Professor Merritt’s Blog post on attorney discipline and bar exam WORTH A READ!

Our blog has often posted about many issues related to licensing lawyers, experiential requirements for admission, the monopolizing power of the NCBE and the pros and cons of the UBE.  Thus, I recommend to our readers an excellent post by our blogger friend Professor Deborah Merritt over at Law School Cafe on bar exam scores and lawyer discipline. Professor Merritt analyzes an article by Pepperdine Professors Robert Anderson and Professor Derek Mueller entitled The High Cost of Lowering the Bar Exam.   Professors Anderson and Mueller opine that “lowering the bar examination passing score will likely increase the amount of malpractice, misconduct, and discipline among California lawyers.” Merritt objects to any causal inference noting,

Two key facts, however, weigh strongly against drawing that type of causal inference. First, as Anderson and Muller point out, “[t]here is virtually no discipline in the first 10 years of practice.” If the bar exam measured qualities related to attorney discipline, one would expect to see disciplinary cases emerge during those 10 years. Wouldn’t attorneys with marginal competency (as measured by the current bar exam) reveal their deficiencies during their early practice years?

Second, attorney discipline almost never rests on lack of knowledge about legal doctrine, poor reasoning skills, or bad writing–the skills currently measured by the bar exam. Levin and her colleagues reported that attorneys most often received discipline for failing to communicate with clients (20.0%), lack of diligence (17.93%), and failure to safeguard client property (11.26%). Only 4.14% of disciplinary sanctions related to “competence”–and even some of those cases may have reflected incompetence in areas that are not tested by the bar exam.

My favorite comment by Professor Merritt provides another example from which we should not infer causality (however tempting it might be to some of us who have been hurt by patriarchy),

We should not exclude individuals from a profession based on qualities that merely correlate with misconduct.

To underscore that point, consider this: The strongest predictor of attorney discipline is the y chromosome. Male attorneys are much more likely than female ones to be disciplined. If we want to use correlations to reduce instances of attorney discipline, it would be much more efficient to ban men from the profession, subject them to special character exams, or require them to achieve a higher bar exam score than women. Those actions, of course, would raise special issues of gender discrimination–but they illustrate the drawbacks of predicting malfeasance based on correlations.

These questions and assumed correlations are important ones. Many defend the decreasing bar passage statistics as appropriate market correction to prevent “undesirables” from entry into the profession — a consumer protection argument. However, as Professor Merritt points out, there is so much more to unpack here. For example, most misconduct challenges occur against solo practitioners or small firms. This raises overlapping socio-economic questions: which lawyers could be perceived as easiest to challenge, which lawyers have the best legal defense teams, and which kind of clients have the most reason to complain.

After teaching for over 28 years and observing which graduates pass the bar on the first try and which do not , I am skeptical of the Anderson-Mueller argument. I would love to see the NCBE and other scholars engage in a socio-economic analysis of bar passage and of disciplinary misconduct.

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The Voices We Can’t Hear: How Student Loan Debt Helps Maintain The Status Quo

When I began this blog post, I admittedly started in a completely different direction. I kept coming back to a topic that has always intrigued me; how is it that the students we teach get to the point where they are in our class or clinic?  What was the path that brought them here? What were their motivations and what did they originally seek out to accomplish? But I also wonder, and what led me to this particular topic is, who could be here, but isn’t?

This post addresses in part, one of the challenges that presents itself for both current and potential law students. Debt. I often wonder if we are doing enough as law professors to encourage students to not only enter public interest work but make sure motivated and passionate students who face multiple barriers, including socioeconomic and class background, are able to view law school as a realistic option in the first place. One of the ways I believe we can bridge the gap between underrepresented student groups of all types and the traditional law student is supporting (and assuring students are informed about) loan forgiveness programs such as the Public Service Loan Forgiveness Program (PSLF).

For those of you not familiar with the program, PSLF is a program that allows an applicant to have their federal loan debt forgiven after 120 on-time payments while working in qualifying nonprofit, government or other public interest employment. For law students who want to work in public interest, this can make law school more realistic.

PSLF has been on the chopping block in Congress a few times in recent years and, admittedly, a selfish fear comes to mind with the new incoming administration: will it support programs like this? This topic may seem unimportant given the serious concerns we and many of our students have (and are aptly described in Mary Lynch’s recent blog post). We know we must support our students. But I keep coming back to the voices of the talented, dedicated students who never made it to law school, and not for lack of talent or ambition.  Many of the voices who are locked out are likely those who are able to speak to economic and racial injustice better than most in our elitist profession.

