The remarkable collection of papers in this special issue of the Hofstra Law Review grew out of Hofstra University School of Law\u27s third major ethics conference, which was held at Hofstra from September 9 to September 11, 2001. The papers are linked together by the broad theme expressed in the conference\u27s title: Legal Ethics: What Needs Fixing?
n this Foreword, I want to do three simple things. First, I want to talk about how Hofstra put the ethics conference together. Second, I want to comment on the connections between some of the papers. Third, I want to say a few words about the last day of the conference, September 11, 2001

Simon, Roy D.

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Hofstra Law's Scholarship

Hofstra Law Review Volume 30 Issue 3 Article 3 2002 Foreword: Conference on Legal Ethics: "What Needs Fixing?" Roy D. Simon Maurice A. Deane School of Law at Hofstra University Follow this and additional works at: https://scholarlycommons.law.hofstra.edu/hlr  Part of the Law Commons Recommended Citation Simon, Roy D. (2002) "Foreword: Conference on Legal Ethics: "What Needs Fixing?"," Hofstra Law Review: Vol. 30: Iss. 3, Article 3. Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/3 This document is brought to you for free and open access by Scholarship @ Hofstra Law. It has been accepted for inclusion in Hofstra Law Review by an authorized administrator of Scholarship @ Hofstra Law. For more information, please contact lawscholarlycommons@hofstra.edu. CONFERENCE ON LEGAL ETHICS:"WHAT NEEDS FIXING?"FOREWORDRoy D. Simon*The remarkable collection of papers in this special issue of theHofstra Law Review grew out of Hofstra University School of Law'sthird major ethics conference, which was held at Hofstra fromSeptember 9 to September 11, 2001. The papers are linked together bythe broad theme expressed in the conference's title: Legal Ethics: WhatNeeds Fixing?In this Foreword, I want to do three simple things. First, I want totalk about how Hofstra put the ethics conference together. Second, Iwant to comment on the connections between some of the papers. Third,I want to say a few words about the last day of the conference,September 11, 2001.I. How WE PUT THE ETHIcs CONFERENCE TOGETHERFrom the beginning, the idea behind Hofstra's ethics conferenceswas simple: Invite the leading figures in the field of legal ethics to writeoriginal papers on topics of their own choosing, guided only by aflexible and wide-ranging theme. Our first conference, held in 1996, wasentitled, Legal Ethics: The Core Issues! Our second conference, held in1998, was entitled, Legal Ethics: Access to Justice.2 This time, for our* Professor of Law, Hofstra University School of Law, and Director of Hofstra Institute forthe Study of Legal Ethics. Together with my colleague Monroe Freedman, I served as Co-Directorof the ethics conference on which this Symposium is based.1. The papers from the first conference were published in 1 J. INST. STUDY LEGAL ETHICS(1996) (available on Westlaw and LEXIS).2. The papers from the second conference were published in 2 J. INST. STUDY LEGALETHICS (1999) (available on Westlaw and LEXIS).1Simon: Foreword: Conference on Legal Ethics: "What Needs Fixing?"Published by Scholarship @ Hofstra Law, 2002HOFSTRA LAW REVIEW2001 conference, we chose the title, Legal Ethics: What Needs Fixing?We assembled a remarkable roster of speakers and asked them to choosetopics that deeply interested them. We then gave them the podium one ata time, for fifty minutes each, and reserved more than half of the allottedtime for questions and comments from the audience.The questions and comments from the audience were especiallypenetrating. Most of the conference faculty stayed for at least two daysof the conference, and Hofstra invited a series of Commentators whoseassignment was to probe, question, and challenge the speakers. TheseCommentators, all established scholars or practitioners in their ownright, included Professor Kathleen Clark of Washington University in St.Louis, Louis Craco of Willkie Farr & Gallagher in New York, ProfessorSam Dash of the Georgetown University Law Center, Professor JohnDzienkowski of the University of Texas, Professor Steven Hobbs of theUniversity of Alabama School of Law, Professor Peter Kostant of theRoger Williams School of Law in Rhode Island, George Kuhlman of theABA Center for Professional Responsibility, and Lucian Pera ofArmstrong Allen in Memphis, Tennessee. The Commentators did notwrite separate papers, but their ideas, together with the ideas of otherswho asked questions or made comments from the floor, are woven intothe papers you will read in this issue.II. CONNECTIONS BETWEEN THE PAPERSThe articles here span a wide range of issues, but many of themresonate and harmonize with each other like instruments in a symphonyorchestra. For example, Professor Geoffrey Hazard writes about theethical advantages of small and solo law practice in bygone days, whileProfessor David Wilkins and his co-researcher Elizabeth Chamblisswrite about ethical guidance today in large law firms. Professor BruceGreen, who chaired the New York State Bar Association Committee onProfessional Ethics for three years, writes about the problems andcontributions of bar association ethics committees, as do CarolLangford, a former chair of the California State Bar Committee onProfessional Responsibility and Conduct ("COPRAC"), and David Bell.Lawrence Fox, a former Chair of the ABA Standing Committee onEthics and Professional