leviticus 19:2;
273. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 547;
274. Levine, supra note 72, at 516-17.
275. Deuteronomy 6:18;
276. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 548;
277. Levine, supra note 72, at 520-22.
278. Leviticus 19:18;
279. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 549;
280. Levine, supra note 72, at 525-26.
281. Proverbs 3:6;
282. see also Levine, Reflections, supra note 55, at 4412-13 & nn.3-6;
283. Levine, Taking Prosecutorial Ethics Seriously, supra note 4, at 1340 & n.5.
284. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 46 n.137;
285. Levine, Taking Prosecutorial Ethics Seriously, supra note 4, at 1364-65, 1369-70.
286. See Levine, Taking Ethics Codes Seriously, supra note 4, at 547-48;
287. Levine, supra note 72, at 516-17.
288. See Leviticus 19:2.
289. See Levine, Taking Ethics Codes Seriously, supra note 4, at 547
290. (citing 3 RAMBAN (NACHMANIDES), COMMENTARY ON THE TORAH 282 (Charles B. Chavel trans., 1971));
291. Levine, supra note 72, at 517.
292. See Deuteronomy 6:18;
293. Levine, Taking Ethics Codes Seriously, supra note 4, at 548
294. (citing 5 RAMBAN, supra note 80, at 87-88);
295. Levine, supra note 72, at 520-21.
296. See Levine, Taking Ethics Codes Seriously, supra note 4, at 548
297. (citing 5 RAMBAN, supra note 80, at 87-88);
298. Levine, supra note 72, at 520-21.
299. Leviticus 19:18.
300. See Levine, Taking Ethics Codes Seriously, supra note 4, at 549 (citing sources);
301. Levine, supra note 72, at 525-26.
302. See Levine, Taking Ethics Codes Seriously, supra note 4, at 538 n.48;
303. id. at 540 n.50.
304. Ex parte Secombe, 60 U.S. (19 How.) 9, 14 (1856);
305. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 538-40 & nn.48-49.
306. CANONS OF PROF'L ETHICS Preamble (1908).
307. Id.
308. See In re Holtzman, 577 N.E.2d 30, 33 (N.Y. 1991) (per curiam) ("Broad standards governing professional conduct are permissible and indeed often necessary." (citation omitted));
309. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 540 & n.49.
310. See Levine, Taking Ethics Codes Seriously, supra note 4, at 535-37 & n.46, 550-64.
311. Compare MODEL RULES OF PROF'L CONDUCT (1983),
312. with MODEL CODE OF PROF'L RESPONSIBILITY (1969);
313. see also Levine, Taking Ethics Codes Seriously, supra note 4, at 530-37.
314. See Levine, Taking Ethics Codes Seriously, supra note 4, at 550-68;
315. see also MODEL RULES OF PROF'L CONDUCT (2006).
316. MODEL RULES OF PROF'L CONDUCT R. 8.4(d) (2006);
317. MODEL CODE OF PROF'L RESPONSIBILITY DR 1-102(A)(5) (1983).
318. See Levine, Taking Ethics Codes Seriously, supra note 4, at 558-61.
319. MODEL CODE OF PROF'L RESPONSIBILITY DR 1-102(A)(6) (1983).
320. In re Illuzzi, 632 A.2d 346, 350 (Vt. 1993)
321. (quoting ABA/BNA LAWYER'S MANUAL ON PROFESSIONAL CONDUCT 101:1001 (1987)).
322. See Levine, Taking Ethics Codes Seriously, supra note 4, at 550-58.
323. MODEL CODE OF PROF'L RESPONSIBILITY Canon 9 (1983).
324. See Levine, Taking Ethics Codes Seriously, supra note 4, at 562-72.
325. See discussion supra Part I. For a thoughtful analysis of possible motivations for and implications of the formulation of ethics rules in a discretionary or permissive manner,
326. see Green & Zacharias, supra note 5, passim.
327. See discussion supra Part I.B.
328. See discussion supra Part I.C.
329. See discussion supra note 44.
330. See sources cited supra note 8.
331. See GILLERS & SIMON, supra note 7, at 392 ("No state yet requires lawyers to perform pro bono work, and no state is actively considering such a requirement, but a number of states require lawyers to report their pro bono hours, and other states encourage lawyers to do so.");
332. see also GILLERS, supra note 2, at 169-70.