Statistically, law school debt has affected some groups more than others. Here I focus on one example; first generation college students who go on to attend law school. According to the LSSSE 2014 Annual Survey, first generation students have more debt than non-first generation students. This is thought in part to be attributed to lower levels of family income and support, and educational degree expectations and plans. 48% of Hispanic, 43% of black/African-American, 25% of Asian and 23% of white law students are first generation college students.  Among other factors, the exorbitant cost of law school closes the door of opportunity to be a lawyer before many even have a chance to pass through it. Some are willing to take on the debt to pursue higher education, but for those who aren’t—or realistically can’t—the door is not only closed but appears locked.

Generally, first generation students in law school are in the minority, at 27%. They usually have to work outside school, and they are able to participate in less extracurriculars as a result.(LSSSE)  A 2015 op-ed from the National Law Journal  spoke to how the neediest students end up with more debt because scholarships are often merit-based (LSAT scores) instead of based on financial need. Considering the correlation between high parental education and high LSAT scores, the author argues that the neediest applicants are doubly disadvantaged; “They are least likely to gain admission and, even if admitted, they are least likely to be awarded the most generous scholarships.”

Putting this into perspective, the numbers surrounding law school costs and debt—with which I’m sure you are all familiar—are staggering:

In 2014, the average law student graduating from a private law school accumulated $122,000 in student loan debt, and the average public law school graduate had accumulated $84,000. This does not include an average of $30,000 in student debt for undergraduate studies. By contrast, according to a 2014 survey by the National Association for Law Placement, the starting salary for a legal aid lawyers was $44,600, and for prosecutors and public defenders, starting salaries for each were approximately $50,000.” Public Service Loan Forgiveness: ABA Supports Preserving Federal Public Service Loan Forgiveness-One Pager 

A common argument against keeping programs such as PSLF is that students are uneducated about the consequences of loans and should be held responsible for the payments. Doing the math, it doesn’t make much sense to take on a debt of $140,000+ only to have a chance of working in a highly-competitive job in the $40,000-50,000 range. With the consequences of loan debt so apparent, and the alternatives so few, we are in fact telling future public interest lawyers that they are bound to a life of high debt unless they receive a scholarship or they (or their families) can afford the high tuition.

Programs like PSLF can be a threat to the enormous profit the federal government makes on student loans every year.  At the same time, from an economic perspective, less loan debt means more spending power, which results in more money being pumped into the economy, housing market, etc. As a society, we pay a lot of lip service to the importance of an education and then chide students for taking out loans to afford that education.  High debt has delayed many borrowers from getting married, having families, and buying houses. If nothing else, maybe the fact that borrowers with loan forgiveness would pump money back into the economy will sway the incoming President, who has already spoken out against the high costs of education and the profit the government makes from student loans. Even considering the political compromises that go into budget proposals, I was disheartened that President Obama proposed to limit the PSLF loan forgiveness to $57,500 in his 2015 budget proposal. As a former community organizer and law professor, he was no doubt aware of the high costs of law school and low pay of public interest work. It remains to be seen what our President-elect will do.

Loan forgiveness programs like PSLF made a career in public interest attainable for me. Many first generation students like myself, whose families couldn’t financially support us through college and law school, made a tough decision that others call irresponsible. I don’t regret my choice. But my ability to spend a career working as a social justice advocate will suffer if PSLF is taken away. And many incoming law students who, but for PSLF, law school would otherwise not be possible, will be cheated of a chance to pursue their dream of doing the same.

We need public interest attorneys. Many who currently have a career in public interest entered law school to do what they are doing now. Let’s keep the option open to all passionate, dedicated, and talented persons who want to work for social justice, regardless of their background or differences, seen and unseen. Support these programs at the federal and state level in any way possible. I have been inspired by the efforts of the ABA’s campaign #Loan4Giveness which followed the proposal to cut the PSLF program, as well as SALT’s B.A. to J.D. Pipeline events.  We hear a lot about educating students on the realities of job prospects and debt post-graduation. While vital, it’s equally important to recognize the injustice involved in limiting public interest jobs to those who can only afford law school without incurring substantial debt.  More generally, it’s also important to consider how the elite structure of law school encourages a select applicant pool values certain admission criteria that only continues keeping out the under-represented.

