SOCIALIZING THE LEGAL PROFESSION: Can Redistributing Lawyers' Services Achieve Social Justice?

Redistributing laywers' services is a principal focus of efforts to reform contemporary legal systems. Such reforms generally attempt to modify the market distribution in oneof two ways: by subsidizing lawyers for the unrepresented, or by rendering lawyers unnecessary through deprofessionalization. This essay analyzes the contribution that redistribution could make to social (rather than formal) justice by extrapolating the consequences of the greatest conceivable redistribution: a socialization of the profession that would withdraw lawyers from those who presently purchase lawyers' services, while simultaneously subsidizing lawyers for the unrepresented. It then turns to the political prospects forsocialization. Concluding that socialization appears either feasible nor likely to attainsocial justice if it were possible, the essay reflects on the implications of continued pursuit of reformist goals.     

Changes in Lawyers' Earnings: The Impact of Differentiation and Growth in the Canadian Legal Profession

The relatively greater numbers of young, female, and salaried lawyers are said to have diminished the legal profession's control of the market for its services, and hence of its income and status. This article examines the effects on lawyers' real earnings attributable to the rapid change in size and composition of the legal profession in Canada during the 1970s. An analysis of the components of inter-temporal earnings differences, which takes account of changes in composition and in the remuneration or pay structure, shows that the unprecedented growth in lawyer supply was responsible for most of the decline in lawyers' real earnings. But lawyers who were young, female, salaried, or in government service avoided this negative market effect, while lawyers who were male, self-employed, or outside the major financial centers, bore most of the negative economic impact of the rapid supply growth.     

Guardians at the Gate: The Backgrounds, Career Paths, and Professional Development of Private US Immigration Lawyers

This article presents findings from a qualitative study of seventy-one New York immigration lawyers who are engaged in private practice. It focuses on the lawyers' backgrounds, career paths, and early professional training and describes, inter alia, the unusual diversity of this bar, the lawyers' reasons for practicing immigration law, the ways in which they learn to practice law, and the strong sense of community within the private immigration bar. It uses the idea of communities of practice to help understand how lawyers learn from their colleagues and are influenced by them. The article identifies several factors that may contribute to the supportiveness of the bar and the strong sense of community within that practice specialty, notwithstanding its great diversity. It concludes by making some preliminary comparisons between immigration lawyers and lawyers in other practice specialties and by identifying some questions for future study.     

侦查阶段律师辩护工作的理性思考

律师参加刑事诉讼、介入侦查阶段,是现实需要,也有充分的理论根 据,但实际状况不尽如人意。如介入会见难;以“有碍侦查”、“国家秘密”而阻滞律师 介入;存在辩护风险,等等。因此必须对律师在侦查阶段的法律地位、单独会见权、讯 问在场权,以及辩护豁免权等问题进行研究,确保律师辩护的作用。     

Should lawyers listen to philosophers about legal ethics?

In the recent spate of philosophers' writing on legal ethics, most contend that lawyers' professional role exposes them to great risk of moral wrongdoing; and some even conclude that the role's demands inevitably corrupt lawyers' characters. In assessing their arguments, I take up three questions: (1) whether philosophers' training and experience give them authority to scold lawyers; (2) whether anything substantive has emerged in the scolding that lawyers are morally bound to take to heart; and (3) whether lawyers ought to defer to philosophers' claims about moral principle. I return a negative answer to each.Excerpts from a earlier draft have appeared in A. Kaufman, Problems in Professional Responsibility, (Boston: Little, Brown, 3rd ed. 1989) pp. 758–65. Thanks are owed to Steve Munzer and to Andy Kaufman for their encouragement and advice.     

Advertising and the Price and Quality of Legal Services: The Case for Legal Clinics

Because the holding in Bates v. State Bar of Arizona is narrow and because some lawyers remain opposed to advertising, the dispute over lawyer advertising continues. Many who favor restricting advertising contend that it will not benefit consumers. They argue that prices must either rise to cover the cost of advertising or, if prices do fall, that quality must also drop.
This article addresses itself to both charges. The first section is theoretical, demonstrating how advertising could lower the costs of producing legal services. Advertising increases the volume of services a lawyer can expect to sell. Greater volume, in turn, allows greater specialization in production, more effective use of systems management, and the substitution of paralegals and capital for lawyer inputs. The authors argue that each of these changes will lower costs, thereby lowering prices without necessarily reducing quality. The second section is empirical, comparing the prices and particularly the quality of services produced by a heavy advertiser, the Legal Clinic of Jacoby & Meyers, and the traditional firms in the Los Angeles market with which the clinic competes. Quality is defined both subjectively and objectively, and original data are presented indicating that the quality of service that the clinic supplies is at least equivalent, and on some measures better, than the quality of service that traditional firms provide.     

