Hosam Hawamdeh
02-06-2010, 05:16 AM
DEBORAH L. RHODE
Edited by
OXFORD
UNIVERSITY PRESS
2000
=========================
Preface
Lawyers' ethics have been condemned for centuries, but only in the last few decades
have they been the subject of significant education and research. Ethics in Practice
brings together leaders of this emerging field to explore longstanding problems
of professonalism. Those problems are a matter of public as well as professional con-
cern. Attorneys play a central role in the structure of legal, economic, and politi-
cal institutions. The principles that guide professional practice have crucial social
consequences.
Those principles are the subject of the essays that follow. The contributors to
this volume bring diverse perspectives but share common concerns. They come from
different disciplinary backgrounds and draw on varied frameworks in addition to
law, including philosophy, psychology, economics, sociology, history, political sci-
ence, management, and organizational behavior. Yet these authors also are united in
their conviction that lawyers have public obligations that have not been adequately
institutionalized in practice. Despite a growing cottage industry of commissions,
conferences, and committees on professionalism, many dilemmas of professional re-
sponsibility remain unsolved. This collection provides a better understanding of
what stands in the way. In the process, it identifies strategies that may narrow the gap
between the ideals and institutions of legal practice.
To that end, the volume begins with an overview of the central ethical chal-
lenges facing the profession. "Ethics in Practice" explores the complex relationships
between incentives, institutions, and ideologies that give rise to problems of pro-
fessionalism. Its focus includes the economic and organizational structures of prac-
tice, the constraints of an adversarial system, the social context of workplace in-
equalities, and the limitations of ethical rules and enforcement strategies. Unless
the bar becomes more willing to address the underlying forces that erode profes
sional values, a sharp disjuncture will persist between lawyers' rhetorical commit-
ments and daily practices.
The essays in Part I take up that challenge. Anthony Kronman identifies the core
features of "The Law as a Profession" and the social responsibilities that they imply.
His basic premise is that lawyers play a central role as stewards of our private affairs
and public institutions. That role imposes a "duty to the common good and integrity
of the [legal] system." Law is "a generalist's craft that engages the whole personality of
the practitioner" and links him to a tradition of crucial cultural importance. Law as a
"public calling" supplies a counterweight to private concerns, and lawyers serve as es-
sential mediators between individual interests and social values.
Robert Gordon makes a similar claim in explaining "Why Lawyers Can't Just Be
Hired Guns." Although the bar has "fallen out of the habit" of discussing its social re-
sponsibilities except on ceremonial occasions, those responsibilities need to be cen-
tral constituents of daily practice. The legal system is a common good that cannot
survive if participants pursue purely self-regarding objectives. Law presents ample
opportunities for delay, deception, and harassment. Neither the justice system, nor
the democratic market structures that it sustains, can function effectively in the face
of unrestrained self-interest. As trustees of that system, attorneys have obligations to
maintain the procedural frameworks and cultural values on which the rule of law de-
pends. Adherence to basic principles such as honesty, fairness, and good faith is nec-
essary to preserve a structure that serves the long-term interest of both lawyers and
clients. Professionalism needs to be seen not simply as a ceremonial ideal but as a
practical necessity in legal culture.
Part II explores the role of ethical theory and ethical rules in fostering that sense
of professionalism. Lynn Sharp Paine, drawing on her background both in law and
business ethics, makes the case for "Moral Thinking in Management." Like Gordon
and Kronman, she sees social responsibility as an essential capacity in legal counsel-
ing. To achieve sustained profitability over time, businesses must pursue profits in
ways that are morally acceptable. Corporate managers need advisers who engage in
"principled consequentialist" analysis--who evaluate options within a "framework
of general principles to advance the well-being of corporate stakeholders."
By contrast, Geoffrey Hazard questions the effectiveness of such frameworks in
resolving concrete ethical dilemmas. Although he does not disagree with the appro-
priateness of moral analysis or with approaches like the one Paine proposes, he is
skeptical about the capacity of abstract principles to illumine the "limits of justifiable
conduct or the meaning of justification." In the practice of law, "viewed unromanti-
cally," virtues of autonomy, truth, and impartiality cannot be fully realized. To make
appropriate tradeoffs in particular circumstances requires situational judgments.
