Friday, October 15, 2010

The Rule of Law in the U.S.

It was distressing, but not surprising, to read that among the developed countries of the world, the United States does not even rank in the top ten in terms of adherence to the rule of law. According to the ABA Journal,
A report released by the World Justice Project—a 3-year-old initiative sponsored by the ABA and a number of other organizations representing various disciplines—says the United States lags behind other leading developed nations on all but one of nine key measures of adherence to the rule of law. The findings for each country are based on surveys of some 1,000 residents in three leading cities as well as experts in the law and other disciplines  . . . The good news is that the U.S. ranks no lower than 11th among 35 countries covered by the index on any of nine key rule of law principles.
At the heart of what I consider a low rating is the failure of the United States legal system to provide adequate access to justice for our citizens. The inability to provide access to the courts undermines our claim as a nation to be the beacon of the rule of law.

The sad thing is that most Americans do not see the problem. In fact, most lawyers probably don't see the problem. Increasingly, even middle-income Americans are unable to access the courts effectively because they cannot afford a lawyer. That means that many of our citizens are systematically deprived of an opportunity to use our admirable judicial system and a body of law that does a pretty good job of protecting rights and ensuring both predictability and fairness. When the legal system is not available to all citizens on an approximately equal basis, the system cannot claim to be characterized by the rule of law. No matter how equal citizens are once they are "before the law," if they can never get there (like the character in Kafka's story of that title) they cannot be said to be treated equally by the system.

The rule of law has many features, but one of them is that all citizens have fair and easy access to the courts and to the benefits of equal laws. Increasingly, that description does not characterize the American legal system.

Thursday, October 14, 2010

The Limits of Dishonesty?

Honesty is cited by the Vermont Rules of Mandatory Continuing Legal Education as one of the "tenets of the legal profession." But what does it mean to be "honest" in the context of law practice? Rule 4.1 of the Vermont Rules of Professional Conduct makes clear that "in the course of representing a client a lawyer shall not knowingly make a false statement of material fact or law to a third person." Is that all there is to it? Can lawyers be dishonest as long as they are not "in the course of representing a client"? Probably not, and Rule 8.4 says that it is professional misconduct to do things "involving dishonesty, fraud, deceit or misrepresentation." Rule 4.1 is obviously narrower than Rule 8.4, but can the latter rule really mean what it says?

Most would agree with the Professional Responsibility Board when it concludes that Rule 8.4's prohibition really only applies to deception that reflects poorly on a person's fitness to practice law. The Board -- and all those who agree with it -- thus assume that there are bad lies and there are not-so-bad lies, that some lies are wrong while others must at least be tolerated and should not provide the basis for professional discipline.

Over the next several months, I want to think through the morality of lying and deception, particularly as it applies to lawyers, but also as it applies in the general realm of political theory. Should government lawyers be permitted to supervise investigations that they know involve deception? Should criminal defense lawyers be able to do the same, or even engage in the deception themselves? After all, most criminal defense lawyers would argue that their duty to their client may sometimes outweigh their obligation to abide by professional ethical rules -- or at least they believe that violating the rules may sometimes be necessary in order to carry out their role in the adversary system. How about civil defense lawyers? Or plaintiffs' lawyers? Should they be permitted to engage in deception? For isn't it the case that the consequences of losing a civil suit can sometimes be more severe than the consequences of losing a criminal case?

And what does all this haggling about the justifiable limits of dishonesty say about a profession that claims to be based on honor and integrity?

Tough questions.

Monday, October 11, 2010

Cassidy on Professionalism

Rich Cassidy, in his On Lawyering blog, offers some thoughtful remarks on the professionalism requirement in Vermont. His remarks take the form of an Open Letter on Professionalism addressed to the Mandatory Continuing Legal Education Board, which is considering modification of the current requirement. Rich's post is well worth reading.

I commented on Rich's post. Here is a portion of that comment:
A number of years ago I wrote an essay in the Vermont Bar Journal in which I criticized the concept of “professionalism” and suggested that a different language would be appropriate — the language of virtue. What are the virtues of the good lawyer? That seems to me to be the central question. “Professionalism” is too easily confused with the mundane aspects of being a lawyer — things like how one should dress in court or carry oneself in public or run one’s business. In fact, in teaching countless professionalism seminars with Jim Knapp, I have found that it is difficult to keep the conversation from drifting into these mundane matters: questions, for example, of how to treat others turn quickly into questions of good business practice. That was the tendency I was concerned about in my essay years ago. I argued that what we really should be talking about is virtue and vice — character traits, not business practices, that distinguish a good person (let alone a good lawyer) from a bad. And I think it is an important question whether the requirements of “good” (in the virtue sense) lawyering can sometimes conflict with the requirements of being a good person. (In this regard, the recent discussion about whether lawyers should engage in deception raises some fascinating issues that I hope to explore in my own thinking and writing in the months to come.)
As Rich notes, many lawyers at professionalism programs have groused about the requirement. Some of them complain about the requirement that they attend in person or in a participatory fashion (e.g., via teleseminar). Some have argued that you simply can't teach an adult new tricks, that if someone is not already behaving in a professional manner, no two-hour seminar is going to mend their ways.

But the participation requirement is important because it gets people talking and forces even the reluctant to think for a minute about what they're doing. And while it is probably true that most people will not alter their behavior after two hours of discussion, that does not mean that the process of stopping to think -- to examine one's life, as Socrates thought we all should do -- is not valuable. Here I agree with Socrates: the unexamined life is not worth living. So even if you don't change your behavior after examining it, the process of examination itself is important. The professionalism requirement makes us examine how we act, how we respond in certain sorts of situations, how we carry ourselves and how we present ourselves. For that reason alone is serves a very important function.