333. See Levine, Taking Ethics Codes Seriously, supra note 4, at 535-37.
334. See discussion supra Part I.
335. See generally Green & Zacharias, supra note 5.
336. See Green & Zacharias, supra note 5, at 270 & nn.16-22, 276-78 & nn.41-55;
337. Levine, Taking Ethical Discretion Seriously, supra note 4, at 24.
338. See Moshe Sokol, Personal Autonomy and Religious Authority, in RABBINIC AUTHORITY AND PERSONAL AUTONOMY 169, 207 (Moshe Sokol ed., 1992) ("The fact is that most of one's waking hours are spent at work, or with one's family. Certainly these situations call for obedience to appropriate standards of behavior: it is wrong to cheat at work, for example, or hurt a spouse's feelings. Nevertheless, for great stretches of the day each individual must decide for [one's self] how [one] will work, with what commitment, how warm [one] will be toward [one's] children, how much time [one] will spend working for good causes, and so on.");
339. see also Levine, Taking Ethical Discretion Seriously, supra note 4, at 46 n.137
340. (citing YITZCHAK HUTNER, PACHAD YITZCHAK, Pesach 123-26 (6th ed. 1999);
341. RABBENU BACHYA IBN PAQUDA, CHOVOTH HA-LEVAVOTH (4:4);
342. Aharon Lichtenstein, Does Jewish Tradition Recognize an Ethic Independent of Halakha?, in CONTEMPORARY JEWISH ETHICS 102,102-23 (Menachem Marc Kellner ed., 1978);
343. Sokol, supra, at 169-216).
344. See, e.g., sources cited supra note 109.
345. Proverbs 3:6.
346. See supra notes 56-57 and accompanying text.
347. See Levine, Taking Prosecutorial Ethics Seriously, supra note 4, at 1358-69.
348. See HUTNER, supra note 109, at 123-26 (author's translation);
349. see also YITZCHAK HUTNER, PACHAD YITZCHAK, Purim 51-53 (6th ed. 1998) (author's translation).
350. See infra notes 116-18;
351. see also Green & Zacharias, supra note 5, at 280-87;
352. Levine, Taking Ethical Discretion Seriously, supra note 4, at 46;
353. McGowan, supra note 38, at 1825 n.1;
354. Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 GEO. WASH. L. REV. 1,46-47 (2005).
355. MODEL RULES OF PROF'L CONDUCT Scope [14] (2006).
356. Id.
357. See supra note 6.
358. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 49 n.140 (arguing that "with discretion comes the responsibility to exercise professional judgment");
359. see also Green & Zacharias, supra note 5, at 281-82.
360. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 46-52.
361. See, e.g., Green & Zacharias, supra note 5, at 281-87;
362. id. at 285 n.81
363. (citing Mario J. Madden, The Indiscreet Role of Lawyer Discretion in Confidentiality Rules, 14 GEO. J. LEGAL ETHICS 603, 604-05 (2001);
364. Limor Zer-Gutman, Revising the Ethical Rules of Attorney Client Confidentiality: Towards a New Discretionary Rule, 45 LOY. L. REV. 669, 705-06 (1999));
365. Andrew M. Perlman, Untangling Ethics Theory from Attorney Conduct Rules: The Case of Inadvertent Disclosures, 13 GEO. MASON L. REV. 767, 790-91 (2005);
366. Zacharias & Green, supra note 115, at 52-55.
367. Proverbs 3:6;
368. see also Geoffrey C. Hazard, Jr., Law, Ethics and Mystery, 82 U. DET. MERCY L. REV. 509, 514-18 (2005). Such an approach may prove particularly relevant in the context of prosecutorial ethics, given the extent to which prosecutors exercise discretion in ethical decisionmaking.