Moral philosophy has its limits in identifying the bounds of partisanship or coping
with inequalities in the distribution of legal services.
David Luban essay on "Wrongful Obedience" points up further limitations of
ethical theory in guiding ethical conduct. Luban takes as his starting point Stanley
Milgrams' famous obedience studies. Almost all of Milgram's subjects complied with
instructions to deliver what they believed were painful electrical shocks, although al-
most no survey participants expected that they personally would do so, or believed
that compliance would be morally acceptable. Luban attributes this result to a "cor-
ruption of judgment." Subjects initially agreed to deliver what seemed to be painless
shocks and were directed to escalate in degrees. Rather than admit that their prior
compliance was morally problematic, most individuals continued to follow instruc-
tions as the voltage edged into the danger zone. Luban suggests that a similar dy-
namic may explain certain common pathologies of legal practice. For example, when
lawyers yield to pressure from colleagues or clients to engage in abusive discovery
tactics, they often develop rationalizations that distort their assessments of what
constitutes abuse. Evasion, obfuscation, and delay are condemned in principle but
normalized in practice. There are no simple correctives, but promising options in-
clude reducing situational pressures and increasing lawyers' understanding of the
processes likely to skew judgment.
The essays in Part III suggest further explanations and stategies for the patholo-
gies of practice. Carrie Menkel-Meadow survey of the "The Limits of Adversarial
Ethics" identifies chronic problems that arise in competitive, combative approaches
to dispute resolution. Self-interested presentations by partisan advocates with un-
equal information and resources can distort outcomes. For some controversies, the
adversary system's reliance on oppositional frameworks and win/lose outcomes may
produce less effective resolutions than problem-solving approaches that incorporate
more party participation and remedial flexibility. Our legal needs would be better
served by greater choice among "appropriate dispute resolution procedures:" If
lawyers saw their role "less as zealously representing clients' interests and more as
solving clients'--as well as society's--problems," then changes in legal ethics would
also be necessary and desirable. Attorneys should have obligations to inform clients
about all possible methods of meeting their legal needs. In the course of representa-
tion, attorneys should not conceal relevant facts, deceive third parties, or participate
in outcomes that they have reason to know would cause substantial injustice. In es-
sance, lawyers "should do no harm" and should "treat all parties to a legal matter as
they would wish to be treated themselves."
Such rules of conduct would help address the problems that Austin Sarat identi-
fies in "Ethics in Litigation." However, his analysis also reveals the barriers to obtain-
ing and enforcing more ethically demanding norms. The economic structures of
practice reward adversarial excesses. Many clients want a "take no prisoners" ap-
proach and law firms' hourly billing systems make it profitable to satisfy those de-
sires. Although surveyed lawyers and judges are critical of the incivility, deception,
and delay that often accompany litigation practice, they tend to put blame anywhere
and everywhere else. Judges fault lawyers who see discovery as a cash cow and profes-
sionalism as symbolic window dressing. Lawyers fault judges who see little to gain
from sanctioning attorney misconduct. In-house counsel condemn firms for maxi-
mizing fees, not results. Defense lawyers blame plaintiffs' lawyers for bringing frivo-
lous claims, and plaintiffs' lawyers blame defense lawyers for withholding evidence
and waging wars of attrition. All too often, ethical problems are treated as "someone
else's problems," and those with greatest power in the profession see themselves as
powerless to develop solutions. Given such attitudes, Sarat does not underestimate
the obstacles to reform, but he does propose some promising directions for it to take.
The judicial system should provide more resources and support for monitoring dis-
covery abuse. Sanctions for misconduct should be more frequent and severe, and
should target law firms as well as individual practitioners. Firms should make ethical
behavior a priority in training, mentoring, and evaluation. In effect, the bar needs
structural incentives that are more consistent with professional aspirations.
