Rhode's reforms: A review of In the Interests of Justice

IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION by Deborah L Rhode, New York: Oxford University Press, 2000. Pp. 268. $27.50

Deborah Rhode has always displayed a real talent for using words effectively to convey an idea. Her new book, In the Interest of Justice: Reforming the Legal Profession,1 is no exception. The ancients labeled this talent "rhetoric" and Plato wrote an entire dialogue about it, in which Socrates engages a rhetoric teacher named Gorgias, who thought he could separate the art of persuasion from the content of the message. Rhode, like Socrates, recognizes that the true power of rhetoric derives from its evaluation of "right and wrong, the noble and the base."2 She seeks not to flatter but to correct the profession.3 She demonstrates that in the present work by using words to educate, to reveal the truth about modern legal practice and to evaluate the lawyer's role in promoting or confounding justice. Ultimately, she seeks to reform our conviction about our professional mission and ourselves.

Rhode uses an impressive array of documentation in this book to assert that three major problems need to be tackled if the profession is to be changed for the better. She artfully describes problems in professional regulation, access to justice and the lawyer's role in representing clients that require reform vital to the health of lawyers and the legal system. And she aptly summarizes most of the best thinking about the profession from the past quarter century. In addition, she offers alternative visions to the current system of lawyer regulation and ethics that should provoke continuing dialogue. I hope to encourage that process by considering Rhode's key insights and by suggesting how they might become the catalyst for the reform she envisions.

Rhode begins the book by examining the public and profession's view of the current discontent with lawyers. She contrasts the public's perception of greed, lack of honesty and the overload of law in daily life with the profession's lament over "warring trends in contemporary legal practice."4 Lawyers' worry over increased competition, quality of life and declines in professionalism offer a unique opportunity to unite professional discontent with consumer critique. In short, the time is ripe to seek real reform, if only we can "recast the problem and rethink the responses."5 To begin this process, Rhode identifies a tripartite premise from which to develop an alternative vision. First, lawyers and our ethics suffer because we believe that our role justifies amoral behavior. Second, the unfairness created by the adversarial role is intensified by the fact that many citizens lack access to justice, making them vulnerable to abuse by well-paid lawyers who represent opponents. Third, regulation of the profession must become accountable to the public.

In Chapter Two, Rhode seeks to identify "where the profession is headed and what it will take to shift course."6 She singles out current professional values, demonstrating how they conflict and confronting the hard choices necessary to create an alternative vision that will serve both lawyer and client more effectively. Some lawyer and client discontent stems from the unavoidable function of law, which funnels troubled persons to lawyers, either to seek redress or to avoid consequences. At the same time, the increased complexity and competition of modern legal practice subjects many lawyers to "dispiritingly dull or relentlessly repetitious" work.7

Beyond systemic concerns, lawyers are subject to the "priority of profit"8 which has created enormous gains in income compared to the rest of the population over the past half-century. Rhode persuasively marshals statistics to describe what those in practice realize: well-paid associates at large firms display the most discontent, while less well off public interest and public sector lawyers express much greater satisfaction with their professional status. Rhode criticizes lawyers who use money as a means of "keeping score" and blames the demand for huge numbers of billable hours for creating an enormous gap between professional ideals of pro bono service and the practice realities of profit.

Lawyers also suffer from increasing bureaucracy in private practice, which has created the "meritocracy myth"9 that the best lawyers are those who match the composition of the bar before it began to diversify about a quarter century ago. For the most part, established lawyers have not acknowledged stereotypes and

preferences that prevent those new to the profession from obtaining the mentoring they need to succeed. Law firms have thereby missed another opportunity to improve the quality of life for all lawyers by creating alternative structures that could benefit those who seek a different kind of commitment.

