Justice and Legal Ethics
Access to Justice and Legal Ethics
Test Your Knowledge: True or False?
- Because there are so many lawyers in the United States, almost everyone can afford a lawyer to
represent them in a civil case. - Lawyers are prohibited from advertising because this may result in misleading of the public by
unscrupulous attorneys. - Lawyers may not enter into contingent fee arrangements in civil cases in which they only are paid if they
win or settle the case. - Legal insurance plans that provide legal representation to individuals who pay into the plan are
prohibited in most states. - The Legal Services Corporation is a large business that provides assistance to paying clients across the
country. - Lawyers are prohibited from providing pro bono (free) legal services because it harms the income of
lawyers. - Cause lawyering refers to lawyers who work on behalf of social and political causes that they consider
important. - The primary reason that individuals who are non-lawyers may not represent themselves is because this
interferes with the monopoly of lawyers over legal services. - Lawyers may lose their law license for committing a crime but may not lose their law license for
violating the code of ethics.
Check your answers on page 214.
Introduction
This chapter reviews various efforts to meet the legal needs of the working and middle classes.
Attorneys may advertise their services, offer to represent clients on a contingent fee basis, or
organize legal insurance plans. The economically disadvantaged may be able to obtain legal
representation through the Legal Services Corporation or through pro bono representation.
Individuals also are entitled to represent themselves in court. A small sector of the legal profession
represents clients who share their ideological commitment and are less interested in making money
than in advancing a political cause.
The last portion of the chapter discusses the mechanisms for ensuring that the legal profession
maintains the required ethical standards and lawyers responsibly represent their clients.
For additional information on admission to law school, the law school experience, and bar
admission, please see Appendix A online at edge.sagepub.com/lippmanls3e.
Lawyers, Clients, and Access to Justice
Public opinion polls indicate 80 percent of Americans believe the U.S. justice system is the “best in
the world” and provides equal justice under law. The public also recognizes that wealthier
individuals and corporations are able to afford a higher quality of legal representation than the
average individual. The American Bar Association (ABA) has sponsored several studies on the
“legal needs of the public.” These studies have concluded that the public has unmet legal needs that
could be remedied if brought to court by a lawyer. Stanford law professor Deborah Rhode writes
that “equal justice under law” is one of America’s “most proudly proclaimed and widely violated
legal principles” (Rhode 2004: 3).
Consider the results of a frequently cited 1994 study conducted by the ABA Consortium on Legal
Services and the Public (see Table 5.1). An updated analysis is discussed in the text
following Table 5.1.
Table 5.1 Findings From ABA Consortium on Legal Services and the Public
Table 5.1 Findings From ABA Consortium on Legal Services and the Public
Legal problems There are a significant number of unmet legal needs among low-income and
moderate-income households.
Legal needs
The most common response for low-income and moderate-income
Americans confronting a legal issue is to attempt to remedy the situation
themselves or to take no action.
Nature of legal
needs
The most common legal needs are related to personal finances (e.g., credit
cards), consumer issues (e.g., substandard repairs), and housing.
Reasons for not
pursuing legal
remedies
Low-income individuals explain they do not pursue legal remedies because
of the expense and skepticism whether legal remedies will be effective.
Moderate-income individuals tend to believe that they can handle a situation
by themselves and that the problems are not sufficiently serious to bring to
court.
Satisfaction
Nearly 50 percent of low-income individuals and 64 percent of moderateincome individuals who pursued a remedy in the civil justice system were
satisfied with the result.
In 2014, an American Bar Foundation report detailed a “latent legal market” defined as an
“untapped” need for legal services. Two-thirds of a sample of adults reported at least one of twelve
different civil justice issues. The average individuals confronted between 2.3 and 3.3 situations.
These issues involved “bread and butter” concerns such as employment, debt, pensions, insurance,
health care, and housing. The indigent and minorities were most likely to experience problems and
were twice as likely to do nothing as compared to individuals in moderate-income households. The
study found that 46 percent of people address civil justice problems themselves, 16 percent do
nothing, 16 percent received help from family or friends, and 15 percent approached a lawyer.