While many adversarial pathologies involve overly zealous representation of
client interests, other ethical problems arise from underrepresentation of those inter-
ests or difficulties in identifying what those interests are. Part IV addresses these is-
sues. William Simon essay on "Lawyer Advice and Client Autonomy" explores the
inadequacy of conventional ethical norms in dealing with these concerns. The tradi-
tional assumption has been that attorneys' central responsibility is to pursue clients'
objectives zealously within the bounds of the law. But "any plausible conception of
good practice requires lawyers to make judgments about the client's interests and to
influence clients to accept those judgments." The point is not that lawyers should act
paternalistically, by substituting their conception of the client's well-being for that of
the client. Rather, the point is that in most legal representation, autonomous client
decision making is impossible. Attorneys inevitably will exert influence through their
selection, presentation, and evaluation of information. Drawing on one of his own
cases from practice, Simon demonstrates how two attorneys' contrasting descrip-
tions of the same plea bargain dramatically shifted a client's preferences. The as-
sumption that lawyers should simply respect autonomous client choices has per-
sisted less because it is an accurate description of the counseling relatonship than
because it absolves lawyers of awkward responsibilities. If clients can independently
judge their own interests, then attorneys are relieved of that burden. This is especially
convenient in contexts like criminal defense, legal services, or public interest repre-
sentation, where lawyers are underfunded and overextended and clients cannot af-
ford to educate counsel fully about their goals and values. Yet if, as Simon suggests,
totally autonomous decisions are impossible, then lawyers cannot escape the ethical
responsibilities of "connection." They have an obligation to learn enough about their
clients to provide assistance that serves those individuals' interests in fact as well as
form.
Susan Koniak and George Cohen advocate similar responsibilities when the
client is an entity. "In Hell There Will Be Lawyers Without Client or Law" chronicles
the ethical problems that arise in class action representation. For such contexts, nei-
ther procedural rules nor bar disciplinary requirements impose sufficient obliga-
tions. In theory, lawyers must "adequately represent" the class. In practice, no con-
stituency often has sufficient incentives to police that requirement. Opponents use
issues of class representation strategically, or collusively, to extract concessions in set-
tlement negotiations, not to prevent overreaching by opposing counsel. Individual
class members generally lack enough information or stake in the outcome to second
guess their attorney's performance. Overburdened trial judges are reluctant to raise
problems that will prolong not resolve the controversy. The resulting lack of over-
sight creates obvious risks of abuse, given the common misalignment of lawyers' and
clients' interests. Outside public interest contexts, class counsel generally are most
concerned with maximizing fees; class members typically are most concerned with
maximizing recoveries. The problems are compounded when different subgroups of
the class have competing interests and lawyers can trade some members' remedial
opportunities in exchange for generous fees. Here again, effective responses will re-
quire structural reforms. More concrete obligations to class members need to be es-
tablished and enforced. The central challenge, however, lies in finding some con-
stituency with sufficient influence and incentives to institutionalize such reforms.
Part V of the volume addresses lawyers' personal identities and professional val-
ues, and the obligations that they impose in practice. In "Beyond 'Bleached Out' Pro-
fessionalism," David Wilkins explores the role that race, gender, and ethnicity should
play in lawyers' choices about clients to represent or strategies to pursue. For exam-
ple, should a black lawyer defend a Grand Dragon of the Ku Klux Klan if the First
Amendment rights at issue are important to civil rights organizations? Should
lawyers ever consider race in assigning lawyers to particular cases, or in deciding
where to hold a trial? Is it legally permissible or ethically appropriate for a female at-
torney to accept only female clients in divorce cases? Wilkins's answer is that the le-
gitimacy of invoking race or gender depends on the context. The legal system has a
strong stake in affirming equal rights before the law. And in some circumstances,
such as selection of clients, no countervailing concerns are sufficient to justify dis-
crimination based solely on race, gender, or similar characteristics. But in other set-
tings, ignoring racial and gender differences will simply perpetuate them. Prosecut-
ing racially freighted cases in counties likely to produce an all-white jury would not,
in Wilkins's view, enhance either the fact or appearance of justice. Group treatment
is a pervasive feature of America's social and legal landscape, and neutrality in formal
principles will not necessarily correct for biases in cultural practices. Identity matters
in law as in life, and lawyers have a professional responsibility to consider both the
short- and long-term consequences of race and gender consciousness in particular
factual contexts.