Support students by making them aware of these programs, and by sharing your own story if you or someone you know has benefited (or could have benefited) from such a loan forgiveness program. I would like to echo Jill Engle’s July blog post in saying that the privilege we have, has given us a platform. The ability to go to law school is an opportunity that not everyone has been presented with. The voice that comes with being an attorney is incredibly powerful when used for the right purpose, and if we allow schools to remain elitist institutions where anyone can apply but few can afford on their own, the status quo will not change and diverse voices will go unheard.

 

 

Why Don’t People Complain? Implications for Defense Counsel. And Some Practical Ethics Hypos for Students.

 

The presidential election campaign this year has provided several teachable moments for law students and lawyers and this post focuses on one of them.

Unless you have been hibernating for the past few weeks, you know that a number of women have accused Republican candidate Donald J. Trump of sexual misconduct.  Mr. Trump and his supporters have denied the claims, arguing that the fact that the women did not complain at the time of the alleged incidents undermines their credibility.

Rather than focusing on the merits of these particular claims, this post uses dispute resolution literature to describe why people often don’t complain, especially about sexual misconduct and discrimination.  Then it discusses implications for defense counsel and their clients of the lack of complaints by people with potentially valid claims.  And finally it offers some hypothetical situations for law students to consider about how they would act when representing defendants.

Naming, Blaming, and Claiming

The following two classic, companion articles analyze how complaints do or do not occur.  William L. F. Felstiner, Richard L. Abel, & Austin Sarat, The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . . , 15 Law and Society Review 631 (1980-81);  Richard Miller & Austin Sarat, Grievances, Claims and Disputes:  Assessing the Adversary Culture, 15 Law and Society Review 525 (1980-81).

To illustrate the evolution of disputes, consider the case of Lilly Ledbetter v. Goodyear.  Ms. Ledbetter worked for Goodyear from 1979 until she retired in 1998.  Shortly before she retired, she received an anonymous note with the salaries of three men doing the same job as she did but who earned 15% to 40% more than her.  She sued Goodyear and the jury awarded her about $3.3 million, which was later reduced to about $300,000.  In 2007, in a 5-4 decision, the U.S. Supreme Court ruled that she could sue only for actions occurring within the prior 180 days, and that she did not prove that discrimination occurred within that period.  In response, Congress enacted the Lilly Ledbetter Fair Pay Act of 2009, providing that the statute of limitations for presenting an equal-pay lawsuit begins on the date that the employer makes the initial discriminatory wage decision, not at the date of the most recent paycheck.

Naming – “Perceiving Injurious Experience” (PIE).  The first step is that potential complainants must perceive that they have suffered an injury.  Until Ms. Ledbetter received the anonymous note, she did not perceive that she had experienced an injury.  After receiving the note, she perceived that she had been injured by receiving lower compensation than similarly situated men.

I picked the Ledbetter case because it dramatically illustrates this first step in the process that can lead people to complain (or not).  Many other situations aren’t so clear.  If someone bumps into you in public, for example, you may feel that your body or dignity has been injured – or you may just write off the experience as a normal part of life.

What is perceived as injurious is subjective and a matter of social definition.  In the Mad Men era, before sexual harassment was legally and socially recognized as wrong, for example, female employees experienced bosses’ sexual conduct as a hazard but not the source of personal injury.

There are individual differences in propensity to perceive things as injurious.  Some people regularly feel victimized by a lot of things that others would simply accept without much thought.

Some, including the courts, might not recognize certain experiences as injuries but people may feel that they were injured nonetheless.

Blaming – Feeling Grievance.  Blaming is the next step in what Felstiner et al. call the “transformation” of PIEs into disputes.  Blaming is when a person believes that someone or some entity is at fault for the person’s perceived injury.  Of course, people don’t always blame someone else for their injuries.  Instead, they may consider an injury as just a fact of life, an act of God, or their own fault.  Sadly, some blameless victims blame themselves for acts that abusers are solely responsible for.  And people sometimes unfairly blame others for things that the others are not responsible for.

In Ms. Ledbetter’s case, once she learned of the disparity in pay, she blamed Goodyear, her employer.  While this may seem like an obvious response these days, we used to justify paying men more than women on the theory that they had to support their families.  Given that mindset, many women accepted that this was just “the way things are” and didn’t particularly blame their employers.

Claiming – Demanding Redress.  Of course, when people blame others for their perceived injuries, they may demand some form of redress.  These demands may take many forms such as payment of money, restoration of the prior status quo, cessation of injurious behavior, and apologies, among others.

Sometimes people make claims even when they don’t believe that they are injured and/or don’t blame others.  For example, people who commit insurance fraud presumably don’t believe that they have been injured but demand payment.  Indeed, some wealthy individuals and business fear (sometimes with good reason) that some people file fraudulent claims against their targets assuming that the claimants can get payments to make them go away.