Individuals surveyed when asked why they did not seek legal assistance for various problems
explained that they did not view the problem as “legal” and did not believe that their problem had a
“legal solution.” Most individuals believed that they were confronting a situation of “bad luck,”
“part of life or part of God’s plan.” The general belief was that even problems that clearly raised
legal issues should and could be handled by individuals themselves (Sandefur 2014).
In 2016, the ABA Report on the Future of Legal Services noted that four-fifths of the needs of the
poor and a majority of the legal needs of middle-income Americans are unmet. As many as one
hundred million Americans are living with civil justice problems, many of which involve “basic
human needs” relating to housing (eviction), food (denial of governmental benefits), safety (the
need for a restraining order), health (insurance issues), and parental rights (child custody). In Utah
in 2014, 98 percent of defendants in nearly sixty-seven thousand debt collection cases were
unrepresented by lawyers in cases in which 96 percent of the plaintiffs were represented by
lawyers; 97 percent of defendants in eviction cases represented themselves against landlords, all of
whom were represented by a lawyer (American Bar Association Commission on the Future of
Legal Services 2016).
In 2015 in New York State, nearly one-third of state court civil cases were foreclosure actions in
which individuals risked losing their home. Forty percent of these individuals were unrepresented
by legal counsel. In the same year, in eviction proceedings in New York City Housing Court, 70
percent of tenants were unrepresented by legal counsel (Rakoff 2015: 4). Ninety percent of parents
in child support cases were unrepresented by a lawyer (Sandman 2019).
Surveys conducted by the ABA and National Center for State Courts find that the financial cost of
a lawyer, along with the cost of missing work and arranging for child care, was an important factor
in individuals confronting what they recognized as a legal issue themselves. Other causes for not
seeking legal assistance were the slow-moving and frustrating legal process, a sense of being
disrespected, and a distrust of lawyers (Sandefur 2014).
What difference does it make if an individual is represented by a lawyer? Former federal judge Jed
Rakoff writes that in a mortgage foreclosure action, an individual who is without legal
representation is twice as likely to lose his or her home. A victim of domestic violence who is
unrepresented by a lawyer is 50 percent less likely to obtain an order of protection. Surveys of state
and federal judges indicate that they are “quite certain” that individuals who are without legal
representation “fare far worse” than individuals who are represented by a lawyer (Rakoff 2015: 4).
In a study of New York City Housing Court, Carroll Seron and her colleagues write that the
findings “clearly show” that when low-income tenants are provided with legal representation, they
“experience significantly more beneficial . . . outcomes” than individuals who represent
themselves. Lawyers also increased the efficiency of the housing court by limiting delays and
unnecessary legal motions (Seron et al. 2001).
Lawyers also can assist individuals in addressing the problems they confront and assist them in
obtaining Social Security Disability benefits, discharging student loans, securing an order of
protection against a domestic abuser, obtaining a divorce settlement for a victim of domestic
violence, and compelling a landlord to bring a rental up to code (Sandman 2019: 113–115).
The Conference of Chief Justices of state courts concluded that unrepresented individuals harm the
justice system by clogging the courts and causing delays and making it more difficult to settle cases
prior to trial (American Bar Association 2016).
In 2006, the ABA House of Delegates adopted Resolution 112A asking state legislatures to provide
legal representation to low-income individuals when basic human needs are at stake.
The U.S. Supreme Court in Gideon v. Wainwright interpreted the Sixth Amendment to the
Constitution to require legal representation for individuals in criminal prosecutions in which an
individual faces the prospect of imprisonment (Gideon v. Wainwright, 372 U.S. 335 [1963]). The
Court, however, has not extended this same right to individuals in civil cases. In Lassiter v.
Department of Social Services, the Court held that due process did not require that the state provide
legal representation to an inmate confronting a hearing for loss of parental rights (Lassiter v.
Department of Social Services, 452 U.S. 18 [1981]). In 2011, the Supreme Court rejected the claim
that the state was required to provide legal representation to an individual who was held in civil
contempt and jailed for one year as a result of a failure to pay child support (Turner v. Rogers, 564
U.S. 431 [2011]). State courts also have resisted creating a state constitutional right to
representation in civil cases or what is called a “civil Gideon.”