Lawyers as a group have similar responsibilities. In "Contested Identities: The
Bias Task Forces and the Obligations of the legal Profession," Deborah Hensler and
Judith Resnik trace the bar's efforts to live up to that responsibility. Almost sixty state
and federal courts have commissioned reports on gender and/or racial bias. Like
other initiatives that involve identity politics, their results have been condemned as
too radical and not radical enough. Critics from the right have dismissed findings of
bias as insignificant or unrepresentative, while critics from the left have objected to
the "sugar coated" tone in which serious problems have been presented. Navigating
these political minefields has been no small challenge. As Hensler and Resnik note,
the task-force movement has made a major contribution to social justice by making
bias visible and placing it on the professional agenda. But the greatest challenge re-
mains: building the support necessary for effective reforms.
My own final essay in the collection explores a similar challenge in institutional-
izing other professional values. "Cultures of Commitment: Pro Bono for Lawyers
and Law Students" describes the gap between the rhetoric and reality of the bar's in-
volvement in public service. Although ethical codes present pro bono assistance to
underrepresented groups as a professional obligation, a majority of lawyers provide
no such aid, and the average for the profession as a whole is under a half an hour a
week. So too, despite accreditation requirements that law schools offer opportunities
and encouragement for pro bono activities, most students graduate without pro
bono experience. The bar's failure to secure broader participation in public service is
all the more disappointing when measured against the extraordinary successes that
such work has yeilded. Many of the nation's landmark public interest cases have
grown out of lawyers' voluntary contributions, and such work has given purpose and
meaning to lawyers' professional lives. Drawing on a broad array of interdisciplinary
research, this final essay explores strategies that could foster broader cultures of com-
mitment to public service within legal education and the legal profession.
This collection offers no easy answers to the core ethical dilemmas of legal
practice. But the contributions taken as a whole identify the crucial questions and
the most promising responses. Of all the responsibilities of professionals, none is
more important than continuing scrutiny of what those responsibilities require in
practice.
to continue reading click here (http://www.questia.com/read/79107185?title=Ethics%20in%20Practice%3a%20Lawyers %27%20Roles%2c%20Responsibilities%2c%20and%20Regul ation)
Edited by
OXFORD
UNIVERSITY PRESS
2000
=========================
Preface
Lawyers' ethics have been condemned for centuries, but only in the last few decades
have they been the subject of significant education and research. Ethics in Practice
brings together leaders of this emerging field to explore longstanding problems
of professonalism. Those problems are a matter of public as well as professional con-
cern. Attorneys play a central role in the structure of legal, economic, and politi-
cal institutions. The principles that guide professional practice have crucial social
consequences.
Those principles are the subject of the essays that follow. The contributors to
this volume bring diverse perspectives but share common concerns. They come from
different disciplinary backgrounds and draw on varied frameworks in addition to
law, including philosophy, psychology, economics, sociology, history, political sci-
ence, management, and organizational behavior. Yet these authors also are united in
their conviction that lawyers have public obligations that have not been adequately
institutionalized in practice. Despite a growing cottage industry of commissions,
conferences, and committees on professionalism, many dilemmas of professional re-
sponsibility remain unsolved. This collection provides a better understanding of
what stands in the way. In the process, it identifies strategies that may narrow the gap
between the ideals and institutions of legal practice.
To that end, the volume begins with an overview of the central ethical chal-
lenges facing the profession. "Ethics in Practice" explores the complex relationships
between incentives, institutions, and ideologies that give rise to problems of pro-
fessionalism. Its focus includes the economic and organizational structures of prac-
tice, the constraints of an adversarial system, the social context of workplace in-
equalities, and the limitations of ethical rules and enforcement strategies. Unless
the bar becomes more willing to address the underlying forces that erode profes
sional values, a sharp disjuncture will persist between lawyers' rhetorical commit-
ments and daily practices.
The essays in Part I take up that challenge. Anthony Kronman identifies the core
features of "The Law as a Profession" and the social responsibilities that they imply.
His basic premise is that lawyers play a central role as stewards of our private affairs
and public institutions. That role imposes a "duty to the common good and integrity
of the [legal] system." Law is "a generalist's craft that engages the whole personality of
the practitioner" and links him to a tradition of crucial cultural importance. Law as a
"public calling" supplies a counterweight to private concerns, and lawyers serve as es-
sential mediators between individual interests and social values.