The alternative vision focuses on what makes work life meaningful: challenging and valuable tasks, some sense of control and responsibility over one's work, sufficient time for personal matters to maintain balance and prospective and supportive collegial environments. Pro bono work should count toward billable hours in order to increase the amount of meaningful work lawyers accomplish. Accommodations for work and family and a diverse work force would benefit all lawyers. Job commitment and performance should be measured by the quality rather than the quantity of work completed. Any short-term profit lost to other firms that concentrate on size, profit and income can be replaced by long term gains in "morale, recruitment, and retention."10

In essence, lawyers have what we profess to want: money. What we need instead is less profit priority, which drives so many other sources of dissatisfaction. Our success in achieving monetary rewards has created structural barriers to our ability to develop a supportive practice environment. Rhode does not believe it is "unreasonable to expect some modest short-term financial sacrifice that will promote more satisfying professional lives."11 In Chapters Three and Four, Rhode gets to the heart of her critique of the adversary ideal. Although she is careful to point out "most routine legal work does not pose significant moral issues,"12 overall she believes that "practice structures have reinforced a professional role that compromises public interests."13 Zealous representation of powerful interests that pay well has caused harm to innocent third parties, who usually are not guarded by a zealous advocate.

Rhode traces the evolution of the lawyer's role as morally neutral advocate to nineteenth-century debates about whether lawyers should owe any moral responsibility for making bad law. Gradually, a retreat into role developed, which gave lawyers the discretion whether to take on a client, but no social obligation to worry about defending an unjust cause.14

In order to answer the question whether this morally neutral form of advocacy is really the best way to achieve justice, Rhode examines the "Premises of Partisanship." She finds the utilitarian justification, that an adversarial clash of points of view best promotes discovery of the truth, more a reflection of an American worldview that prizes competition than a self-evident fact. She also sees the second assumption, that zealous representation promotes individual

rights, as rooted in more general cultural priorities that value individual liberty.15

Although these justifications for morally neutral advocacy take on considerable force in the context of criminal defense representation, a disinterested tribunal does not supervise most legal work. Instead, "the vast majority of legal work assists corporate and wealthy individual clients in a system that is scarcely hostile to their interests."16 But the assumption that any client is entitled to whatever the law permits confuses legal and moral right. And morally, "such selective concern is impossible to justify."17 In actuality, most lawyers make a virtue out of necessity by claiming the right to advocate for the interests of those that pay, regardless of whether or not the goal sought is just. The real question should be what justifies this professional escape from the fundamental moral responsibility of individuals."18

Rhode characterizes the current system as a morally simple universe for lawyers, but she argues that it actually extracts costs that are at the root of the current discontent of both the bar and the public. First, the submission of self into role alienates lawyers from our own moral convictions. This robs lawyers of the objective moral vision we need to counsel troubled clients. Second, the shrinking of the moral order into legal rights and responsibilities also subverts the legal order itself. Even in cases where a legal rule is clear, a low chance of penalty can result in "loophole lawyering" which encourages practical nullification of the law. Clients who prize short-term gain over long-term interests also can accelerate the race to the bottom. At the same time, repeated single-minded pursuit of self-interest can damage cultural goods such as honesty and fair dealing that are essential for free markets to thrive.19

Rhode's alternative framework requires lawyers to accept personal responsibility for the moral consequences of their professional actions. This does not mean that lawyers need to construct a new moral universe. Several fundamentals stem from the lawyer's role itself. First, respect for law must be maintained. Second, in those areas where legal rules are indeterminate or ethics rules grant discretion, the lawyer must consider the social context of her decision. Rhode recognizes that enlarging the scope of lawyer moral accountability might "encourage some clients to withhold information." But she deems this worth the candle. Clients who take this route will lose access to well-informed legal advice. But lawyers will gain the psychological income that comes from integrating our professional and personal self.20

Rhode tests her alternative vision with two categories of hard cases. The first

involves the use of legally justifiable means to achieve unjust ends. Here, Rhode sides with clients, especially if tactics can affect outcome. In the context of criminal defense representation, she argues that "lawyers who insist that prosecutors abide by technicalities are maintaining, not subverting, the rule of law."21 In other cases, commitment to the moral value embodied in a legal rule, such as privacy of an association's membership list, can justify the representation of an otherwise morally reprehensible individual, such as a KKK member.