Several local jurisdictions and state legislatures have passed laws providing for publicly funded
lawyers for low-income individuals in litigation regarding housing, child custody, and child
support. The ABA estimates that a right to civil counsel in cases involving basic human needs
would cost $4.2 billion or 1.5 percent of the existing expenditures on lawyers spent by private
individuals and businesses (Brito 2019).
In the next sections, we briefly review three efforts to increase access to legal services: advertising,
contingent fees, and group legal services plans. In our discussion of criminal courts in Chapter 7,
we will look at representation in criminal cases.
Advertising
You are arrested for driving while intoxicated or for a minor fight at a party, or you are sued by
your landlord. How will you find a lawyer you can trust? Most of you undoubtedly will ask a friend
or a relative for a recommendation. You also might be watching television and notice a lawyer
advertising his or her services or see an advertisement in a school newspaper. Does it strike you as
strange to see lawyers advertising their services?
Advertising by lawyers was a common practice during the early twentieth century. Elite lawyers
decided to put a stop to this and, in the 1930s, supported a prohibition on advertising. Lawyers in
firms were able to rely on a steady stream of business from their corporate clients and wealthy
individuals and considered such advertisements demeaning to the profession and inconsistent with
the professional stature of lawyers (Abel 1989: 125).
It took almost forty years for solo practitioners and lawyers in small firms to reverse the prohibition
on advertising. The key developments that ushered in this change were a series of U.S. Supreme
Court cases that struck down bar association rules that limited the ability of lawyers to compete for
clients. In 1975, the Court ruled that a local Virginia bar association was restraining competition by
requiring that lawyers charge a minimum fee for handling home sales. The result of the bar
association’s policy was that no lawyer in Fairfax County, Virginia, would handle a sale for less
than 1 percent of the value of the home (Goldfarb v. Virginia State Bar, 421 U.S. 773 [1975]). Two
years later, the U.S. Supreme Court struck down ethical rules established by the State Bar of
Arizona that prohibited lawyers from advertising. The two attorneys who brought the case had
opened a legal clinic that handled routine matters such as uncontested divorces, name changes, and
simple wills for a standard fee. The thinking was that the lawyers could turn a profit by handling a
large number of cases for a modest fee. The lawyers decided to place an advertisement in a Phoenix
newspaper offering “legal services at very reasonable fees” (Bates v. State Bar of Arizona, 433 U.S.
350 [1977]). The U.S. Supreme Court held that advertising would introduce competition into the
legal marketplace that inevitably would result in lawyers competing to offer low-cost legal services
to consumers. The Court stressed that false, deceptive, or misleading advertising should not be
permitted. A claim, for example, that “we are successful in virtually all of our cases” is unclear and
imprecise.
The Court later clarified that while lawyers are permitted to advertise their services, a bar
association may prohibit lawyers from engaging in “in-person solicitation” of potential clients. The
Court reasoned that there was a risk that the public would be misled and pressured into retaining an
attorney and that lawyers would “stir up litigation.” There is no limitation on lawyers informing
individuals of their legal rights and prospects for obtaining a recovery so long as the lawyer does
not seek to represent the individual (Ohralik v. Ohio State Bar Association, 436 U.S. 447 [1978]).
The Court has approved mail solicitation of clients because a “truthful and nondeceptive” letter
does not pose the same risk of pressure as does face-to-face solicitation (Shapero v. Kentucky Bar
Association, 486 U.S. 466 [1988]).
Keep in mind that in 2018 the ABA updated the rules on advertising to encompass electronic media
and made several additional changes to the rules on legal advertising.
State and local bar associations differ significantly on their standards for advertising, and some
localities remain resistant to video images of accidents, testimonials from clients, and lawyers
purchasing advertisements in newspaper lists of “super lawyers” or the “best lawyers.” The U.S.
Supreme Court upheld a controversial Florida prohibition against written solicitation to accident
victims within thirty days of the accident (Florida Bar v. Went For It Inc., 515 U.S. 18 [1995]).