Robert Gordon makes a similar claim in explaining "Why Lawyers Can't Just Be
Hired Guns." Although the bar has "fallen out of the habit" of discussing its social re-
sponsibilities except on ceremonial occasions, those responsibilities need to be cen-
tral constituents of daily practice. The legal system is a common good that cannot
survive if participants pursue purely self-regarding objectives. Law presents ample
opportunities for delay, deception, and harassment. Neither the justice system, nor
the democratic market structures that it sustains, can function effectively in the face
of unrestrained self-interest. As trustees of that system, attorneys have obligations to
maintain the procedural frameworks and cultural values on which the rule of law de-
pends. Adherence to basic principles such as honesty, fairness, and good faith is nec-
essary to preserve a structure that serves the long-term interest of both lawyers and
clients. Professionalism needs to be seen not simply as a ceremonial ideal but as a
practical necessity in legal culture.
Part II explores the role of ethical theory and ethical rules in fostering that sense
of professionalism. Lynn Sharp Paine, drawing on her background both in law and
business ethics, makes the case for "Moral Thinking in Management." Like Gordon
and Kronman, she sees social responsibility as an essential capacity in legal counsel-
ing. To achieve sustained profitability over time, businesses must pursue profits in
ways that are morally acceptable. Corporate managers need advisers who engage in
"principled consequentialist" analysis--who evaluate options within a "framework
of general principles to advance the well-being of corporate stakeholders."
By contrast, Geoffrey Hazard questions the effectiveness of such frameworks in
resolving concrete ethical dilemmas. Although he does not disagree with the appro-
priateness of moral analysis or with approaches like the one Paine proposes, he is
skeptical about the capacity of abstract principles to illumine the "limits of justifiable
conduct or the meaning of justification." In the practice of law, "viewed unromanti-
cally," virtues of autonomy, truth, and impartiality cannot be fully realized. To make
appropriate tradeoffs in particular circumstances requires situational judgments.
Moral philosophy has its limits in identifying the bounds of partisanship or coping
with inequalities in the distribution of legal services.
David Luban essay on "Wrongful Obedience" points up further limitations of
ethical theory in guiding ethical conduct. Luban takes as his starting point Stanley
Milgrams' famous obedience studies. Almost all of Milgram's subjects complied with
instructions to deliver what they believed were painful electrical shocks, although al-
most no survey participants expected that they personally would do so, or believed
that compliance would be morally acceptable. Luban attributes this result to a "cor-
ruption of judgment." Subjects initially agreed to deliver what seemed to be painless
shocks and were directed to escalate in degrees. Rather than admit that their prior
compliance was morally problematic, most individuals continued to follow instruc-
tions as the voltage edged into the danger zone. Luban suggests that a similar dy-
namic may explain certain common pathologies of legal practice. For example, when
lawyers yield to pressure from colleagues or clients to engage in abusive discovery
tactics, they often develop rationalizations that distort their assessments of what
constitutes abuse. Evasion, obfuscation, and delay are condemned in principle but
normalized in practice. There are no simple correctives, but promising options in-
clude reducing situational pressures and increasing lawyers' understanding of the
processes likely to skew judgment.
The essays in Part III suggest further explanations and stategies for the patholo-
gies of practice. Carrie Menkel-Meadow survey of the "The Limits of Adversarial
Ethics" identifies chronic problems that arise in competitive, combative approaches
to dispute resolution. Self-interested presentations by partisan advocates with un-
equal information and resources can distort outcomes. For some controversies, the
adversary system's reliance on oppositional frameworks and win/lose outcomes may
produce less effective resolutions than problem-solving approaches that incorporate
more party participation and remedial flexibility. Our legal needs would be better
served by greater choice among "appropriate dispute resolution procedures:" If
lawyers saw their role "less as zealously representing clients' interests and more as
solving clients'--as well as society's--problems," then changes in legal ethics would
also be necessary and desirable. Attorneys should have obligations to inform clients
about all possible methods of meeting their legal needs. In the course of representa-
tion, attorneys should not conceal relevant facts, deceive third parties, or participate
in outcomes that they have reason to know would cause substantial injustice. In es-
sance, lawyers "should do no harm" and should "treat all parties to a legal matter as
they would wish to be treated themselves."