More troublesome are cases where unjust means, or dirty hands, can achieve a just result. These cases tempt lawyers to turn a blind eye to fact (a welfare client's extra unreported income) or law (the requirement of fault in a divorce) in order to achieve a just result that may require disregard of legal rules. Here, Rhode cautions against disregard for legal requirements and argues for legal reform where the current law lags behind needed moral accountability. Her goal is not to create a "double standard of advocacy," but rather to help lawyers assess the moral as well as the legal merits of what we do. She concludes by conceding that the "full effects of such an approach are difficult to predict," but argues that her alternative "at the very least should reduce the gap between lawyers' personal ideals and professional practices."22

In Chapter Four, Rhode examines the sporting theory of justice-winner take all-that seems to require and justify morally neutral advocacy. She criticizes "procedural pathologies" such as discovery abuse, "antics with semantics," abusive conduct toward opposing counsel, objectionable questioning techniques and sharp practices such as the exploitation of an adversary's inadvertent error. She finds this troublesome conduct caused by the power and money of litigants with something to hide, and the egos of lawyers. And she catalogues the costs to lawyers: loss of reputation and integrity, and alienating work environments. For clients, the sporting theory means breakdowns in continuing relationships, excess costs and neglect of non-adversarial values, such as regret or humility.

Of course, many of these sharp practices have been curbed by increased judicial control of clearly inappropriate conduct.23 Those that have escaped official scrutiny have created two distinct responses from the lawyers. The first sees these practices as by-products of a flawed but relatively useful legal system. The other response calls for greater curbs on lack of civility, which usually take shape as voluntary civility codes. Rhode finds these codes "vague and inconsistent" and argues that in the long run, major improvements will only take place

with changes in mandatory professional rules and incentives.24

Rhode wonders what would happen if American lawyers viewed litigation as less of a sporting event and more of a search for truth. And she suggests a new ethic: "lawyers shall not assist a client in achieving an unreasonable outcome" to transform the system.25 Yet she stops short of recommending such a required rule because she recognizes the difficulty of interpreting or enforcing it. She does, however, suggest four concrete changes to move in the direction of using the adversary system as a search for the truth rather than a sporting event: better bar enforcement of current standards, increased judicial scrutiny, best practice standard certification for law firms, and more focus on ethics and collaborative problem solving in legal education.26

If a trial is to truly be a search for the truth, Rhode suggests that lawyers should be required to take an entirely different approach to witness preparation. Current scripting of witnesses should therefore be replaced by either greater inquiry into the extent of pre-trial preparation, or the European prohibition on pre-trial witness contact. At the very least, ethics codes would prohibit lawyers from "discrediting or degrading a witness whom they believe is testifying truthfully."27 Requiring judges to determine when experts are necessary, and which experts to call, could curb the bias of expert witnesses. Curiously, she also advocates contingent fees for experts, because that would make them more available to those who cannot afford to pay. That such a system might exacerbate the problem of bias seems less important.

The last section of this rambling chapter focuses on the abuse of confidentiality. Rhode cites some well-known cases and argues that new exceptions be developed that would require lawyers to disclose hidden threats to physical well-being and fraud.28 She once again examines the rationale for confidentiality and concludes that concerns about individual rights and effective representation of clients pale by comparison.

Here, she seriously avoids wrestling with the counseling role of lawyers, and the extent to which it promotes private law enforcement. She argues that clients who want to withhold damaging information from lawyers for fear it might be disclosed either will be unable to do so because they need legal advice, or will not know which disclosures might be legally damaging.29 Of course, this ignores the point. If clients overestimate their guilt or legal exposure to any degree, significant opportunities to advise them may be lost. Lawyers will then be called

only after the client gets in trouble. Since a significant proportion of fraud and other harm may go undetected for substantial periods of time, this also deprives the public of the protection of laws meant to prevent it. Rhode does concede that "[t]he effectiveness of such reform is difficult to predict."30 But she argues that the value of whistle blowing far exceeds the cost even if lawyers would not comply with such mandatory requirements.

In Chapter Five, Rhode seeks to debunk the myth of "too much law, too many lawyers," by exploring the reality that we suffer from too much for those who can afford to pay and far too little for those who cannot. She provides convincing evidence to support these propositions, and explains why "[s]ignificant costs are inherent in a legal system that values interests apart from efficiency and speed.... ."31 She then offers strategies for minimizing these distortions in access to justice. First, alternatives to expensive litigation should be expanded. Rhode is a careful advocate of alternative dispute resolution, pointing out its advantages as well as its inability to counter imbalances in wealth and power.32 She advocates for a broader range of public choices and the information necessary to make them. She also argues for new alternatives to lawyers, requiring changes in the law of unauthorized practice and licensure of other professionals such as paralegals. She argues that multi-disciplinary practice should be encouraged, including those that subject lawyers in accounting firms to less stringent conflict of interest provisions. Here, she apparently overlooks a recent House of Lords decision to the contrary.33

Rhode also argues in favor of strategies to "unbundle" legal services, so that interactive computer kiosks or on-line systems can assist individuals. Lawyers should provide limited low-cost services such as advice about legal options, evaluation of proposed documents or settlements and referrals to other services providers such as mediators, health professionals or accountants. Of course, the problem, once again, is money. Many lawyers benefit from the current system and want no change. On the other hand, some already provide these services and often lack the money or political power to urge their fuller implementation.