The question is how to balance lawyers’ freedom of speech and the social interest in informing
consumers of the availability of legal representation against the interest in protecting the public
from advertising that is misleading or inaccurate or omits essential information. An upstate New
York law firm’s television spot that portrayed lawyers racing at superhuman speeds to consult with
a group of space aliens regarding a dented flying saucer initially was found in violation of a
statewide prohibition against portrayals that were clearly unrelated to legal competence and that
misled clients and demeaned the legal profession. New York courts later ruled that the
advertisement was constitutionally protected freedom of speech. Personal injury and divorce
lawyers tend to be more aggressive than other lawyers in their advertising. A lawyer in Chicago
bought space on a billboard on a major highway that proclaimed, “Life’s short. Get a divorce.” The
billboard portrayed a woman in lingerie and a shirtless and muscular man separated by the scales of
justice. The Florida Supreme Court reprimanded two lawyers because of a television advertisement
that featured the logo of a pit bull with a spiked collar and used the words “pit bull” in the firm’s
telephone number. The court reasoned that the “logo does not assist the public in ensuring that an
informed decision is made prior to the selection of the attorney” (Florida Bar v. Pape, 918 So.2d
240 [Fla. 2005]). Other law firms find creative ways to advertise, such as sponsoring race car
drivers or Little League teams (Baum 2013: 75).
Some of the most controversial advertising involves lawyers contacting the victims of a disaster. In
October 2003, ten people died and dozens were injured in an accident involving the Staten Island
Ferry in New York City. Lawyers immediately began contacting the one thousand survivors in an
effort to attract clients. This resulted in claims being filed for $1.3 billion in damages on behalf of
the victims. A thirty-second television advertisement by one firm showed the grim picture of a ferry
washed over by waves of green dollar signs and a voice-over proclaiming that people on board the
ferry were entitled to damages and that it soon might be too late to file a legal action (Saulny 2003).
Photo 5.1 A billboard advertisement for the Rosenbaum law firm in Philadelphia,
Pennsylvania.
iStockphoto.com/ablokhin
In September 2009, the Institute for Legal Reform, an arm of the U.S. Chamber of Commerce,
published a study in support of its advocacy of a restraint on legal suits against business. Television
advertising for medical malpractice lawsuits by lawyers increased from roughly 10,150
advertisements in 2004 to more than 156,000 ads in 2008. In this same period, spending on
advertisements by lawyers increased from $3.8 million to nearly $62 million, a roughly 1,300
percent increase in 2008-adjusted dollars. In 2015, lawyers advertising on television reached $892
million, a 68 percent increase over 2008. This rose to an estimated $924 million in 2017 (Li 2017).
Large law firms tend to devote 3 to 5 percent of their revenues to advertising despite the uncertain
impact of such advertising. In 2001, the firm of Brobeck, Phleger & Harrison spent $3.1 million on
television advertising targeting high-tech firms. Despite this broad advertising campaign, Brobeck
was forced into bankruptcy in 2003 (Heinz et al. 2005: 309–310). Another study determined that in
2003 lawyers spent more than any other business or profession on yellow-page ads, roughly $1
billion (Baum 2013: 75).
The American Tort Reform Association (ATRA), a group representing business interests that
works to reform the civil justice system and opposes legal advertising, reports that between April 1
and June 30, 2018, nearly three million advertisements for legal services were broadcast in local
media markets at a cost of $186 million. Nearly 15 percent of local advertisements were spent in
seven media markets during this period. In New York City roughly twenty-two thousand ads for
legal services aired at a cost of roughly $6.4 million. This was twenty times the number of
advertisements for pizza delivery and restaurants. Los Angeles–area television viewers were
exposed to seven times more ads for legal services than for pizza delivery and restaurants.
A study of lawyer advertising in the yellow pages in San Diego, California, found widespread
disregard of the standards for advertising established by the State Bar of California. For example,
of the 835 advertisements examined, 76 made the claim of “no recovery, no fee” while failing to
disclose whether an individual would be held liable for the expenses and costs of the litigation.
Lawyers referenced their past success and claimed they had collected “millions of dollars for
clients” without indicating the basis for such claims or noting that past success did not provide a
basis for predictions of future success.
The same study found that between 1988 and 2001, state bar associations disciplined several
lawyers for unethical advertising. Ten actions were brought against lawyers in Florida, and seven
complaints were filed in Texas and in three other states. In the other forty-five states in the study, a
total of sixty-five complaints were filed (Rossi 2002).