Such rules of conduct would help address the problems that Austin Sarat identi-
fies in "Ethics in Litigation." However, his analysis also reveals the barriers to obtain-
ing and enforcing more ethically demanding norms. The economic structures of
practice reward adversarial excesses. Many clients want a "take no prisoners" ap-
proach and law firms' hourly billing systems make it profitable to satisfy those de-
sires. Although surveyed lawyers and judges are critical of the incivility, deception,
and delay that often accompany litigation practice, they tend to put blame anywhere
and everywhere else. Judges fault lawyers who see discovery as a cash cow and profes-
sionalism as symbolic window dressing. Lawyers fault judges who see little to gain
from sanctioning attorney misconduct. In-house counsel condemn firms for maxi-
mizing fees, not results. Defense lawyers blame plaintiffs' lawyers for bringing frivo-
lous claims, and plaintiffs' lawyers blame defense lawyers for withholding evidence
and waging wars of attrition. All too often, ethical problems are treated as "someone
else's problems," and those with greatest power in the profession see themselves as
powerless to develop solutions. Given such attitudes, Sarat does not underestimate
the obstacles to reform, but he does propose some promising directions for it to take.
The judicial system should provide more resources and support for monitoring dis-
covery abuse. Sanctions for misconduct should be more frequent and severe, and
should target law firms as well as individual practitioners. Firms should make ethical
behavior a priority in training, mentoring, and evaluation. In effect, the bar needs
structural incentives that are more consistent with professional aspirations.
While many adversarial pathologies involve overly zealous representation of
client interests, other ethical problems arise from underrepresentation of those inter-
ests or difficulties in identifying what those interests are. Part IV addresses these is-
sues. William Simon essay on "Lawyer Advice and Client Autonomy" explores the
inadequacy of conventional ethical norms in dealing with these concerns. The tradi-
tional assumption has been that attorneys' central responsibility is to pursue clients'
objectives zealously within the bounds of the law. But "any plausible conception of
good practice requires lawyers to make judgments about the client's interests and to
influence clients to accept those judgments." The point is not that lawyers should act
paternalistically, by substituting their conception of the client's well-being for that of
the client. Rather, the point is that in most legal representation, autonomous client
decision making is impossible. Attorneys inevitably will exert influence through their
selection, presentation, and evaluation of information. Drawing on one of his own
cases from practice, Simon demonstrates how two attorneys' contrasting descrip-
tions of the same plea bargain dramatically shifted a client's preferences. The as-
sumption that lawyers should simply respect autonomous client choices has per-
sisted less because it is an accurate description of the counseling relatonship than
because it absolves lawyers of awkward responsibilities. If clients can independently
judge their own interests, then attorneys are relieved of that burden. This is especially
convenient in contexts like criminal defense, legal services, or public interest repre-
sentation, where lawyers are underfunded and overextended and clients cannot af-
ford to educate counsel fully about their goals and values. Yet if, as Simon suggests,
totally autonomous decisions are impossible, then lawyers cannot escape the ethical
responsibilities of "connection." They have an obligation to learn enough about their
clients to provide assistance that serves those individuals' interests in fact as well as
form.
Susan Koniak and George Cohen advocate similar responsibilities when the
client is an entity. "In Hell There Will Be Lawyers Without Client or Law" chronicles
the ethical problems that arise in class action representation. For such contexts, nei-
ther procedural rules nor bar disciplinary requirements impose sufficient obliga-
tions. In theory, lawyers must "adequately represent" the class. In practice, no con-
stituency often has sufficient incentives to police that requirement. Opponents use
issues of class representation strategically, or collusively, to extract concessions in set-
tlement negotiations, not to prevent overreaching by opposing counsel. Individual
class members generally lack enough information or stake in the outcome to second
guess their attorney's performance. Overburdened trial judges are reluctant to raise
problems that will prolong not resolve the controversy. The resulting lack of over-
sight creates obvious risks of abuse, given the common misalignment of lawyers' and
clients' interests. Outside public interest contexts, class counsel generally are most
concerned with maximizing fees; class members typically are most concerned with
maximizing recoveries. The problems are compounded when different subgroups of
the class have competing interests and lawyers can trade some members' remedial
opportunities in exchange for generous fees. Here again, effective responses will re-
quire structural reforms. More concrete obligations to class members need to be es-
tablished and enforced. The central challenge, however, lies in finding some con-
stituency with sufficient influence and incentives to institutionalize such reforms.