The Practice of Law as an Obstacle to Justice: Chinese Lawyers at Work

This article helps strengthen our comparative and theoretical understanding of lawyers as gatekeepers to justice by analyzing the screening practices of lawyers in a non-Western context. The explanation for Chinese lawyers' aversion to representing workers with labor grievances focuses on their own working conditions, on the organization of their legal labor, and on their evaluations of the moral character of prospective clients. By linking the screening practices of Chinese lawyers to their socioeconomic insecurity and to popular stereotypes informing and legitimating their screening decisions, this article identifies institutional and cultural obstacles not only to the official justice system but also to cause lawyering. After establishing motives for screening clients, this article then demonstrates lawyers' screening methods: by defining legal reality in strategic and often misleading ways, lawyers use the law as a weapon against the interests of the individuals who seek their help.     

Trickster, Hero, Helper: A Report on the Lawyer Image

This study presents evidence that there are three distinct images of lawyers that are held by both lawyers and the public. The lawyers' professional subculture and values are explored through examination of the three images and their interrelationships as seen from differing perspectives. Implications are drawn concerning issues of lawyer identity, social responsibility, lawyer-client relations, and the unity of the bar. The images are related to other symbolic structures, including the adversary system, the family, and Western myth.     

'Mind with Mind and Spirit with Spirit': Lord Denning and African Legal Education

Lord Denning played an important role in the establishment and development of legal education and lawyers' training in Africa from the late 1950s onwards. By exploring this involvement it is possible to add to existing work on Denning's vision of the role of law and legal professionalism. In post-colonial Africa, order and stability were best assured by a cadre of lawyers imbued with the virtues characteristic of English practitioners over the centuries. These ineffable qualities could only be apprehended through direct contact with English lawyers and, to a lesser extent, law teachers. These views are born of the tension between universalism and nationalism in Denning's legal thought.     

Client Influence and the Contingency of Professionalism: The Work of Elite Corporate Lawyers in China

This study examines how the professional work of elite corporate lawyers is constructed by influence from different types of clients. The data presented include interviews with 24 lawyers from six elite corporate law firms in China and the author's participant-observation in one of the firms. For these elite Chinese corporate law firms, foreign corporations, state-owned enterprises, and private enterprises constitute their extremely diversified client types. Accordingly, lawyers' work becomes flexible and adaptive to accommodate the different demands of the clients. Meanwhile, client influence on lawyers' professional work is mediated by the division of labor within the corporate law firm: whereas partners have solid control over the process of diagnosis, inference, and treatment and thus enjoy a high degree of professional autonomy, associates are largely stripped of this cultural machinery in the workplace, and their work becomes vulnerable to client influence. As a result, client influence on professional work appears to decrease with a lawyer's seniority.     

论司法行政机关与律师自律组织之关系

我国的律师监管体制经历了从单一司法行政管理阶段到行政管理和行业管理相结合的阶段.在不断加强和规范律师协会的行业自律管理的同时,我们必须看到律师协会行业管理的不足.为了克服律师协会自律管理的不足和缺陷,司法行政机关应该把管理重点从直接管理律师转变到管理律师自律组织上来,这样才能够形成行政管理和自治管理良性互动的律师管理模式.     

The professional responsibility of lawyers: emotional competence, multiculturalism and ethics

Traditional legal education and the Socratic method it utilises are by and large successful at training lawyers to think, reason and analyse. The cultivation of lawyers' intrapersonal and interpersonal skills, however, has been, at best, neglected by the profession. All lawyers, like all human beings, are emotional. Emotions affect who they are and how they practise law, whether or not they are conscious of them. As emotions cannot be removed from the practice of law, it is essential that lawyers learn to understand and manage their emotions, as well as learn to be attuned to their clients' emotional lives. Ignorance of concepts such as countertransference, denial and unconscious bias adversely impact the lawyer-client relationship. Lawyers who understand basic psychological principles and behaviours, who are aware of their own psychological makeup, understand their cultural perspective and recognise and credit their clients' differences, will enhance their effectiveness as counsellors. The client whose lawyer has these competencies will enjoy a therapeutically superior counselling or representational experience. The neglect of either the lawyer's or the client's emotional life threatens to sabotage the lawyer's ability, and thus professional responsibility, to render competent and impartial legal advice. Through drawing parallels to the training and practice in other counselling disciplines and relationships, this article argues that psychological-mindedness and multicultural competence are essential elements of ethically responsible legal representation.     

The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers

Recent data on lawyer participation in pro bono have suggested that such work flows from the intrinsic value one derives from volunteering as well as from workplace characteristics of those who provide pro bono service. This finding would imply that pro bono emerges not merely from individual personality traits but that the workplace environment structures motives and incentives for pro bono work. Such a finding points to a need to disentangle the effects of diverse workplace settings on the construction of different vocabularies of motive for engaging in pro bono work. In this article I employ an institutional framework to examine the impact of the workplace environment on participation in pro bono work among lawyers. Survey data were collected from 474 lawyers who graduated from three law schools that have mandatory pro bono requirements. Results indicate that lawyers' meanings of pro bono as well as their motivations for doing such work and the benefits they attribute to such work vary across workplace settings. These results are discussed in relation to institutional theory.     