Responsibility, focuses on a single recent ethicsopinion that he believes is seriously mistaken. Professor Nancy Moore,Chief Reporter for the ABA Ethics 2000 Commission, talks aboutdrafting ethics codes for the twenty-first century, while Dean NancyRapoport asks whether bankruptcy lawyers need to draft their own[Vol. 30:6852Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 3https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/3FOREWORDspecial code of ethics. Professor Tom Morgan, a chaired antitrust lawprofessor and an Associate Reporter for the Ethics 2000 Commission,attacks the ABA and other players in the organized bar for using themantra of "core values" to disguise anticompetitive rules, whileProfessor Deborah Rhode, Chair of the ABA Commission on Women inthe Profession, chides the profession for continuing to toleratediscriminatory dual standards for male and female lawyers. ProfessorCharles Wolfram writes about the unauthorized practice of law by out-of-state lawyers who travel physically to serve the needs of clients in thenational economy, while Professor Catherine Lanctot writes about theunauthorized practice of law by nonlawyers who travel virtually andexploit the opportunities of the cyberspace economy.Other authors focus on more sinister topics. Professor SusanKoniak talks about lawyers who enrich their clients at the expense of thepublic by entering into secret settlements regarding dangerous products.Professor William Hodes talks about lawyers who enrich themselves atthe expense of their clients by charging contingent fees based on apercentage of the gross recovery. Professor Lisa Lerman writes aboutlawyers who enrich themselves at the expense of their partners and theirclients through fraudulent billing schemes.Other connections abound as well. Individual readers will match upthe various articles in their own idiosyncratic ways, finding similarthemes and concepts emerging in different papers. Finding theseconnections is what makes reading the conference papers especially fun,and it is what makes a Symposium issue a coherent whole rather than adisconnected stack of independent articles.III. SEPTEMBER 11, 2001The last day of our conference was Tuesday, September 11, 2001.The day began beautifully. We awoke to clear, deep-blue skies-whatairline pilots call "severe clear." The day before, during a luncheon onthe tenth floor of Hofstra's main library, many of us had gazed out thewindows to the west to see the Manhattan skyline, highlighted by themajestic Twin Towers of the World Trade Center.Shortly before 9:00 a.m. on September 11, the conferenceparticipants were finishing breakfast in a sunlit atrium and moving into aclassroom for the day's program. As we were about to begin the 9:00a.m. speech, a friend told me that a plane had hit the World TradeCenter, and she suggested I might want to announce it. I imagined a littlePiper Cub flying too low and accidentally clipping its wings on the200213Simon: Foreword: Conference on Legal Ethics: "What Needs Fixing?"Published by Scholarship @ Hofstra Law, 2002HOFSTRA LAW REVIEWbuilding (much like what happened recently in Milan, Italy). I wasfocused totally on the conference, and I saw no reason to distract theaudience with a routine news item. At about 9:05 a.m., when the crowdof about seventy-five people had settled in, I introduced our firstspeaker, Carol Langford, who described the challenges of her tenure asChair of the California State Bar's ethics committee. Everything in theroom seemed normal. The audience was alert and attentive, unaware thatthe outside world was in chaos, in the process of changing forever.At about 9:45 a.m., the law school's Vice Dean came in and pulledme aside. He told me that both of the Twin Towers had been hit, thePentagon had been attacked, other planes were unaccounted for, all airtraffic was grounded nationwide, and we would need to take a break.Ms. Langford, oblivious to all this, soon finished her presentation andanswered some questions from the floor. Then I announced the dramaticnews that the Vice Dean had told me and said we would be taking ashort break so that people could contact their families and friends.During the break, we began to learn the magnitude of what hadhappened outside. Students, lawyers, and law professors gazed indisbelief at the television in the student lounge. Hofstra had cancelledclasses for the rest of the day. Conference participants were franticallytrying to reach their loved ones. One out-of-town lawyer was desperatelytrying to reach his son, who worked in the Pentagon. Another lawyer,whose son worked in New York's financial district, could not getthrough on his cell phone and went home to check on his family. Otherscalled their hotels to see if they could check back in for another night.One by one, I canvassed the lawyers and professors who weresitting around the lounge and the atrium to see whether they thought weought to continue the conference or cancel it. Almost everyone wantedto continue. None of the out-of-town participants could fly anywheretoday, business as usual in America had ground to a halt, and manypeople wanted something to take their minds away from the unspeakabletragedy. And as one lawyer put it, "If we cancel the conference now, theterrorists win." We decided to go on with the conference. I reconvenedeveryone and said a few words about why we were continuing despite3the tragedy, and why the rule of law was more important now than ever.3. At the conference opening on Sunday, I was asked why Hofstra was taking the trouble tohold a three-day conference on legal ethics. I answered that our society depended upon the rule oflaw, and we wanted to make sure that lawyers, who are central to maintaining and enforcing the ruleof law, adhere to the highest ethical standards. On Sunday, it had seemed true but trite-a briefremark to get everyone's attention so that we could move on to the main speeches. Today, reverencefor the rule of law seems almost profound.