Lawyering in 21st Century

Get ready for when rubber hits the road (legal profession in short & long

term)

Note cards & self introductions

• Name, year in school• Whether you’ve completed PR course• Practice interests (type of law, geographical

preference – OK or elsewhere, large city or small town)

• Dream job using legal skills• Concerns• Expected amount of student loan debt at

graduation? Degree of concern this causes you?

Syllabus

• Grading option A: room for a few to satisfy GWR (details pp. 1-top of 3)– Topic proposal– 1st draft– Presentation– Final draft, due 3 weeks after presentation

• See pp. 12-14 for possible topics

Grading option B: 3 short papers (details pp. 3- 5)

1st paper• A Subjective, emotional or

professionalism reaction to issue of professional responsibility. Due 2:00 Thurs. Feb. 2 (3 pp)• B Legal analysis of one or more issues

raised in A. Due 9 a.m. Mon. Feb. 20 (5 pp)

Grade Option B

2d paper: Research on topic related to your chosen law firm presentation (anytime between Feb. 27 – April 3; firms must sign up for date preferences and topics)3d paper: 8 pp. due by last day of semester. See syllabus pp. 4-5.For both 2d & 3d, see pp. 12-14 for possible topics

Tentative Semester Schedule pp. 8-11 Rockstar Guest Appearances

• Mon., Jan. 23: Getting Grip on Student Loans, Bell Courtroom, Heather Jarvis

• Tues., Jan. 31 Career Planning Casey Delaney• Tues., Feb. 7 Gina Hendryx, OBA GC• Feb. 13-14 Into the Books, with Library Darin Fox &

Joel Wegemer• Mon., March 5, Travis Pickens, OBA Ethics Counsel• Tues. Prof. Andrew Perlman, Suffolk ABA Ethics 20/20• Tues. April 10 Jim Calloway, OBA Mgmt Assistance

Loan Repayment Follow-up

Regrouping underway (today’s email)Connections with professionalism, becoming a lawyer of integrity

Aspirations to attend law school;Changed? If so, why?

Impact of debt load on following one’s dreamsAJD I: (Am. Bar Fdn) (2004): $63K debt at graduation as breakpoint on career choice.

Ponder: then & now

Why did you attend law school? Happy with decision? Now, do you want to practice law or do something else with degree?

Ponder: Integrity

What is integrity? How does one become a person of integrity? Can it be taught – in school or in practice?Daly (2003) Lessons learned from 1) management theory (pp. 269-72); 2) behavioral psychology (pp. 272-73); 3) cognitive science (pp. 273-76)?Current lessons: management theory, neuroscience, emotional intelligence, social intelligence

HOW DO THESE LESSONS APPLY TO LAWYERS, FIRMS?

Questions to Ponder

• What is professionalism?• Why did you attend law school? Happy with decision?

Now, do you want to practice law or do something else with degree?

• What is integrity? How does one become a person of integrity? Can it be taught – in school or in practice?

• Identify lawyer traits you admire? What can you do to acquire those traits?

• What are negative lawyer traits and how can you avoid them?

Session 5: Core Values

• Reminder: Journal I, Part A: due Feb. 2, 2:00 P.M.

• GWR Election (made by default), topic proposal due

What are Legal Profession’s “Core Values”? (and is there a consensus upon?

• Public service (6.1, civic virtues of republicanism)

• Loyalty (1.7-1.13)• Trust (same, & common law of fiduciaries)• Confidentiality (1.6 & long history)• Competence (1.1)• Avoid conflicts of interest (1.7-1.13 & common

law – fiduciaries, legal malpractice)

Roscoe Pound (1906)

“[Profession] refers to a group ... pursuing a learned art as a common calling in the spirit of public service - no less a public service because it may incidentally be a means of a livelihood. Pursuit of the learned art in the spirit of a public service is the primary purpose.” ABA Commission on Professionalism, In the Spirit of Public Service: A Blueprint for the Rekinding of Lawyer Professionalism, at 10 (1986).

Calling? Law as Vocation

• Lawyers have calling

• Do lawyers have monopoly over virtue?

• Vs. profit-motivated world of business

Public Spiritedness in all that Lawyers do???? Brandeis vs. narrower view of RPC 6.1?Symbolic aspiration vs. meaningful duty?

Competence, loyalty & trust

Duties to clients, some to third parties & candor to courts (3.3)

Conflict avoidance

• Independent from our clients• Separate self-interest from client interest,

duties to court & other third parties

Independent Professional Judgment

• See 5.4, traditional form of practice restrictions, prohibit non-lawyer partnership, owners or managers with supervisory authority over lawyers acting as lawyers

• Why?• Why SO resilient to change? [see Grecco p. 4]

Michael Greco (ABA President 2006-07) p. 5

• Tradition of state-by-state regulation of lawyers, with State Supreme Courts having final & exclusive authority over those licensed (or otherwise permitted) to practice in jurisdiction. Hidebound tradition, since ABA founding 1878.

• Any good reasons to change?• Rule of Law initiative

Looking forward to Ethics 20/20:

Thesis: if any changes warranted by globalization & technology, organized bar must devise ethical regulatory solutions that preserve core values. Learn from U.K., Australia (monitor progress & set-backs)Understand what compelled their experimentation & whether dramatic change here warranted.

Greco, Looking Forward to Ethics 20/20 p. 6

1) What benefits & to whom? 2) impact of non-L O-ship or reg’n on U.S.

justice system, public protection; 3) why not keep State Cts as primary

regulators? 4) what necessary improvements possible w/o

dismantling existing system?

Bruce Green, ABA Ethics Reform from “MDP” to “20/20”: Some Cautionary

Reflections• Organized Bar’s Resistance to Ethics Reform– E.g., 5.4 (‘83 Kutak, 2000 MDP, rejected)– 2002 5.5 (temp. practice/MJP – small reform)– 2002 1.6, 1.13 expanded exceptions to confidentiality –

only under pressure from SEC & feds, external regulators• Larry Fox: beacon, flashlight, candle, matchstick• Responsive to public interest claims only when forced

• State-based Regulation, Nat’l Conf. of Chief Judges– GAT: U.S. representative lacks negotiating authority to

bind states

“The Unitary Bar” (or “myth of the unified bar”: all for one, one for all)

• Rules treat all the same, despite important differences between large, sometimes multi-national firms and small firms (1-20 lawyers)

• Justification: RPC conflicts rules as default rules, can contract around, especially with sophisticated clients. N.B. 2009 ABA MRPC Amended 1.10 to allow firms to screen lateral hire, avoiding disqualifying conflict, WITHOUT CONSENT of former client.

The Professional Monopoly

• Unauthorized practice laws: justified b/c “profession” – categories of work that can only be done by lawyers licensed in relevant jurisdiction.

• Enforcement authority: misdemeanor, injunction, contempt

• Consumer harm? • When is UPL expression of economic self-interest

or justified as public-spirited concern for public interest?

Basic Satisfaction with Current Mode of Professional Regulation

• Inertia; “if it ain’t broken, don’t fix it”• Entrenched; inherent conservatism of law,

resistant to change. More so when lawyers make law for themselves, power of “self-regulation”

• U.S. lawyers & legal system: comparatively well off. Contrast, e.g. Pakistan, attacks on independent judiciary. Rule of Law initiative

• Claims to protect “Core Values” > fearful of change, unintended & unforeseen consequences