法律职业化与司法现代化关系的若干理论问题

法律职业化与司法现代化的共同理论语境是现代性理论 ,共同实践背景是法制现代化运动。法律职业化意味着一个经过法学理论熏陶和法律知识传授之法律职业家共同体的形成 ,这个职业家共同体共享法律价值并娴熟于法律技能。司法现代化作为法制现代化的一个重要组成部分 ,倡导并通过现代司法制度确认司法独立、程序正义、程序效率等基本价值准则。法律职业化与司法现代化之间的理论关联可以从法律与经济关系、司法独立与程序正义、司法制度资源供给与分享、法律作为科学学科和知识体系、司法效率实现等多种维度进行分析和把握。     

Types and Causes of lawyers' Professional Liability Claims: The Search for Facts

Lawyers have become concerned about the rising numbers and the rising amounts of professional liability claims, which have in turn driven up liability insurance premiums and temporarily even caused an alarming contraction in the supply of insurance coverage. This article examines the state of factual information that could be used to measure and explain the development. It goes on to discuss the potential role that increased knowledge of the types and causes of professional liability claims could play in efforts to reverse the development, followed by a discussion of the difficulties of obtaining usable data from the two principal potential sources—lawyers and their insurers. The second half of the article describes and evaluates the work of the American Bar Association's Special Committee on Lawyers' Professional Liability in developing, in cooperation with the major insurers, a comprehensive data collection and reporting system for lawyers' professional liability claims.     

Divorce Israeli Style: Professional Perceptions of Gender and Power in Mediated and Lawyer-Negotiated Divorces

This study examines how the power of women is constructed by divorce professionals in a divorce process that is governed by rabbinical family law, the egalitarian ideology of the recently established family courts, and the growing use of mediation in divorce disputes. It is based on 254 questionnaires and 57 interviews with lawyers, mediators, and lawyer-mediators. We found that except for a minority of women lawyers, practitioners claimed that women were not disadvantaged by family law, and that mediation does not adversely affect weaker parties. However, their reactions to hypothetical situations indicated that rabbinical law does matter for women's bargaining power, and for lawyers' recommendations for mediation. This study reveals the complexities of the social construction of gender and power in divorce negotiations and the role of women professionals in empowering divorcing women.     

Mock-juror belief of accurate and inaccurate eyewitnesses

In response to lawyers' critiques of earlier staged-crime, mock-jury studies, 16 eyewitnesses to a staged crime were videotaped while being questioned by lawyers in a real courthouse. Accurate and inaccurate eyewitnesses were questioned by experienced or inexperienced lawyers for the prosecution and defense. Subsequently, 178 University of Alberta undergraduates served as mock-jurors and attempted to detect the accuracy of the witnesses based on their taped testimony. As in the previous research, the overall rate of belief was quite high (69%), and the subjects believed the testimony of accurate and inaccurate eyewitnesses at about the same rate (68% vs. 70%, respectively). Lawyers' experience failed to influence verdict. Confidence of the eyewitness was significantly related to belief of their testimony. The data replicate the previous findings and demonstrate that lack of expertise of the questioners does not account for the failure to detect eyewitness accuracy in this paradigm.The authors wish to thank 36 lawyers and senior law students from the Kingston area who donated their time. The research was supported by a grant to the first author from the Social Sciences and Humanities Research Council of Canada.     

Referral Practices Among Lawyers: A Theoretical and Empirical Analysis

This article analvzes referral practices among lawyers. The hypothesis is that the market for legal services is "efficient," that is, market forces enable plaintiffs in personal injury cases to maximize their recoveries, given the quality of lawyers representing defendants. If this market is indeed efficient, one would expect that legal claims which would benefit most from high-quality legal services would be assigned to high-quality lawyers. The evidence shows that referrals enable claims to be matched with lawyers in just that way. That is, through the mechanism of referrals, claims of greater intrinsic value are assigned to lawyers of higher quality.
The paper also provides a model of the decision a generalist must make: to litigate a case himself or refer it to a trial specialist. The implications of the model support the hypothesis that this market is efficient in the sense defined above.     

The Changing Structure of Opportunity: Recruitment and Careers in Large Law Firms

Growth and bureaucratization have begun to transform patterns of recruitment and career development in large law firms. Based on a case study of four large Chicago firms, this article examines these changes and their implications. The findings indicate that the social composition of large firms has become substantially more heterogeneous with respect to the status of law school attended, gender, and ethnoreligious background. However, data on lawyers' careers suggest that associates entering firms today face an increasingly bureaucratic organizational context marked by higher levels of turnover, earlier and more intensive specialization, decreased levels of client responsibility, and more frequent assignment to large-scale litigation. The article also addresses the dynamics of individual choice over type of work performed in firms. Lawyers initially working in litigation fields are far more likely to change fields of practice than are lawyers who begin in office practice fields, reflecting the increased tendency for firms to assign new associates to litigation as well as the alienating propensity of large-firm litigation for many associates. Paradoxically, a greater proportion of lawyers in traditionally organized, general service firms than in bureaucratically organized, specialty firms report that their choice of work was dictated by the firm. Also, somewhat surprisingly, the frequency with which firms explicitly direct lawyers into particular fields has not increased from earlier periods. The article concludes that these anomalies result from the fact that firms control the career choices of lawyers, and always have, but that the way such control is exercised varies across firms and historical periods.