This division in the wealth and prestige of the bar also exacerbates the difficulty of professional regulation. In Chapter Six, Rhode explores the limitations of professional regulation by examining five topics: advertising and solicitation, bar admission, continuing legal education, competence and self-- regulation and fees. She begins by assessing the rationale for self-regulation, identifying three market imperfections that require correctional response. First, significant numbers of legal consumers lack the information necessary to evaluate the service they receive. Second, some lawyers become "free riders" by

benefiting from the public trust created by regulatory fiduciary duties without themselves adhering to these standards. Third, lawyers can create externalities by conduct that advantages a client at the cost of harm to third parties or society.

Rhode then suggests ways to counter the profession's tunnel vision. She suggests vesting control of advertising and solicitation in a disinterested consumer commission charged with the task of ferreting out false, fraudulent or misleading speech. With respect to bar admission, Rhode also suggests that we move toward a national bar exam or greater reciprocity between jurisdictions to increase consumer choice. She addresses quality control by arguing that continuing legal education programs could become more productive if fewer credits and more quality were required. She also favors mandatory malpractice insurance and greater independence in offices that handle disciplinary complaints, along with a definitive professional whistle blowing duty to enhance the disciplinary process.34

Rhode then returns to the heart of the matter: money. She recommends a written fee agreement requirement, as well as voluntary law firm internal audits of fees and fee arbitration systems that accommodate consumers. She concludes that the problems in all these areas can once again be traced to deeper roots in our culture that values "money as a way of keeping score."35 She recognizes that many of these changes will not occur without massive public pressure, but suggests that the incremental adjustments she favors are possible and necessary.

In Chapter Seven, Rhode takes on her own enterprise, legal education. She argues that law schools have lost touch with part of their mission: the responsibility to equip students "with legal knowledge, legal skills, and above all, legal judgment."36 Students also need to "acquire the habits of mind and ethical values that will serve the public in the pursuit of justice."37 To accomplish these goals, she identifies three tasks that need to be accomplished. First, accreditation standards need to focus on the fact that current inputs (facilities, resources and faculty-student contact) both under and over prepare law students for law practice. Students need more practical skills to solve both problems. Law schools could even develop courses for paralegal specialists who would provide routine legal services. Second, law faculties need to address the real problem: educational methods and priorities. Rhode identifies the "hypercompetitive culture of many law school courses, which undermines self-esteem" and its handmaiden, the "overly authoritarian and competitive dynamics of many classrooms," which

prevent rather than encourage reasoned analysis and fluent oral presentations.38 Missing for students is a sense of how law interacts with life, which could be supplied with more interdisciplinary and clinical training. Third, the inadequacies of law teaching apply with a vengeance to the teaching of professional responsibility. Rhode argues for a pervasive approach, along with required pro bono obligations for both students and faculty.39

Rhode concludes her analysis by returning to her vision for the future. The current legal system supplies overly zealous representation to those who can afford it and little or none to everyone else.40 The overall problem is lack of public accountability, which offers lawyers power, money and stature, but deprives the public of access to justice, consumer accountability and ultimately leaves lawyers dissatisfied with our own lives.41 We need to harness the market by increasing consumer choice, taking a less restrictive approach to licensing lawyers and nonlawyer specialists, developing alternative dispute resolution procedures that enable people to do without lawyers, and creating best practice standards for lawyers and firms.42 We also should respond to market inadequacies by developing more effective regulatory structures and recasting lawyers' ethical rules in more socially responsible ways.43 Even then, Rhode concludes that "substantial obstacles" stand in the way of progress.44 She articulates the central challenge: to inspire lawyers with a richer sense of ethical obligation fully accountable to the public. We need these reforms to "reconnect the ideals and institutions of legal practice."45 And lawyers and the public should work together to re-channel some of the bar's best instincts.

