Model Rule 8.4(g) and the Profession\u27s Core Values Problem

Model Rule 8.4(g) declares it misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. The American Bar Association (ABA) adopted the rule in 2016, in large part to effectuate the third of its four mission goals: Eliminate Bias and Enhance Diversity. The ABA adopted these goals in 2008, and they continue to serve as ABA\u27s statement of its mission. A substantial number of lawyers opposed the ABA\u27s adoption of Rule 8.4(g), most often on free speech and religious liberty grounds. Since its adoption by the ABA, lawyers have argued for and against state adoption of Rule 8.4(g), in part based on competing understandings of the core values at stake in this debate. References to the core values of the American legal profession emerged relatively recently. They are also often mentioned absent any particular definition. Not surprisingly, lawyers disagree about whether some normative declaration expresses a core value for American lawyers. They also disagree whether there exists a hierarchical ranking of core values, and if so, how to organize core values in tension with one another. In part, this represents a long existing debate among lawyers about how to fulfill one\u27s duties to client, court, third parties, and community. It also reflects a split among American lawyers. The American legal profession has been fractured along a number of axes for a long time. Private practice lawyers specialize in vastly different fields of law; they work alone, in Big Law, in government, in corporations, and in legal aid/public interest entities; they represent disparate types of clients, such as individuals and organizations, and within those hemispheres, they represent persons and organization with diverse legal needs and interests; they work in small towns and large cities; they earn millions and support themselves by taking second jobs; and they differ in their views regarding the usual subjects, politics, culture, and religion. Such a disaggregated group will struggle to form a consensus, much less an overwhelming majority, about what values lie at the core of a definition of lawyer, legal profession, the practice of law, or the lawyer\u27s duties. The Rule 8.4(g) debate may offer some insight into why the parties seem to speak past one another, and whether any core values are embraced across the divisions within the legal profession. Relatedly, the ABA\u27s shrinking membership reflects the difficulty of speaking of a (singular) legal profession, and the decline in the ABA\u27s influence indicates it is less likely to be able to generate a broader acceptance of specific core values as reflected in rules such as 8.4(g)

A Tribute to Gerald S. Geary Reamey

Geary Reamey began teaching at St. Mary\u27s University School of Law in the Fall 1982 semester. He will have taught for forty-one years at St. Mary\u27s when he retires in May 2023. Geary is known throughout Texas for his work, both as a speaker and as a writer, educating lawyers and judges about Texas criminal law and procedure. He is known among St. Mary\u27s Law alumni for creating and operating, along with the late John Schmolesky, a vibrant criminal law and procedure curriculum, including the first-year Criminal Law course

Making the Modern American Legal Profession, 1969–Present

The American legal profession has changed dramatically over the past half-century greatly due to the solution and problem of “scale.” This was most noticeable after the American Bar Association’s adoption of the Code of Professional Responsibility. The reputation of lawyers and the legal community would continue to evolve in the eyes of the public. As such, the demand for lawyers and large law firms who had the capacity and means to handle such vast and varied issues would present itself. The increasing demand from large law firms over the years led to unprecedented growth and impact to the way in which lawyers conducted themselves. The pressures of scale were felt in a firm’s numerical growth, income for lawyers, and specialization. Issues of scale are not limited to large corporate firms, but its rippling effects extend to non-corporate firms and the greater legal community. Scale presented negative effects on trials and the overall practice of litigation. Competition for legal work operated to make the profession more efficient but also pushes lawyers both to use scale to overwhelm adversaries and to tie lawyers tightly to the demands of their clients against any notion of public duties. As a result, increased scaling also affects our understanding of lawyer ethics. Over the years, the ABA would support and commission multiple efforts to understand and resolve ethical issues in the legal community. These initiatives sought to address the rapidly changing face of the practice of law, but the growth caused by scale is so rapid that the damage may have already been done. The pressures of scale in the legal profession are exponentially increased with an increase of substance abuse. Scale has made its way into the fabric of our legal community over half a century ago, and its effects are continually present

The Rise and Fall of Social Trustee Professionalism

Elite lawyers have long urged the private practice bar to account for the interests of more than their clients in their work. A lawyer who served merely as a mouthpiece or hired gun of clients failed to meet the standards of professionalism, of failing to act, in Roscoe Pound\u27s words, in the spirit of a public service. Pound\u27s view, expressed in the mid-20th century, was premised on the ideal that the lawyer pursued a public calling that incidentally was remunerative. This ideal required the lawyer to serve as a social trustee, one encumbered by duties for the benefit of society. Pound\u27s statement was embraced by the American Bar Association and elite lawyers as exemplifying professionalism. The lawyer as social trustee professional reached its apex in the mid-1970s. Within a decade, lawyers wrote lamenting the end of the profession of law, of its descent into a trade or business. This lament has continued for thirty years. This essay discusses the reasons for the fall of social trustee professionalism and why lawyers should not expect its return. It suggests some parallels with a crisis of professionalism that occurred in the late nineteenth and early twentieth century and why that crisis provides some insights into the legal profession\u27s present dilemma

Ethics in the Legal Industry

A brief item in the Hearsay section of the June 2017 ABA Journal was headlined 2%. This number indicated an increase in the percentage of lawyers, from 2012 to 2016, who worked remotely within the legal industry. Making one\u27s office a location other than the physical space leased or owned by oneself or by an employer is hardly news, even as applied to the work of lawyers. Lawyers know as well as anyone that technology allows one to work almost anywhere and, unfortunately, almost any time. What is striking in this brief news item is the use by the flagship magazine of the American Bar Association ( ABA ) of the phrase legal industry. Characterizing the work of lawyers as part of an industry is relatively new, particularly in legal publications. No definition of legal industry is found in the tenth edition of Black\u27s Law Dictionary, published in 2014, nor is one found in the latest (2012) edition of the Bouvier Law Dictionary. Only one published case, issued in 2012, has used legal industry as a synonym for legal practice or legal profession. That decision was written by the New York Supreme Court, a state trial court, on the issue of a claim of fraud in the published employment data of the defendant law school\u27s graduates. Outside of a 1976 law review article, references in law reviews to the work of lawyers as part of an industry rather than a profession, a service, or a practice are rare before the turn of the millennium