In Ms. Ledbetter’s case, she demanded payment from Goodyear.  However, people who blame others may make no demands for many reasons.  Some believe that it wouldn’t be worth the effort because they believe that their demands wouldn’t be satisfied or the time and effort required would outweigh the benefit.  Some fear negative consequences such as retaliation or damaged reputations.  For some, the process of pursuing a remedy would keep them stuck in dealing with the problem when they would just prefer to move on with their lives.

Disputing – Pursuing Rejected Demands.  Some people respond to complaints by promptly taking action satisfying the complainants, at least enough for the complainants to stop pursuing their complaints.  Of course, some people reject the complaints in whole or part and the complainants continue to pursue the complaints.  Pursuing unsatisfied complaints is disputing.

In Ms. Ledbetter’s case, Goodyear did not satisfy her demands and she pursued the dispute all the way to the Supreme Court.  Sometimes unsatisfied complainants consult lawyers and/or file lawsuits, but not always.  In addition, complainants may drop complaints for many of the reasons that some people do not make complaints at all.

Empirical Data on Naming, Blaming, and Claiming.  The Miller and Sarat article presents data from the classic Civil Litigation Research Project about patterns of naming, blaming, and claiming in what they call “middle-level” disputes, i.e., those involving claims of at least $1000.  (When the data were collected in 1980, this was the equivalent of almost $3000 in today’s dollars.)  The article uses helpful graphics of pyramids to illustrate the patterns of attrition as some people who blame others do not complain, and some complaints do not turn into disputes, and some complaining disputants do not consult lawyers or file suits.

The following table shows how patterns of attrition vary in different types of problems.  The data refer to the percentages of situations for people who perceive injuries.  It shows the percentages of these situations that lead to complaints, disputes, and use of lawyers and court.

indisputably-133-why-dont-people-complain-table

 

 

The general pattern in the study was that 71.8% of grievances became complaints against others, 44.9% of the grievances were disputed, in 10.3% of the grievances the grievants consulted lawyers, and in only 5.0% of the grievances, the grievants filed lawsuits.

For situations that would be considered torts, there was a higher percentage of situations that turn into claims (85.7% vs. 71.8%) and a much smaller percentage that turned into disputes (20.1% vs. 44.9%).

The pattern in situations involving perceived discrimination was quite different.  There was a lower-than-average incidence of complaints (29.4% vs. 71.8%).  However, almost three quarters of discrimination complaints turned into disputes (21.6 / 29.4) whereas less than a quarter (20.1 / 85.7) of tort complaints were disputed.

What accounts for this difference?  For torts, the insurance system is designed to receive and resolve complaints and there generally isn’t much stigma or risk of retaliation for filing complaints.  For the large number of relatively small complaints, insurance companies and other defendants typically prefer to pay the claims promptly than spend resources disputing them.

People with discrimination grievances may doubt that they will receive satisfaction by making complaints.  Issues of discrimination often are ambiguous and difficult to prove. Filing complaints may invite scrutiny of the grievants’ own behavior.  Indeed, employees often are wary of being branded as “troublemakers” and this may be particularly true for discrimination complaints.  They risk subtle and not-so-subtle forms of retaliation, which could make their situations worse.  So the low rate of complaining should not be surprising.  People who have decided to complain presumably have decided to do so despite the risks just noted and once they have done so, they may be particularly determined to pursue their claims.

The data analyzed by Miller and Sarat is more than 35 years old but I suspect it generally reflects modern reality.  I haven’t looked for recent studies, but if you know of any, please share them in a comment below.

Complaining About Sexual Misconduct

Since the publication of the Access Hollywood tape of Mr. Trump’s comments about his interactions with women, a number of women have come forward publicly to describe what they experienced as sexual misconduct by Mr. Trump.  He has categorically denied all the claims, argued that the women have improper motives, and threatened to sue the complainants.  He has argued that the fact that they did not make any demands on him soon after the alleged incidents casts doubt on the veracity of their claims.  I do not express any opinion here about the merits of the particular claims about and by Mr. Trump.

Instead, let’s consider why people who perceive that they have been injured by sexual misconduct often would not make demands on the people who committed those acts.

The Trump controversies have prompted an outpouring of reaction by women who felt injured but didn’t press any claims as well as by analysts of these phenomena.   Columnist Dahlia Lithwick provided an historical review, which may be particularly useful for younger law students.