Throughout this analysis, Rhode demonstrates massive attention to detail that is for the most part complete, accurate and persuasive. But I was disappointed that the last chapter primarily reverts to only two of the three central themes she set out in the first chapter. In her summary, Rhode returns to the problem of access to justice and reiterates the need to reform professional regulation. She recognizes that access to justice is a huge social problem that will not be remedied until we face the social inequities behind it. And she seems to say that lawyers, primarily because we have accumulated so much wealth, stand as a major barrier to solving this problem. Left to our own devices, lawyers are unlikely to push for professional reforms.

Yet, oddly, Rhode neglects the retreat into role issue that she says makes lawyers so disconsolate. If lawyers are truly as unhappy as all the statistics Rhode

marshals indicate, then the bar itself could become a significant catalyst for needed reforms. Rhode makes this point forcefully in the first chapter. She reminds us about "the importance of what we care about,"46 and urges us to reflect at the deepest level about whether our work is truly meaningful. She argues that "increased competition may be a given, but lawyers can change what they are competing over."47 She argues that the structure and function of law offices should promote conditions that promote professional fulfillment, such as challenging tasks, responsibility and control over work, time for personal life and supportive collegial environments. Some of this can be encouraged by better office management, some will require more commitment to public service, including pro bono representation.

Without a return to this central idea of professional ennui and angst, Rhode misses a final opportunity to harness lawyer power to generate real change. Instead, she leaves us with this conclusion: "Lawyers' primary responsibility should run to the system of justice and to the core values of honestly, fairness, and good faith that sustain it."48 Few will debate that conclusion. But how does this professional responsibility fit with her insistence in Chapter Three that lawyers should reflect on and assume moral responsibility for the results of our professional acts?

Throughout her work, Rhode seems on the verge of suggesting something else: that lawyers' emphasis on profit seduces us to view our role solely in instrumental terms. In the language of Professor James Boyd White, we have become reduced to thinking of ourselves as cogs in a giant bureaucratic social machine, implementing compliance with or evasion from its rules.49

Rhode tees up the possibility of an alternative to this limited vision, but misses an opportunity to elaborate more fully on its contours. Questioning a profit priority may be an important first step toward enabling us to imagine an alternative to this mechanistic thinking. But we also may need more than supportive professional environments and control over our work to achieve some more enlightened sense of role.

Professor White suggests, for example, that the way we imagine law may need reform. He proposes that we imagine law as rhetorical discourse: working by persuasion to maintain and transform its culture.50 Viewed this way, we would eschew both "the claim that the law is power, nothing but power," as well as the opposing claim "that the law-or the judiciary-is perfectly just or perfectly

neutral."51 We then would be in a position to enlarge our instrumental role to a rhetorical one that acknowledges how we bring our "own values and experiences of life to the process" of how we work.52

In the end, I sense a patchwork of three groups of reforms in this book, but I am left without the quilt or coherent vision for how they might be sewn together or accomplished. Rhode has helped me clarify incremental steps for the future, and she has raised some significant questions about the way lawyers in practice misconstrue our role. But the alternative vision for lawyers-whether and how we can reform the legal system to promote the core values we should treasure-remains less clear. More needs to be said about how lawyers should evaluate the moral validity of our professional acts. And more needs to be said about how much of that will be necessary if we take to heart her other suggested reforms, such as better professional regulation and more serious efforts to remedy problems of access to justice.

Rhode has opened a conversation about promoting personal accountability for professional duties. But assigning lawyers the task of monitoring fiduciary duty for unfair results will require massive retooling of the system. And it also creates the danger, as Rhode herself realizes, of increased paternalism and perhaps even greater inequities for those who have a right to counsel but often get less than they should. I would like to see more dialogue about the connection between professional regulation, access to justice and the lawyer's role. And I wonder whether a broader examination of how we view the law might enrich this discussion. If lawyers begin to realize the manner in which law both extracts and infuses new meaning into each legal transaction or dispute, then we might not be able to escape the moral accountability Rhode prescribes. In each representation, we might more self-consciously express a way of conceiving the world, translating the language of life into the language of the law.53 None of that will be easy, but I hope that Deborah Rhode will be one of the voices that engages both the academy and the practicing bar in further consideration of these reforms.

REVIEWED BY SUSAN R. MARTYN*

* Professor of Law, University of Toledo College of Law

Copyright Georgetown University Law Center Fall 2001
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