369. See Levine, Taking Prosecutorial Ethics Seriously, supra note 4, at 1340-41;
370. see also R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to "Seek Justice, " 82 NOTRE DAME L. REV. 635, 653 (2006) (arguing that "a renewed focus on virtue . . . can provide meaningful guidance for conscientious prosecutors striving to do what is right");
371. Bruce A. Green, Why Should Prosecutors "Seek Justice"?, 26 FORDHAM URB. L.J. 607, 616 (1999) (describing the disciplinary rules governing areas where prosecutors have discretion as "incomplete");
372. Bruce A. Green & Fred C. Zacharias, Prosecutorial Neutrality, 2004 WIS. L. REV. 837, 842 ("The fact that prosecutorial decisions are discretionary does not imply that they are, or should be, standardless.");
373. Leslie C. Griffin, The Prudent Prosecutor, 14 GEO. J. LEGAL ETHICS 259, 262 (2001) (arguing that prosecutorial discretion relies on both substantive moral theory and public moral judgment);
374. Ellen S. Podgor, The Ethics and Professionalism of Prosecutors in Discretionary Decisions, 68 FORDHAM L. REV. 1511, 1513-14 (2000) (advocating increased education about the discretionary nature of prosecutors' decisionmaking process);
375. Fred C. Zacharias, Specificity in Professional Responsibility Codes: Theory, Practice, and the Paradigm of Prosecutorial Ethics, 69 NOTRE DAME L. REV. 223, 248 (1993) [hereinafter Zacharias, Specificity in Professional Responsibility Codes] ("[M]ost of the unique ethical dilemmas prosecutors face are governed solely by the ['justice'] requirement.");
376. Fred C. Zacharias, Structuring the Ethics of Prosecutorial Trial Practice: Can Prosecutors Do Justice?, 44 VAND. L. REV. 45, 104 (1991) (examining the shortcomings of a "well-interpreted, reinforced 'do justice' rule").
377. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 59 n.154 (discussing the deliberative model of legal ethics and noting it can be applied to existing ethics rules).
378. Such a framework finds an analogue in the abuse of discretion standard of review applied to certain kinds of discretionary judicial rulings. See id. at 59-63;
379. see also Green & Zacharias, supra note 5, at 282.
380. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 51-55.
381. Cf. Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal Ethics, 80 IOWA L. REV. 901, 949-50 (1995) (discussing the practical effects of viewing law as including something more than positive law).
382. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 46-63;
383. see also Feldman, supra note 6, at 887 ("If one believes that good lawyering practically always demands good ethical deliberation, then it follows that the honorable mode of legal analysis should practically always dominate the technocratic one.");
384. Serena Stier, Legal Ethics: The Integrity Thesis, 52 OHIO ST. L.J. 551, 554 (1991) (outlining the integrity thesis, which makes it possible to "integrate] one's cherished personal values with one's obligations as an attorney");
385. Wendel, supra note 5, at 6 (pointing to the logical necessity of uncovering "the moral principles that are implicated by the practice of lawyering");
386. W. Bradley Wendel, Value Pluralism in Legal Ethics, 78 WASH. U. L.Q. 113, 117 (2000) ("[T]he lawyer seeking to act ethically must take account of different value claims that may not be comparable with one another in an impersonally rational, mathematical, or algorithmic manner.");
387. Zacharias, supra note 5, at 1359 (suggesting that lawyers should be required to discuss certain subjects with clients, so as to aid lawyers in distinguishing partisanship from objective, independent duties).
388. See supra Part II.A.
389. See supra Part II.B.1.
390. See supra Part II.B.2.
391. See Levine, Taking Ethics Codes Seriously, supra note 4, at 535-37 (citing criticisms).
392. See Zacharias, supra note 5, at 1367 (observing that "[a] requirement of introspection, by definition, is difficult to enforce," because "[djiscliplinary authorities cannot know what lawyers 'have thought,'" and that "[u]pon questioning, lawyers can rationalize most conduct after the fact").
393. Cf. Stephen Gillers, More About Us: Another Take on the Abusive Use of Legal Ethics Rules, 11 GEO. J. LEGAL ETHICS 843, 846 (1998) (positing the "near-impossibility of proving the lawyer's 'true' motive").
394. See Levine, Taking Ethical Discretion Seriously, supra note 4, at 59-60 n.154.
395. See generally Levine, Taking Ethics Codes Seriously, supra note 4 (responding to various scholars' objections to broad ethics provisions).