Clearly, many women identified with the experiences described by Mr. Trump’s accusers.  Soon after the Hollywood Access tape was released, author Kelly Oxford tweeted, “Women: tweet me your first assaults,” under the hashtag #notokayWithin a few days, 27 million people had responded.  Similarly, the hashtag #Whywomendontreport has also attracted a lot of responses.  Many women never told anyone of their perceived injurious experiences except perhaps some close friends or relatives.

In an article entitled Women Know Why Donald Trump’s Accusers Stayed Silent for So Long, Rachel Sklar wrote, “Women who dare to come forward to report stories of being sexually molested find their stories doubted, their behavior questioned, their credibility impugned.  Did they imagine it?  Do it for the attention?  Were they lying about it (because reporting sexual assault is always the path to riches and respect, right?)  Why didn’t they stop it?  The litany of responses is familiar by now:  You were flirting, weren’t you?  What were you wearing?  My, that was a short skirt.  Wait, were you drinking? Boys will be boys! . . . This is grotesquely magnified when accusations are leveled at famous or powerful men. . . . Not only are women expected to receive and submit, but they are expected to laugh off behavior that is otherwise invasive and threatening, to ‘not make a big deal’ about it.”

Mr. Trump’s attacks on his accusers reflect a general fear about complaining.  Liz Plank wrote that “Trump isn’t just trying to attack these women;  he’s signaling to others who may come forward.  By metaphorically naming and shaming them, and implicitly inviting his followers (who have a history of horrifying harassment) to do the same, he wants to terrify any other women from coming forward too.”  Indeed, Mr. Trump has threatened to sue his accusers.  This reinforces a message to women that it generally is dangerous to complain even when there aren’t explicit threats.

Slate writer Christina Cauterucci wrote, “Female friends and acquaintances, including several Slate colleagues, have told me that Trump has resurfaced deeply buried or forgotten memories of sexual assault, some stretching back to childhood. . . .Trump has also caused some women I know to rethink past sexual violations they’d previously explained away to themselves as misunderstandings or petty instances of ‘boys being boys.’  Trump’s talk and his accusers’ allegations are awakening long-dead zombies in our memories, forcing us to confront assaults we’d never labeled as such.”

The Miller and Sarat data and the recent outpouring of personal testimonies demonstrate the low level of complaining about perceived sexual misconduct and discrimination.

This is a serious problem for many reasons.  It is simply wrong that large classes of people feel injured but are too intimidated to present their claims.  This violates our notions of procedural justice, which are based on the assumption that people have reasonable opportunities to complain and be heard fairly.  Although some of unclaimed grievances may not be valid, presumably a substantial proportion of the grievances have real merit.  Even people with good-faith claims that are not valid are entitled to present them.  The wrongdoers’ pattern of behavior violates our social policy embodied in laws to protect people from sexual assault and discrimination.  Meritorious grievances that are not pursued constitute an undeserved transfer of wealth to wrongdoers from the people they have victimized.  And the low level of enforcement of legal protections effectively encourages people to continue a pattern of wrongful behavior because of the low probability that victims will complain.

These are complex problems that deserve serious efforts for social remedies.  These issues are beyond the scope of this post, however.

Implications for Defendants and Defense Counsel

In our legal system, parties are assumed to advance their own interests, not advance any other party’s interest or social policy.  Under the logic of the adversary system, it is up to would-be plaintiffs to complain if they wish, on the assumption that truth and justice will be produced through the adversary process.

This theory may approximate reality when the parties have roughly equal power and there aren’t serious impediments to use of the system.

The theory doesn’t work so well when there is a serious mismatch of power and social deterrents to use of the dispute resolution system as in the case of many sexual assault and discrimination grievances.

Of course, would-be defendants have no duty to encourage grievants to bring complaints against them.  Indeed, that would seem crazy in what Professor Jonathan Cohen calls The Culture of Legal Denial, 84 Neb. L. Rev. 247 (2005), where the “normal practice within our legal culture is for injurers to deny responsibility for harms they commit.”

Indeed, some defendants and their lawyers regularly use the Bart Simpson defense strategy: “I didn’t do it, nobody saw me do it, there’s no way you can prove anything!”

Defense counsel may take any legally permissible actions to resist charges against their clients.  ABA Model Rule of Professional Conduct 3.1 states:  “A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous . . ..”  Rule 4.4(a) states:  In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . ..”  Tactics that are not prohibited are permitted.