In 2015, a number of law firms spent $10 million or more in advertising, and a Houston firm spent
$25 million, according to the U.S. Chamber Institute for Legal Reform. Spending for legal-related
television advertisements was $892 million in 2015, an increase of 68 percent since 2008. Legal
advertising on television is focused on three topics: prescription drug claims, medical device
claims, and asbestos and mesothelioma. The leading market for broadcast ads aired by personal
injury lawyers is Tampa, followed by Orlando, Atlanta, and Las Vegas. There were over 165,000
legal advertisements in Tampa alone in 2015. Law firms are paying top dollar to buy keywords on
Internet searches. Twenty-three of the twenty-five and seventy-eight of the one hundred most
expensive search terms are legally related. The most expensive Google keyword search terms were
“San Antonio car wreck attorney,” costing $670 per click, and “accident attorney Riverside CA”
($626 per click) (Weiss 2015).
The impact of advertising is not at all clear. An early study in Iowa and in Wisconsin found that
lawyers who advertise are perceived as less competent, honest, helpful, effective, and reliable than
lawyers who do not advertise. There also appears to be a risk that heavy-handed advertising will
decrease confidence in the legal profession. On the other hand, there is evidence that advertising
results in competition between lawyers for clients and leads to a lowering of legal fees for basic
services such as the drafting of wills (Rossi and Weighner 1991).
ATRA, which as noted opposes lawyer advertising, argues that advertising can spread fear and
apprehension among the public, which can lead to tragic results. ATRA alleges that in 2016 sixtyone patients stopped using their blood-thinner medication after viewing advertisements from
lawyers soliciting individuals to join legal actions against the manufacturers of blood thinners.
Lawyers who advertise also at times may not be fully equipped to handle the potentially complex
legal problems that they attract in response to their advertisements.
Lawyers in large firms generally are not compelled to resort to direct advertising to the public and
continue to regard blatant advertising as demeaning to the profession. Firms instead rely on
websites, newsletters, and high-profile partners whose star power can attract clients, and encourage
their partners to sit on the boards of directors of corporations where they mix and mingle with
individuals from the world of high finance and business. Corporate firms increasingly rely on
publicists, who issue press releases, contact journalists to write stories on the firm, and arrange for
lawyers to appear on talk shows. Law firms also circulate “league tables” that rank firms on items
such as the amount of money firms have recovered for clients. Another method of promoting a firm
is to send out letters or take out notices in legal publications announcing new partners or associates
(Heinz et al. 2005: 313).
There remains resistance among “old guard” lawyers to advertising. Carroll Seron, in her study of
the business of legal practice, found that although advertising is accepted, traditionalists continue to
view advertising as demeaning to the profession and as giving the false impression that lawyers can
produce results with little effort. Traditionalists continue to rely on referrals, community ties, and
membership in community organizations to attract clients (Seron 1996: 50–53). In contrast,
younger and more business-oriented lawyers are comfortable with aggressively marketing
themselves (50–53, 95–97). Seron notes that these youthful lawyers could just as easily be
marketing pizzas or hamburgers and that they are more excited by the business aspects of law than
by the actual practice of law. In this fast-paced world of the entrepreneurial lawyer, efficiency and
generating a profit are more important than quality and personal relationships between lawyers and
their clients (95–97, 104, 107).
An example of the “new breed” of lawyer advertising intended to appeal to younger individuals is a
YouTube video posted by Daniel Muessig, a former rapper and lawyer in his 30s. The video
portrays a number of criminals leaving the courthouse or engaged in criminal activity raising their
thumbs and exclaiming, “Thanks, Dan.” Muessig next appears with a neon sign flashing, “Real
Defense Attorney.” He goes on to address the viewers and declares “America was built on freedom,
not on a bunch of people with more money than you telling you what you can and can’t do with all
their stupid laws. Laws are arbitrary.” Muessig continues his dialogue by advising viewers that they
need a lawyer “who understands” them and where “you’re coming from. . . . Trust me, I may have
a law degree, but I think like a criminal. Street knowledge.” Muessig assures viewers that he
answers the phone and visits his clients in jail, “because I’ll probably be there visiting my friends
anyways.” He notes that criminal lawyers who promise a result are “most likely a liar or scumbag.”