Part V of the volume addresses lawyers' personal identities and professional val-
ues, and the obligations that they impose in practice. In "Beyond 'Bleached Out' Pro-
fessionalism," David Wilkins explores the role that race, gender, and ethnicity should
play in lawyers' choices about clients to represent or strategies to pursue. For exam-
ple, should a black lawyer defend a Grand Dragon of the Ku Klux Klan if the First
Amendment rights at issue are important to civil rights organizations? Should
lawyers ever consider race in assigning lawyers to particular cases, or in deciding
where to hold a trial? Is it legally permissible or ethically appropriate for a female at-
torney to accept only female clients in divorce cases? Wilkins's answer is that the le-
gitimacy of invoking race or gender depends on the context. The legal system has a
strong stake in affirming equal rights before the law. And in some circumstances,
such as selection of clients, no countervailing concerns are sufficient to justify dis-
crimination based solely on race, gender, or similar characteristics. But in other set-
tings, ignoring racial and gender differences will simply perpetuate them. Prosecut-
ing racially freighted cases in counties likely to produce an all-white jury would not,
in Wilkins's view, enhance either the fact or appearance of justice. Group treatment
is a pervasive feature of America's social and legal landscape, and neutrality in formal
principles will not necessarily correct for biases in cultural practices. Identity matters
in law as in life, and lawyers have a professional responsibility to consider both the
short- and long-term consequences of race and gender consciousness in particular
factual contexts.
Lawyers as a group have similar responsibilities. In "Contested Identities: The
Bias Task Forces and the Obligations of the legal Profession," Deborah Hensler and
Judith Resnik trace the bar's efforts to live up to that responsibility. Almost sixty state
and federal courts have commissioned reports on gender and/or racial bias. Like
other initiatives that involve identity politics, their results have been condemned as
too radical and not radical enough. Critics from the right have dismissed findings of
bias as insignificant or unrepresentative, while critics from the left have objected to
the "sugar coated" tone in which serious problems have been presented. Navigating
these political minefields has been no small challenge. As Hensler and Resnik note,
the task-force movement has made a major contribution to social justice by making
bias visible and placing it on the professional agenda. But the greatest challenge re-
mains: building the support necessary for effective reforms.
My own final essay in the collection explores a similar challenge in institutional-
izing other professional values. "Cultures of Commitment: Pro Bono for Lawyers
and Law Students" describes the gap between the rhetoric and reality of the bar's in-
volvement in public service. Although ethical codes present pro bono assistance to
underrepresented groups as a professional obligation, a majority of lawyers provide
no such aid, and the average for the profession as a whole is under a half an hour a
week. So too, despite accreditation requirements that law schools offer opportunities
and encouragement for pro bono activities, most students graduate without pro
bono experience. The bar's failure to secure broader participation in public service is
all the more disappointing when measured against the extraordinary successes that
such work has yeilded. Many of the nation's landmark public interest cases have
grown out of lawyers' voluntary contributions, and such work has given purpose and
meaning to lawyers' professional lives. Drawing on a broad array of interdisciplinary
research, this final essay explores strategies that could foster broader cultures of com-
mitment to public service within legal education and the legal profession.
This collection offers no easy answers to the core ethical dilemmas of legal
practice. But the contributions taken as a whole identify the crucial questions and
the most promising responses. Of all the responsibilities of professionals, none is
more important than continuing scrutiny of what those responsibilities require in
practice.
to continue reading click here (http://www.questia.com/read/79107185?title=Ethics%20in%20Practice%3a%20Lawyers %27%20Roles%2c%20Responsibilities%2c%20and%20Regul ation)