Mr. Trump frequently has used litigation, as documented by USA Today, and frequently has threatened suit, as he did with the accusers of sexual misconduct and the New York Times for publishing an article about two of the accusers.  The American Bar Association declined to publish a report on Mr. Trump’s litigation history reportedly out of fear he would sue them (though ABA officials say that the report violated its policy of being non-partisan).

According to the Washington Post, “When Donald Trump has needed a legal brawler, he has often turned to Marc Kasowitz, a hard-edged Manhattan attorney whose website cites a description of him as one of the most ‘feared lawyers in the United States.’” The general counsel for one of Mr. Kasowitz’s clients was quoted as saying, “When there’s a tough, call it rough-and-tumble kind of litigation, those are the guys I would go to. . . . They’re not afraid to get their hands dirty.”

Of course, many defendants and their lawyers routinely take tough positions in litigation, which is considered normal in our legal culture.  Should they act any differently in cases involving sexual misconduct or discrimination because of the greater vulnerabilities described above?

As a matter of legal ethics, going easier on such (would-be) plaintiffs would be problematic because of lawyers’ duty of loyalty to their clients.

Yet some lawyers may find it distasteful to aggressively litigate against such vulnerable parties, especially if they believe that their claims are valid.  Rule 1.16(b)(4) states that a lawyer may withdraw from representation if “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”  Although withdrawal is possible under these circumstances, probably very few lawyers take this route.

Practical Ethics Hypos

The following are hypothetical questions for law students to consider.  Although they might seem most appropriate in professional responsibility courses, they go beyond technical issues of legal ethics.  Professors might also use them in a range of legal practice courses as well as courses on gender, discrimination, and business operations, among others.

These questions involve businesses in which you, as their lawyer, have strong evidence that they have committed wrongdoing against vulnerable parties.  Although this post has focused on allegations against Mr. Trump, the following questions do not involve him because people have such strong feelings about him that responses may be colored by those feelings.

Instead, consider run-of-the-mill corporate giants or substantial mid-size firms.  Focus primarily on grievances by people who perceive that they have been injured by sexual misconduct or discrimination committed or approved by high-level business leaders.

In a case of alleged serious sexual misconduct that you believe occurred as alleged, which, if any, of the following tactics would you use?

  • Use the Bart Simpson strategy, essentially taking the approach for your client, “He didn’t do it, nobody saw him do it, there’s no way you can prove anything!”
  • Vigorously and visibly investigate the accuser’s past, in part to intimidate her from pursuing her claim.
  • Interview the accuser’s family, friends, and associates about the alleged incident, in part to embarrass the accuser and pressure her to drop the case.
  • Make public statements consistent with your legal position, challenging the accuser’s motives, character, and behavior.
  • Vigorously litigate the case, increasing the accuser’s costs and dragging out the process, in part to pressure her to accept a heavily discounted settlement.
  • Threaten to sue the accuser for defamation or actually do so.
  • Take actions that may violate the ethical rules but that are commonly used in practice and are unlikely to result in professional discipline or malpractice liability.

What other actions might you be willing to take or not in this case?  What principle distinguishes actions that you would or would not take?  How would your responses differ, if at all, if the case involved other issues such as fraud, product liability, health and safety violations that business leaders initiated or at least knew about and failed to stop and that involved plaintiffs with relatively few resources?

Now add the following assumptions to the preceding hypothetical case.  You are a recent law graduate, a year into practice, and you have a job with a law firm that regularly represents large businesses.  The job market is tight and you feel lucky to have your job.  You like your job and hope to become a partner in the firm by demonstrating your abilities and value to the firm and its clients.  You generally are comfortable with the positions your firm takes on behalf of its clients but you feel uncomfortable in this case.  You are afraid of the reaction by senior lawyers in the firm if you express your concerns or suggest withdrawing because the client is a major client for your firm and it adamantly wants to pursue a hard-line strategy to discourage other possible plaintiffs from filing suit.

How do these assumptions change your responses to the preceding questions, if at all?  What can you do to preserve both your professional opportunities and your personal integrity?

Discuss.

 

New Article: “When Interests Converge: An Access-to-Justice Mission for Law Schools”

These are challenging times in law schools.  Law school enrollments remain low and graduate unemployment remains high.  Many claim there are too many lawyers to go around and law schools are just making matters worse by continuing to educate prospective lawyers.  But the problem is not really that there are too many lawyers.  Indeed, roughly 80% of low-income and half of middle-income Americans face their legal problems without a lawyer.  Too many face their legal issues without the benefit of legal representation at a time when too many law school graduates are unemployed or underemployed.  In order to overcome this paradox, I argue in a forthcoming piece in the Georgetown Journal on Poverty Law & Policy,  that law schools should embrace an access-to-justice mission, one that would help focus law school teaching, scholarship, and service on the justice gap and help align the interests of those who want to ensure everyone has access to a lawyer who needs one with those who want law schools to continue the important work of educating the next generation of lawyers.  Below is the abstract to “When Interests Converge: An Access-to-Justice Mission for Law Schools.”  A draft can be downloaded here.  Comments welcome.