396. See supra notes 46-48 and accompanying text.
397. See supra note 6.
398. See Loder, supra note 2, at 328 (summarizing David Luban's analysis that "even lawyers who believe in the ethical superiority of a certain course of conduct will engage in substandard behavior if they perceive other lawyers will so behave without sanction" and that "[s]ince lawyers suspect the unrealistically stringent rules will go unenforced, they will act not from a rational assessment of the most ethical behavior, but from fear of professional disadvantage"
399. (citing Luban, supra note 65 at 460 n.24, 461));
400. Tanina Rostain, Ethics Lost: Limitations of Current Approaches to Lawyer Regulation, 71 S. CAL. L. REV. 1273, 1307-08 (1998) ("In a rational-actor model of legal ethics, enforcement-the detection of wrongdoing, apprehension of the wrongdoer, and conviction-bears the full weight of ensuring compliance with rules. Even with well-drafted rules and appropriate sanctions, a regulatory regime will founder unless the rules are enforced at a sufficient level to deter wrongful conduct.");
401. Zacharias, supra note 2, at 857 ("[Underlying most professional regulation is the faulty assumption that professional discipline works to deter lawyer misconduct. This premise is inherently questionable. Many aspects of the codes are not seriously enforced, nor can they be. Moreover, so long as the disciplinary process remains secret, lawyers are unlikely to be deterred . . . ." (footnote omitted));
402. Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 721, 772 (2001) ("[W]hen disciplinary agencies fail to enforce the codes altogether, or fail to enforce them against a segment of the bar, they encourage disrespect for the codes' letter and spirit. This disrespect can take numerous forms. At the simplest level, the affected segment of the bar . . . may simply have less inclination to follow the governing code's mandates. More subtly . . . [their] adversaries may feel a need to counteract the . . . misconduct by engaging in misconduct of their own. . . . [T]his in turn will reduce their own respect for the codes and for the disciplinary authorities in other areas." (footnote omitted));
403. Zacharias, supra note 46, at 1006 ("[Substantial underenforcement of the advertising rules breeds disrespect for professional regulation. It seems to tell lawyers that the rules do not mean what they say. In the long run, this may encourage lawyers to violate or bend other professional rules." (footnote omitted)).
404. See TALMUD BAVLI, Sanhedrin 29a.
405. Genesis 2:17.
406. Id. at 3:3.
407. See 2 ELIYAHU DESSLER, MICHTAV M'ELYAHU 142 (Aryeh Carmell & Chaim Friedlander eds., 1995) (author's translation);
408. 1 HARAV BORUCH HALEVI EPSTEIN, THE ESSENTIAL TORAH TEMIMAH 21 (Shraga Silverstein trans., 1989) (explicating Genesis 3:3).
409. See TALMUD BAVLI, Sanhedrin 29a, Commentary of Rashi.
410. See id.
411. See id.;
412. RASHI, COMMENTARY ON THE TORAH (explicating Genesis 3:4),
413. reprinted in 1 THE METSUDAH CHUMASH/ RASHI 31 (Avrohom Davis trans., 4th ed. 1996).
414. See Genesis 3:6-24;
415. see also Samuel J. Levine, The End of Innocence, HAMEVASER, Dec. 1989, at 8, 8, 10 (exploring rabbinical insights into the nature of the Tree of Knowledge).
416. See TALMUD BAVLI, Sanhedrin 29a;
417. see also RASHI, supra note 142, at 31 (explicating Genesis 3:3).
418. See CHAIM SHMULEVITZ, SICHOTH MUSSAR 126-28 (1980) (author's translation).
419. See supra note 135.
420. For discussions of various functions of ethics codes, see Gaetke, supra note 3, at 737-41;
421. Rostain, supra note 135, at 1339 & n.282;
422. Zacharias, supra note 135, at 771-72;
423. Zacharias, Specificity in Professional Responsibility Codes, supra note 122, at 225-39;
424. Zacharias, supra note 46, at 1003-04.
425. See supra note 135;
426. see also Rostain, supra note 135, at 1303-19.
427. For example, as Professor Gaetke recently observed: An interesting study of why people obey the law .... criticizes common instrumental views of compliance, which posit that peoples' behavior is "motivated by self-interest" and which lead to a preoccupation with "manipulation of behavior through the control of punishments and incentives." It sees such views as inadequate to explain what really determines citizens' desire to comply with the law. Instead, the study found that people focus on "normative issues," such as "the legitimacy of legal authorities and the morality of the law." The author of the study concludes that "[p]eople are more responsive to normative judgments and appeals than is typically recognized by legal authorities. Their responsiveness leads people to evaluate laws ... in normative terms, obeying the law if it is legitimate and moral." If this is true for citizens in general, there is reason to believe or at least hope that the same conclusion could be reached about lawyers and the rules that govern them. What the ... study suggests ... is that lawyers will be more likely to obey new rules regarding professional behavior if the rules reflect values that are moral in their content and are legitimate in the sense that they are supported by a consensus within the bar. Gaetke, supra note 3, at 729-30
428. (quoting TOM R. TYLER, WHY PEOPLE OBEY THE LAW 165-68, 178 (1990)) (footnotes omitted) (second and third alterations in original). Furthermore, Professor Rostain argues that: While rules are undoubtedly important, the focus of legal ethics cannot be limited to debates about their content or the schemes through which they are enforced. For regulation to be effective, it needs to be undergirded by widespread commitments among lawyers to the values reflected in the regulatory enterprise. A central concern of legal ethics scholarship must be to investigate, articulate, and shore-up such collective commitments in the context of law practice.