Muessig ends by noting, “Did I mention I’m Jewish?” as he spins a dreidel (a Jewish holiday
spinning top). The video ends with a disclaimer saying it is a satire and the people portrayed are
actors. Does this type of advertisement adequately inform viewers why they should hire Muessig to
represent them?
Contingent Fees
Most lawyers charge by the hour, and their hourly rate is based on their expertise, their experience,
and the difficulty of the task. Solo practitioners and small firms in a local area charge roughly the
same fee for routine tasks such as the purchase of a home. The ABA Model Rules of Professional
Conduct (1.5[a]) state, “A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount of expenses.”
Deborah Rhode reports that less than 5 percent of Americans believe lawyers’ fees are fair. She
accuses lawyers of “padding charges” by intentionally or unintentionally exaggerating the time
devoted to a case, a practice that apparently is common in large corporate firms. There is clear
fraud in 5–10 percent of cases and questionable practices in another 25–35 percent of cases. In one
survey, 40 percent of lawyers conceded they inflate their charges, and roughly half of in-house
corporate lawyers believe they are being overcharged by law firms. Lawyers report they bill for
social conversations although corporate clients state that they do not expect to be billed for these
conversations (Rhode 2000: 169–171). Former federal judge Jed Rakoff reported that the fee for
hiring a lawyer has increased at a greater rate than the average increase in income or wages and at
more than three times the rate of inflation. Between 1985 and 2012, the average billing rate
increased for law firm partners from $112 to $536 per hour, and for associates from $79 to $370
per hour. These fees have contributed to most civil cases being settled; in 2015, only 1 percent of
civil cases in state and federal court were decided on the merits at trial (Rakoff 2015: 4).
The following is a list of some classic abuses in corporate firms (Rhode 2000: 171–174).
• A lawyer may charge for the time an associate engages in non-legal work such as unpacking a box of
documents.
• A senior partner may charge a large fee for completing a routine task that does not require legal
expertise.
• Lawyers violate their ethical obligations by charging a client for learning the law required to represent a
client on a legal matter.
• Large firms use “unit billing” in which charges are broken down into fifteen- or twenty-minute time
segments. A brief phone call may cost a client one-fifth of a lawyer’s hourly fee.
• Lawyers engage in double billing. They charge one client for travel time on a plane while charging
another client for the time spent working on their case while on the plane.
• Firms inflate the costs of routine services such as photocopying and even charge for heating and air
conditioning.
• Lawyers may require retainers (advance payments) and will keep the entire fee despite the fact that they
quickly resolve the problem.
An alternative method of charging for legal services is a contingent fee arrangement. In a
contingent fee arrangement, the client does not pay the lawyer. The lawyer is paid an agreed-on
percentage of any legal settlement or of any court judgment that a plaintiff may receive. The
contingent fee agreement covers only the legal fees in a case, and the plaintiff remains liable for
expenses such as photocopying. It is estimated that 90 percent of personal injury cases are filed by
lawyers working on a contingent fee basis (Baum 2013: 77–78). Keep in mind that contingent fee
arrangements are between lawyers and plaintiffs bringing a legal action and do not cover the
representation of defendants who are being sued (Rakoff 2015: 4).
A central criticism of contingent fees is that a lawyer will try to settle the case rather than go to
court so as to spend as little time as possible on the case (Corsi 1984: 215–216). Defenders of
contingent fees argue that lawyers working on contingent fee will not settle a case and disregard the
interest of the client because the lawyer will want to make a client happy to ensure the client retains
the lawyer in the future. Lawyers also will want to ensure a client receives a fair settlement to
maintain a reputation as a zealous advocate among other potential clients (Kritzer 2002a, 2002b).
The primary argument for contingent fees is that absent a contingent fee, lawyers may be unwilling
to represent a client in a complicated case. This is particularly important for poor clients who may
not be able to afford to hire a lawyer on an hourly basis. Critics of contingent fees respond that
lawyers carefully screen cases before undertaking contingent fee representation and refuse to take
cases where there is a risk of “losing.” This explains why lawyers report they are successful in 90
percent of the cases. It also is pointed out that lawyers generally will not take cases on a contingent
fee that may not result in a large settlement, and an individual whose recovery is likely to amount
to less than $100,000 may not be able to find a lawyer willing to represent him or her on a
contingent fee basis (Brickman 2003).