In recent years, law schools have faced a crisis brought on by the external forces of technology, automation, and legal process outsourcing that has translated into poor job prospects for their graduates, and, in turn, a diminution in the number of students interested in attending law schools.  Such external phenomena are joined by internal critiques of law schools: that they have failed to educate their students adequately for the practice of law and have adopted dubious strategies without a defining mission, all at a time when the market for legal services seems to be changing, perhaps dramatically. Paradoxically, while graduates face diminished job prospects, there is still a vast justice gap: the inability of millions of Americans to obtain legal assistance when facing a legal problem.  There is thus an interest convergence between those who might want access to a lawyer and the law schools that strive to educate the next generation of lawyers and the ones after that.  This Article uses this interest convergence—and the late Derrick Bell’s “Interest Convergence Theory” as a lens through which to view it—as an opportunity for law schools to retool their missions to confront the access-to-justice crisis facing many Americans.  It argues that law schools should embrace an access-to-justice component to their missions to help increase demand for legal services, re-establish the value of legal assistance to the community, restore the importance of the legal profession in preserving and extending societally important rights and interests, and improve the demand for legal education.

 

. . . because there is no social justice

Yesterday, I reviewed a student reflection that broke my heart a little bit. The student responded to my prompt, which asked her to comment on her summer work experience in the context of advancing social justice, by describing an intractable problem with her indigent client. She described hours upon days of work attempting to resolve an unjustified power shutoff for the client, and she ended her piece by explaining that she would continue to work with this case, this issue, and this client “because there is no social justice.”

My response to the student in part, was as follows:

As I sit here preparing to write a piece about the disintegration of our criminal “justice” system, prompted by yet another set of police homicides of men of color this week, your comment that “there is no social justice” certainly resonates with me. The need for us as lawyers, mentors and teachers to reflect with our students about that harsh reality, and to get up and do our jobs as public interest lawyers again the next day, is sometimes overwhelming. I share your frustration, which is not even the right term. I often feel in working with domestic violence victims in my clinic as if we are just rearranging deck chairs on the Titanic. The fact that we do not stop, though, is what keeps the ship of justice afloat. Battered, barely making it, but afloat. I fear it is at greater risk now than ever in this nation, though, and advocates like you will be critical to affect change from inside. Please keep doing what you are doing.

I like the sound of that metaphor about a ship of justice. But I’m frankly not sure if it is even apt.  What ship? What justice? As my colleague Leigh Goodmark noted yesterday, “As soon as I saw the news about Dallas this morning, I thought, I can’t. I just can’t face another day of violence and death and destruction.

That’s privilege. I don’t have to face the reality that when my son leaves the house, he might not come back. That my husband–or I– could be pulled over for a broken taillight and shot as we reached for identification. I don’t have to go into the streets to protest and die trying to protect my children from sniper’s bullets. Because I don’t live in black or brown skin, with a threat hanging over me every minute of every day.

That’s why we have to keep looking. Keep talking. Keep posting. Keep letting our friends of color know that we hear them, we see them, we value their lives, and we love them. Keep demanding better from our police, our government, ourselves. Our friends don’t ever get to say, I can’t. We shouldn’t either.”

Our privilege as law professors goes beyond skin color, but make no mistake, it is seeped in elitism.  Today I am using that privilege on this blog to say these words. That is all. It is not enough. It will never be enough. But I won’t stop. I don’t know if there is social justice. But I know there is a movement towards it, and I want to be a part of it.

 

Centering Justice in Legal Education Reform Discourse

Thanks to Mary Lynch for inviting me to post on this blog about my essay, Deep Critique and Democratic Lawyering in Clinical Practice, which was published in February by California Law Review. Over the course of my work on the essay over a few years, I have come to ask three main questions:

(1) How does the justice-seeking mission of clinical education persist in the face of the rapid expansion of experiential education and the imminent retirement of many of the founders of modern clinical education?

(2) Is there a progressive clinical response to the crisis of legal education in the aftermath of the great recession of 2008?

