The Promise of Client-Centered Professional Norms

In this year’s Saltman Lecture, Jennifer Gerarda Brown and Liana G.T. Wolf argue that restorative justice models have much to offer a broken attorney disciplinary system. While their specific proposals are problematic for reasons discussed more fully in this article, there is considerable merit to the authors’ larger point that the lawyer disciplinary system could benefit from incorporating a greater level of client participation. The authors point to a number of the benefits of a more client-participatory attorney disciplinary system, including the opportunity for lawyers to better appreciate the consequences of their misconduct, the opportunity to focus on repairing the harm done to clients, and the opportunity to restore the public’s faith in the fairness and legitimacy of the legal system. This Comment focuses primarily on an additional benefit that might flow from more client-participatory attorney disciplinary proceedings: by opening the disciplinary process to the perspectives of clients, the legal profession gets the opportunity to evolve more client-centered norms of professional conduct

Engaged Client-Centered Representation and the Moral Foundations of the Lawyer-Client Relationship

The field of legal ethics, as we know it today, has grown out of thoughtful, systematic grounding of lawyers’ duties in a comprehensive understanding of lawyers’ roles and the situating of lawyers’ roles in underlying theories of law, morality, and justice. Unfortunately, in the process, the field of theoretical legal ethics has mostly lost track of the thing that Freedman insisted was at the heart of a lawyers’ role: the integrity of the lawyer-client relationship. As I will discuss, the field of theoretical legal ethics has developed in ways that are deeply lawyer-centered rather than fundamentally client-centered. I am going to speak about how that happened. I am also going to share some of my ideas about what it would mean to ground a fundamentally client-centered conception of lawyers’ duties to represent a client zealously within the bounds of the law in moral, political, and jurisprudential theory

The Jurisprudential Turn in Legal Ethics

When legal ethics developed as an academic discipline in the mid-1970s, its theoretical roots were in moral philosophy. The early theorists in legal ethics were moral philosophers by training, and they explored legal ethics as a branch of moral philosophy. From the vantage point of moral philosophy, lawyers’ professional duties comprised a system of moral duties that governed lawyers in their professional lives, a “role-morality” for lawyers that competed with ordinary moral duties. In defining this “role-morality,” the moral philosophers accepted the premise that “good lawyers” are professionally obligated to pursue the interests of their clients all the way to the arguable limits of the law, even when doing so would harm third persons or undermine the public good. More recent scholarship in legal ethics has rejected the moral philosophers’ premise that lawyers’ ethical duties demand instrumentalist partisan interpretation of the “bounds of the law.” In what I call the “jurisprudential turn” in legal ethics, legal scholars are now increasingly looking to jurisprudential and political theory to explore the interpretive stance that it is appropriate for lawyers to take with respect to the “bounds of the law” that limit their partisan advocacy. Just as jurisprudential theories of adjudication ground judges’ duties of legal interpretation in the role of judges in a democratic society, jurisprudential theories of lawyering ground lawyers’ interpretive duties in analysis of the role lawyers play in a democratic system of government. This Article critically examines the emerging uses of jurisprudential theory in legal ethics. It argues that jurisprudential theory presents an attractive alternative to moral theory in legal ethics because it provides a rubric for limiting lawyers’ no-holds-barred partisan manipulation of law that springs directly from the lawyer’s professional duties rather than competing with them. It critiques the two major schools of thought in the “jurisprudence of lawyering” based on Dworkian and positivist jurisprudence. And it questions the common framework within each jurisprudential school, which assigns lawyers a role as case-by-case lawmakers, suggesting that this framework imposes an inappropriately lawyer-centered focus on assessments of the legitimacy of law that more properly belong to clients

Legal Education and Professional Skills: Myths andMisconceptions About Theory and Practice

Current critiques of legal education push law schools toward seemingly contradictory goals: (1) provide more practical training to a greater number of students; and (2) lower operational costs. This article addresses those who have a sincere desire to meet both goals. Although it offers a proposal for restructuring legal education, its primary focuses is on the mental and psychological barriers — the mistakes in thinking — that prevent law faculties from engaging in substantial. At the deepest level is a basic myth: that professional education can meaningfully separate theory from practice. This myth divides legal education into a series of dichotomies, viewing the traditional case method approach of instruction in legal education as teaching “doctrine” and lumps together all other kinds of instruction — legal writing, simulations, clinics, and externships — as teaching “skills.” It divides responsibility for the law school curriculum between “us” and “them,” significantly outsourcing lawyering skills instruction to adjunct professors or assigning it to faculty members in job statuses that give them less power and authority within faculty governance structures. This article challenges the basic myth by showing that what is traditionally thought of as “doctrinal” instruction regularly sacrifices breadth of doctrinal knowledge in favor of a particular kind of skills training: the ability to analyze appellate cases, to extract and synthesize their underlying principles, and to apply these principles to new situations. Conversely, what is traditionally thought of as “skills” instruction relies — like the Socratic method — on exposing the analytic frameworks that professional experts deploy as they identify client interests, analyze facts, negotiate, advocate, and problem-solve. Once we blur the sharp distinction between “doctrinal” and “skills” instruction, the need becomes clear to restructure legal education to expose students in law school to a much wider array of analytical skills that come into play in the lawyering process. The breakdown between theory and practice also erodes the justification for an “outsourcing” model of legal education and suggests the need for greater collaboration between the academy and the practicing bar in developing a more balanced model of legal education. The article concludes with some concrete suggestions for how legal education could be restructured to respond to these concerns by redeploying existing resources at law schools and realigning the partnerships between the legal academy and the practicing bar