429. Rostain, supra note 135, at 1340.
430. Cf. Susan P. Koniak, Through the Looking Glass of Ethics and the Wrongs with Rights We Find There, 9 GEO. J. LEGAL ETHICS 1, 28-29 (1995) ("Unlike tax law, tort law or other sources of legal obligation in our normative world, ethics is not merely a source of obligation but the place where obligation is understood as dignifying and ennobling. ... In legal and judicial ethics we find the possibility of dignifying obligations that are enforceable as law.");
431. Thomas D. Morgan & Robert W. Tuttle, Legal Representation in a Pluralist Society, 63 GEO. WASH. L. REV. 984, 1004-05 (1995) ("The lawyer's moral duty to obey the law rests primarily on the concept of consent... . The obligation binds because it is self-imposed, self-chosen. . . . Lawyers do stand in a moral relationship with the legal system and do possess duties of fidelity to that system.");
432. Simon, supra note 45, at 652-58 (proposing "competitive ethical regimes" to supplement the "low-commitment ethics of the ABA rules"). Building on Professor Robert Cover's work, Professor Koniak has demonstrated that the bar's nomos includes a commitment to both legal precepts and narratives.
433. See Koniak, supra note 34, at 90 n.l
434. (citing Robert M. Cover, Bringing the Messiah Through Law: A Case Study, in NOMOS XXX: RELIGION, MORALITY AND THE LAW: 201 (J. Ronald Pennock & John W. Chapman eds., 1988);
435. Robert M. Cover, The Supreme Court, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L. REV. 4 (1983);
436. Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601 (1986));
437. id. at 1391-92 (arguing that despite the legal profession's unique dependence on the state, the profession maintains its own normative world that may coexist or compete with the state's). For examples of scholarship exploring narrative traditions of lawyers,
438. see Levine, Taking Ethics Codes Seriously, supra note 4, at 553 n.108;
439. see also Samuel J. Levine, Halacha and Aggada: Translating Robert Cover's Nomos and Narrative, 1998 UTAH L. REV. 465.
440. See supra note 149;
441. see also Cassidy, supra note 122, at 692-93 ("Professional norms are hollow without reference to the moral aspirations and sensitivities of individual actors working within their framework. . . . Virtue cannot be taught in law school .... It also cannot be commanded by rules. . .. The advantage of virtue theory is that it provides a noncynical response to this failure of codification.");
442. id. at 693 (responding to criticism on the generality of virtue theory by suggesting that "a renewed focus on the virtues might promote a culture of thoughtful decisionmaking in the prosecutorial community, thus providing individual prosecutors with the intestinal fortitude necessary to resist both institutional pressures and the unscrupulous direction of other actors within the system");
443. Rostain, supra note 135, at 1338 (analyzing "the role of collective professional norms in forming individual commitments" in view of "the importance of participating in shared practices that foster normative commitments to collective values embodied in law and the legal framework," as opposed to undue focus on individual discretion).
444. See SOLOVEITCHIK, supra note 54, at 48-50 (author's translation). Indeed, Jewish history repeatedly offers moving testimony to the power of such commitment, even when religious adherence has carried its own risk of punishment and persecution.
445. For descriptions of Rabbi Levi Yitzchak of Berditchev's life and teachings, see ARYEH KAPLAN, THE CHASIDIC MASTERS AND THEIR TEACHINGS 69-85 (rev. 2d ed. 1989);
446. ARYEH KAPLAN, THE LIGHT BEYOND 16-18 (1981);
447. ELIE WIESEL, SOULS ON FIRE 89-112 (Marion Wiesel trans., 1972).
448. See Exodus 12:19.
449. See id.
450. ARYEH KAPLAN, ENCOUNTERS 100-01 (1990).