Book Review: Levin & Mather’s Lawyers in Practice: Ethical Decision Making in Context
posted by Stephen Galoob
Lawyers in Practice: Ethical Decision Making in Context, edited by Leslie C. Levin & Lynn Mather. University of Chicago Press: Chicago, 2012. pp. 370. $39.00
What is the best way to study the ethical world of lawyers? On a “top-down” approach, this study proceeds in two steps: first, we start with the rules of legal ethics (or, perhaps, the moral, legal or political principles that underlie those rules); second, we apply these rules and principles to particular cases that lawyers confront.
The infirmities of the top-down approach are a recurring theme of the essays collected in Lawyers in Practice. Most of the authors in this collection either champion or practice an alternative method, one that is inductive, or “bottom-up.” On this method, when studying the ethical world of lawyers, we should first examine how real-world lawyers confront real-life ethical challenges. In analyzing these responses, we should consider a variety of factors other than the rules or principles of legal ethics that drive lawyers to act in the ways that they do.
Thus, we can restate our opening question more precisely. When studying legal ethics, should we be top-downers, bottom-uppers, or both? Which is the more fundamental task: justifying the rules of legal ethics or explaining how lawyers behave when confronted with ethical challenges? Lawyers in Practice makes these broader questions salient. In this review, I want to offer a chastened case for a top-down approach, while recognizing the important (but ultimately complementary) role that bottom-up methods can play in studying the ethical world of lawyers.
Before exploring this broader topic, here are some vitals on the book. Lawyers in Practice is a collection of essays that were originally presented at a conference at the University of Buffalo Law School. Levin and Mather provide an introductory essay and short epilogue summarizing some main themes, and essays by David Wilkins and Elizabeth Chambliss explore some methodological issues for the sociolegal study of lawyers’ ethics.
The remaining 13 substantive essays depict on-the-ground ethical challenges faced by lawyers in different practice areas (or, in Levin and Mather’s phrase, various “communities of legal practice”). Each of these essays both summarizes extant research about the distinctive ethical challenges for lawyers in the practice area and identifies factors that explain how lawyers resolve these challenges. Each essay also presents new qualitative or quantitative data about its respective practice area. Some of these findings are surprising; others are expected, if lamentable. For example, in her substantive essay on immigration lawyers, Levin presents findings based on interviews with immigration attorneys suggest that many practitioners not only view the immigration system itself as unjust, but also take this unjustness as a warrant for introducing testimonial evidence of a client that they suspect (but do not know for certain) to be lying. (98)
All of the substantive essays are thorough, and many are revelatory. In particular, Herbert Kritzer’s essay on conflicts of interest in insurance defense is excellent. Extending his previous work on the topic, Kritzer provides a lucid summary of the ethical issues raised by the “perpetual triangle” of defending insureds while being paid by insurers. Kritzer also presents what, to my mind, were surprising findings about how insurance defense lawyers resolve these conflicts in practice.
Summarizing Lawyers n Practice raises an interesting and disputed question: do the ethical challenges faced by lawyers vary across substantive areas of practice in an analytically interesting way? Levin and Mather suggest that they do. Drawing on extant sociolegal literature, Levin and Mather codify a theme (which recurs throughout Lawyers in Practice) that the norms specific to different communities of practice, as well as structural features of the legal market that differ across practice areas, affect how lawyers behave. Yet, they argue, such variation is inconsistent with one-size-fits-all ethical rules (such as the ABA’s Model Rules of Professional Responsibility). (24, 382) Nor, by implication, are these patterns well explained by top-down approaches. Thus, Levin and Mather contend, an adequate study of the ethical lives of lawyers must at least include a bottom-up approach, and they imply that this inductive method is more powerful than a deductive one. (16)
Levin and Mather’s critique, if true, would be a very serious criticism of the way that legal ethics is taught and theorized. However, I think that there are several distinct arguments implicit in Levin and Mather’s critique. Some of their implicit arguments are both true and compatible with a top-down approach. Other of their arguments are irreconcilable with a top-down approach. Yet none of these more serious criticisms seems true.
Let’s address three of the arguments implicit in Levin and Mather’s critique. The first claim is:
Contextualism—ethical challenges and responses vary by contextual factors like client type, practice area, and structural features of the production of legal services.