Contingent fee arrangements thus do not provide every claimant access to justice. The costs of
litigation can quickly outpace the expected monetary recovery. Court-filing fees, the deposition of
witnesses, and the time spent organizing the case files and preparing for trial are enormously costly.
The result is that absent the promise of a significant recovery, a lawyer may be unwilling to enter
into a contingent fee arrangement (Chemerinsky 2017; Croley 2017: 121–122; Lahave 2017).
One of the chief criticisms of contingent fees is that lawyers at times obtain large fees for a
moderate amount of work. The typical contingent fee is one-third the amount of the settlement or
legal judgment. For example, a lawyer represented a widow whose husband was killed in the 2001
attack on the World Trade Center and obtained a $6.6 million settlement. The lawyer earned a $2
million fee for his work. A contingent fee, if broken down into the amount of money the lawyer is
earning per hour, in some cases may translate into thousands or tens of thousands of dollars
(Lansing, Fricke, and Davis 2009). In 1989, a soft-drink delivery truck struck a school bus, killing
twenty-one children and injuring dozens of others. The bottling company’s insurance company
immediately settled for $122 million. The attorneys earned one-third of the settlement and
generated a fee of roughly $25,000 per hour (P. Bell and O’Connell 1997: 216). Lawyers obtained
settlements totaling as much as $10 billion for thousands of women harmed by surgically implanted
pelvic mesh. The average settlement for each plaintiff averaged $60,000 after deducting expenses
and legal fees. A number of women have filed legal suits against their lawyers, who they claim
unjustly enriched themselves by collecting legal fees amounting to roughly 40 percent of the
damages awarded to the plaintiffs (M. Goldstein 2019).
There also is the criticism that class action settlements at times have resulted in a significant
percentage of the settlement going to the lawyers rather than to the plaintiffs. A class action is a
legal action in which a lawsuit is brought on behalf of a small number of plaintiffs who are certified
by the court as representatives of all “similarly situated individuals.” The “members of the class”
are contacted by the lawyers and are invited to join or opt out of the lawsuit. A class action makes
sense when there are thousands of individuals, each of whom may have a small claim for damages.
It would not be financially worthwhile for lawyers to file lawsuits on behalf of each individual
client on a contingent fee basis because the recovery in each case would not be sufficiently large to
meet the expenses of the litigation. Combining the claims provides an incentive for a law firm to
take the consolidated case on a contingent fee basis. Class actions in the past have been filed
against companies that manufactured defective medical devices, on behalf of investors who have
been defrauded by firms that misrepresented their financial condition, on behalf of consumers who
purchased defective products or harmful medication, and on behalf of the victims of employment
discrimination. In 2002, federal court of appeals judge Richard Posner refused to accept a
settlement between the tax preparer H&R Block and a group of plaintiffs that would have resulted
in the roughly seventeen million members of the class each receiving between $15 and $30,
although the lawyers would have received $4 million in attorney fees in addition to expenses. Other
judges in refusing to accept settlements have explained that allowing lawyers to receive large fees
might make the public skeptical of the motives of lawyers and result in individuals being reluctant
to join class action suits in the future. Keep in mind that arbitration clauses in most contracts
(discussed in Chapter 6) preclude class actions (Rakoff 2015: 4). In AT&T Mobility LLC v.
Concepcion (563 U.S. 333 [2011]), the Supreme Court held that a consumer was required to enter
into arbitration and was precluded by the contract from filing a class action seeking damages based
on AT&T’s misrepresentation of the cost of a phone. Justice Stephen Breyer, in a dissenting
opinion, wrote, “What rational lawyer would have signed on to represent [the plaintiff] in litigation
for the possibility of fees stemming from a $30.22 claim? The realistic alternative to a class action
is not 17 million individual suits but zero individual suits, as only a lunatic or a fanatic sues for
$30” (Chemerinsky 2017: 194–195).
The Supreme Court has not been entirely receptive to class actions. In Wal-Mart Stores, Inc. v.