[Vol. 30:6854Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 3https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/3FOREWORDAfter a couple of hours, Professor Tom Morgan got the programstarted again with a biting attack on the organized bar's cartel-likebehavior that elevates lawyers over all others and separates lawyers fromnonlawyers. 4 At lunch, Dean Burnele Powell, long active on many ABAcommittees and commissions, gave a powerful talk entitled So Obvious,Yet So Easily Done, listing a dozen things we could easily do to improvethe legal profession. The audience stayed riveted to his words for morethan an hour. Then a band of thirty or forty of us returned to theclassroom to hear Professor Catherine Lanctot discuss the practice oflaw in cyberspace. Finally, our last speaker mounted the podium.William Hodes, co-author of the Hazard & Hodes treatise on The Law ofLawyering, argued that we should outlaw the common practice (alreadyunethical in New York5 ) of calculating contingent fees based on thegross recovery rather than the net recovery. Although it was late in theday-we were running two hours behind schedule due to our unexpectedmorning break-the audience was still energetic and asked so manyquestions that Professor Hodes's presentation turned out to be thelongest one of the day. It was past 5:00 p.m. when the conference ended,and we finally gathered around the television to begin to absorb thestaggering magnitude of the day's events.Ordinarily, a report like this would end here, at the end of theformal program. But for those who attended the conference from out oftown-from Alabama, Arizona, California, Indiana, Maryland, Missouri,Oklahoma, Pennsylvania, Tennessee, Texas, Washington, D.C., Israel,and elsewhere-their most favorable impressions and most vividmemories of the conference began here. It is difficult to mount asuccessful national conference for hundreds of people, especially withthe law school's relatively small conference staff. Even with the expert4. In the middle of Professor Morgan's talk, a secretary came to get me to tell me that I had aphone call from my son, who was living in Japan. I ran two flights down to my office to take hiscall. He had been working out in a Japanese gym when a man ran over to him and said, almostincoherently, "Your country attacked. You pray. U.S.A. attacked." My son eventually found a TVnews broadcast in English and-ironically-he knew more about the developing events than I did.5. The New York Code of Professional Responsibility prohibits contingent fee terms thatviolate applicable statutes or court rules. See N.Y. CODE OF PROF'L RESPONSiBILrry DR 2-106(D)(2001). The applicable court rule in the Second Judicial Department states that the contingent feepercentage "shall be computed on the net sum recovered after deducting from the amount recoveredexpenses and disbursements." N.Y. COMP. CODES R. & REGS. tit. 22, § 691.20(e) (2001) (emphasisadded) (stating the rule for the Second Judicial Department). The First, Third, and Fourth JudicialDepartments have similar court rules governing contingent fees. See N.Y. CoMP. CODES R. &REGS. tit. 22, § 603.7(e)(3) (2001) (First Judicial Department); N.Y. COMP. CODES R. & REGS. tit.22, § 806.13(c) (2001) (Third Judicial Department); N.Y. COMP. CODES R. & REGS. tit. 22,§ 1022.3 1(c) (2001) (Fourth Judicial Department).2002]5Simon: Foreword: Conference on Legal Ethics: "What Needs Fixing?"Published by Scholarship @ Hofstra Law, 2002HOFSTRA LAW REVIEWassistance of Hofstra's highly experienced Cultural Center,6 the logisticsof scheduling rooms, meals, security, hotels, transportation, audio-visualequipment, airport pick-ups, handouts, and dozens of other details for athree-day conference are daunting. But now that the conference wasover, an even bigger challenge began-finding lodging, transportation,and communications for out-of-town guests in the wake of theSeptember l1th devastation. All planes were grounded; hotels werebooked full with other stranded travelers; the tunnels and bridges toManhattan were closed; the trains were not running. Yet Hofstra'soutstanding staff, especially Lilli Weinger, Nancy Rudolph, andCandyce Goldstein, rose to the occasion. They patiently took care ofeveryone who needed help. Several conference participants told me laterthat they had never felt as well taken care of as they did in the hands ofHofstra' s staff. In the wake of a tragedy, Hofstra shined. The papers thatfollow are merely the written record of a conference whose humandrama we will never forget.6. In addition to the legal ethics conferences, the Hofstra Cultural Center has presented andcontinues to sponsor extraordinarily successful academic conferences on such varied topics thatinclude the legacies of the Presidents, Babe Ruth, John Steinbeck, and Frank Sinatra.[Vol. 30:6856Hofstra Law Review, Vol. 30, Iss. 3 [2002], Art. 3https://scholarlycommons.law.hofstra.edu/hlr/vol30/iss3/3

Foreword: Conference on Legal Ethics:  What Needs Fixing?

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