Contextualism seems plausible, although it does not uniquely support a bottom-up approach to studying legal ethics. A top-downer could admit that how ethical challenges present themselves varies by the kinds of features identified in Contextualism, yet deny that different principles do or should apply to resolving these challenges in different contexts. Indeed, many top-downers (such as William Simon, W. Bradley Wendel, and Alexander Guerrero) offer sustained defenses of Contextualism.
A more provocative claim is:
Behavior—when studying the ethical world of lawyers, one should study how lawyers actually behave in response to ethical challenges.
Most of the essays in Lawyers in Practice focus on lawyer decision making, rather than direct evaluation of the norms that apply to lawyers. Thus, these authors either invoke Behavior or implicitly rely on it. Yet Behavior is basically inconsistent with a top-down approach to legal ethics. Rather, many top-downers would see normative considerations (like morality, justice, or legitimacy) as the basic unit of analysis for studying the ethical world of lawyers.
One problem with Behavior is that it cannot recognize what (after Noam Chomsky) we might call a “competence-performance distinction,” or the possibility that norm-governed behavior systematically diverges from what the normative considerations actually are. Take Levin’s example of immigration practitioners: it seems plausible to me that introducing testimony one suspects to be false might well be typical, yet unjustified. (If you don’t think that this example works, then substitute some other example.) Elizabeth Chambliss’s methodological essay in Lawyers in Practice appreciates this problem as one of setting a “normative baseline” for assessing lawyer behavior. Yet, if we accept Behavior, then there is no such normative baseline independent of what lawyers actually do.
In any event, a top-downer needn’t deny that the behavior of lawyers is relevant a normative assessment of legal ethics. Rather, the top-downer might (and probably should) see evidence about how lawyers actually behave as illustrating whether the norms of legal ethics are too demanding to follow. That lawyers find a rule of legal ethics too onerous would support, but not necessarily establish, that the rule is unjustified.
Here’s an even more provocative claim:
Description: the study of the lawyer’s ethical world is fundamentally a matter of describing prevailing ethical norms and practices, rather than justifying them.
Few of the contributors to Lawyers in Practice would explicitly endorse Description, although some implicitly do. Description would be anathema to a top-down approach.
Even so, there are good reasons to reject Description. If we accept Description, then we cannot recognize the possibility of a competence/performance distinction. Moreover, description is incapable of distinguishing ethical dilemmas from more garden-variety ethical difficulties. At the risk of being pedantic, a dilemma is different than a difficulty. In a dilemma, one is presented with two options, neither of which is the right answer (or both of which are the wrong answer). In a difficulty, by contrast, there is a right answer, even if acting on it might entail some cost or pain.
The essays of Lawyers in Practice raise a number of ethical challenges. Yet many of these seem to have correct answers, even if they are often not the ones that lawyers reach in deliberation or practice. Further, it is not clear whether these right answers differ across substantive practice areas, although this seems like an open empirical question.
Yet while Description is not an adequate substitute for normative analysis, one can see the former as nonetheless relevant to the latter. If ethical rules or principles are wildly at odds with ethical practice, then we can question whether these norms or principles are too revisionist or too demanding.
To summarize, we can reconcile Contextualism with a top-down approach to the study of lawyers’ ethics, and this combination suggests an approach that is simultaneously top-down and bottom-up. I think this combination is a good thing, and one that most of the contributors to Lawyers in Context would approve of. On the other hand, we cannot reconcile a top-down approach (even in modified form) with either Behavior or Description. However, I think there is good reason to deny both of these claims. Moreover, a top-downer can admit that behavior and description matter, even if Behavior and Description are rejected.
Lawyers in Practice is an excellent example of a bottom-up approach to studying the ethical world of lawyers. However, I remain convinced that this study must ultimately be top-down, even if they should be supplemented by bottom-up inquiries. Many of the central claims of the book seem both correct and important. Generally, facts on the ground (e.g., concerning how ethical conflicts arise and are resolved in practice) matter for determining which rules or principles should govern lawyers. Yet these facts matter because we are concerned about justifying the rules that govern the practice of law. This is a classically top-down concern. Regardless of whether we start from the top or from the bottom, though, there seems ample evidence for concluding that these rules and this practice fall short of their normative ideals. This conclusion should trouble us, no matter which route we take to arrive at it.
Stephen Galoob is a graduate student in the Jurisprudence and Social Policy program at the University of California-Berkeley.