(3) How can legal educators preserve the public interest, justice-seeking values of the legal profession in the face of contraction, commodification, automation, and outsourcing?

The questions have gotten harder to answer as time has passed, as the post-Carnegie period of experiential expansion fell way to the economic crisis and then to the cyclical and structural breakdown of the market for legal services and the subsequent collapse of the markets for post-graduate employment and law school admissions. Initially, during the short expansionary period, my thought was that justice-oriented clinicians had to engage in the pedagogical excavation of their own work in order to defend it and to claim a share of the resources being allocated by law school administrators. The standard litany of clinical skills is incomplete and tends to favor an attenuated form of clinical practice that prevents clinics from participating in urgent struggles for social and economic justice ongoing in all of our communities. Both non-strategic individual service and private business-oriented clinical models take clinics out of community struggle and place them in service of a conservative political posture that has been maintained by law schools for many years. These approaches also subdue and suppress the justice aspirations of our students.

The necessity for lawyers to think structurally, suggested by Gary Blasi and further supported by Nisha Agarwal and Jocelyn Simonson in their survey of critical theoretical work, suggested to me the idea of “deep critique.” We want our students to think structurally, but how can we begin to think with them outside of what seems currently possible? As we see repeatedly in many areas of struggle, from police

devin allen

Photo credit: Devin Allen

violence to low-wage worker exploitation, liberal legalism doesn’t get us very far. We can teach our students that law is incomplete and inadequate as the sole response to various social crises. But how can we begin to consider responses outside of the liberal legal imaginary? In my experience, organizers have been the ones who have helped me to see both the value of the legal tools that we train our students to use and their use in moving us toward new worlds. I wanted to capture this quality of deep structural thinking that we aspire to develop with our students, hence, “deep critique.”

The second feature of complex, justice-seeking clinical practice that I thought worth bringing to the surface was easier to describe because of the prior synthetic work of Ascanio Piomelli. Piomelli draws from a wide range of poverty lawyering and critical theoretical sources to define a form that he calls “Democratic Lawyering.” Many clinicians have thought hard about the role of the lawyer in community. Democratic lawyering has stuck with me because of its central animating idea that lawyers may serve to support grassroots collectives in politics and to help them convert their political ideals and aspirations into political struggle in various realms, including protest, electoral politics, and policy and legislation. This was a second quality encompassing a fairly broad skill set that I believe should be added to the list of teaching goals to which legal educators gravitate.

The economic crisis and the subsequent challenges to the legal profession and legal education necessitate further consideration. Although clinicians have a great deal more security now than at any time in the past and clinics are seen as core curricular offerings at many law schools, the perception that clinical education is an expensive luxury is entrenched within legal education, especially when budgets are being shrunk. Bob Kuehn has taken this argument apart. However, it seems essential to me that clinicians go further and articulate an affirmative vision of reform that centers entrenched social problems and clinical practice as the core generators of contemporary legal education. Scholars such as William Henderson and Brian Tamanaha have made a significant impact on the discourse with their reform proposals, which largely make clinical education marginal and, to varying degrees, accept the breakdown of the legal profession as a given. Neither of their reform visions contemplate how legal education might preserve and advance the public, justice-seeking values of the profession. There is little contemplation in these largely neoliberal approaches to higher education of a professional exercising independent judgment in the performance of their duties to clients and the public. In an otherwise highly insightful book, progressive scholar Robin West views clinical education as actually setting back the agenda of critical legal analysis. Clinicians’ views are often dismissed as being focused on status; we are, therefore, burdened with an extra responsibility to lay an intellectual foundation for the centering of clinical practice in legal education.

My essay flags these challenges in the legal education reform discourse, without providing a comprehensive response. In many ways, it is a call to legal educators to begin to articulate reform visions from the standpoint of our client communities and our idealistic students. In the context of unprecedented social movement activity in the United States, it is incumbent on teachers to think creatively about how we might mobilize our educational institutions to support democratic engagement  and to think structurally outside of the box of liberal legalism. Legal educators must consider how we train law students and contribute to the construction of our evolving profession, one not solely defined by economic efficiency, but instead by core commitments to justice and the public good.

The Heart of a Justice

It’s interesting that, regardless of his conservative bona fides, Justice Scalia’s “best friend” on the court was Justice Ginsburg, one of the more liberal Justices.  The two, and their spouses, apparently socialized regularly.   As a law professor who works with students on a daily basis, I hope this aspect of Justice Scalia can provide a lesson to students and us all. This friendship of opposites demonstrates that a person’s humanity is measured by far more than the sum of one’s political views.

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