Wrongful Convictions and Upstream Reform in the Criminal Justice System

The DNA exonerations of the late twentieth century spawned a reform movement arguably as influential in the American criminal justice system as the Warren Court criminal procedure revolution. The goal of innocence reform is to prevent wrongful convictions by increasing the reliability of criminal justice system operations. A basic tenet of the adversary system of justice is that an adversary trial will expose and correct factual errors with procedural tools, such as the exclusion of unreliable evidence, vigorous cross-examination of witnesses, and the introduction of expert testimony. However, DNA exonerations have undermined faith in the capacity of the adversary trial system to produce reliable results—shifting the focus “upstream” in the criminal justice system to earlier stages of law enforcement investigations. Upstream reforms target law enforcement investigative practices for improvements that will reduce or eliminate the production of unreliable evidence that will later need to be excluded, attacked, or explained at trial

Wrongful Convictions and Upstream Reform in the Criminal Justice System

The DNA exonerations of the late twentieth century spawned a reform movement arguably as influential in the American criminal justice system as the Warren Court criminal procedure revolution. The goal of innocence reform is to prevent wrongful convictions by increasing the reliability of criminal justice system operations. A basic tenet of the adversary system of justice is that an adversary trial will expose and correct factual errors with procedural tools, such as the exclusion of unreliable evidence, vigorous cross-examination of witnesses, and the introduction of expert testimony. However, DNA exonerations have undermined faith in the capacity of the adversary trial system to produce reliable results—shifting the focus “upstream” in the criminal justice system to earlier stages of law enforcement investigations. Upstream reforms target law enforcement investigative practices for improvements that will reduce or eliminate the production of unreliable evidence that will later need to be excluded, attacked, or explained at trial

Client Problem-Solving: Where ADR and Lawyering Skills Meet

Influenced by critiques of legal education, law schools are scrambling to offer more and better opportunities for experiential education. To fulfill the new demands for experiential education, one obvious place to turn is clinic pedagogy, which has developed methodologies for teaching students in the real-practice settings of in-house clinics and externships. As the interest in experiential education broadens, a wider spectrum of teaching methodologies comes under the experiential tent, creating opportunities to tap new sources of guidance for reshaping legal education. This article turns the spotlight on one of these other, less obvious resources within legal education: the alternative dispute resolution (ADR) movement. Like the lawyering skills movement in clinical legal education, the ADR movement has drawn from the wisdom of other disciplines to explain and theorize the practice of specific dispute resolution processes like mediation and negotiation. Perhaps more importantly, the ADR movement has provided important justification and elaboration of the underlying commitment to client-centered problem solving, which also animates much of the lawyering skills literature that has arisen from clinical pedagogy. This article traces the problem-solving focus through its development in the ADR movement and demonstrates the similarities between some of the key components of the ADR movement and clinical pedagogy. Finally, it explains how a law school can build on the synergies between these two fields to craft an experiential education program that uses client problem solving as its unifying theme, using the ongoing curricular reforms at Hamline University School of Law as an example

Experience the Future: Papers from the Second National Symposium on Experiential Education in Law: Alliance for Experiential Learning in Law

On June 13-15, 2014 the Second National Symposium on Experiential Educa­tion in Law took place in Greensboro, North Carolina. The Alliance for Experi­ential Learning in Law and Elon University School of Law hosted the symposium, with the support of Northeastern University School of Law. Presenters included professors and practitioners across multiple disciplines, in­cluding business, medicine, and architecture, and they shared their insights about the value of experiential education in their fields. Working from the Alliance for Experiential Learning in Law also presented their findings and distributed a set of working papers, which eventually culminated into this report. The report covers research in six areas of experiential warning, including defining a vision and mission for the experiential education movement, track­ing the developing rhetoric of experiential education, studying cost and sus­tainability measures for experiential legal education, integrating experiential warning into the law school curriculum, establishing creative initiatives at law schools, and integrating with the profession