Dukes, et al. (564 U.S. 338 [2011]), a class action was filed against Wal-Mart alleging sex
discrimination in the salary and promotion of women. The U.S. Supreme Court held that the
plaintiffs failed to establish sufficient “commonality” to constitute a class action. Commonality
requires a showing that the plaintiffs’ claims involve similar factual and legal issues and that it is
more efficient to combine them in a single legal action. Justice Antonin Scalia writing for the
majority of the Court determined that the gender disparities were the result of decisions by
individual supervisors and that the plaintiffs’ claims were required to be individually litigated.
Justice Ruth Bader Ginsburg disagreed and argued in her dissent that there was a clear corporatewide policy of discrimination against women and that the plaintiffs’ claim should be litigated in a
class action. A lone female plaintiff may not be able to demonstrate sufficient economic harm for a
lawyer to take her individual case. Justice Ginsburg noted that there was a clear pattern of corporate
discrimination against females: “Women fill 70 percent of the hourly jobs in the retailer’s stores but
make up only ‘33 percent of management employees.’ The higher one looks in the organization the
lower the percentage of women” (Chemerinsky 2017: 190–192).
Defenders of contingent fees argue that the hourly income of a lawyer working on a contingent fee
case works out to be roughly similar to that of a lawyer working on an hourly basis. The lawyer
also cannot predict how many hours a case will take and cannot predict whether he or she will be
successful. The Minneapolis law firm of Faegre & Benson earned a contingent fee of over $100
million in successfully representing the Alaska fishermen whose livelihood was damaged by
the Exxon Valdez oil spill. The firm had worked on the case for more than seventeen years and
sacrificed other sources of income (Kritzer 2002a, 2002b).
Some commentators recognize the need for contingent fees and recommend keeping attorney fees
at a reasonable level by capping the amount a lawyer may earn on a case, by allowing lawyers to
earn a fee based on the number of hours they spend on a case, or by allowing lawyers working on a
contingent fee to increase their hourly fee by 30 percent or 35 percent if they win the case (Lansing
et al. 2009).
Elite members of the legal profession view the contingent fee as resulting in lawyers profiting from
the suffering of their clients and as beneath the dignity of lawyers. On the other hand, lawyers who
charge on the basis of contingent fees question whether the elite lawyers who oppose contingent
fees are motivated by a desire to make it difficult for their corporate clients to be sued (Auerbach
1976: 44–48).
Various states have introduced reforms that limit the amount a lawyer may recover in a contingent
fee, which critics allege discourages lawyers from taking all but the most lucrative cases. Stephen
Daniels and Joanne Martin studied the impact of a 2003 Texas law that imposed a “hard cap” of
$250,000 on noneconomic injuries (e.g., pain and suffering) in medical malpractice cases. The
thinking of the Texas legislature was that large non-economic recoveries were driving up insurance
rates and health care costs. Daniels and Martin find that caps on recovery for noneconomic harm
resulted in a significant number of tort lawyers deciding against taking all but the most obvious
medical malpractice cases because the risk and amount of work was not worth the amount of
money that might be recovered on a contingent fee. Tort lawyers particularly avoided taking cases
in those instances in which individuals did not suffer a significant loss of wages (e.g., children,
unemployed, or elderly) (Daniels and Martin 2015: 205–230).
Benjamin Barton argues that tort reform of contingent fees has contributed to the rise of “settlement
mills” that provide legal representation in cases that are unattractive to personal injury lawyers.
These are high-volume personal injury practices that engage in nationwide advertising and
negotiate quick and bargain basement settlements with insurance companies. These settlement mills
have close working relationships with insurance companies and settle hundreds of cases at a time
without even bothering to file a legal claim. Individuals with significant injury claims represented
by a settlement mill typically receive a lower settlement than they would have received in the
absence of a cap on recovery (Barton 2015: 107, 110–114).
A new development is investments by large banks and financial firms in lawsuits. The average
person finds it difficult to afford to bring a case to court, and lawyers working on contingent fee
lack the money to support the litigation. The typical run-of-the-mill civil action in federal court
costs an average of $15,000; a medical malpractice case requiring expert witnesses may run well
over $100,000. Lawyers have begun to borrow money in order to finance cases. The lawyers
representing “Ground Zero” workers borrowed $35 million and settled the case for $712.4 million.
The lenders earned roughly $11 million. Borrowing money is defended as allowing the average
person to afford to sue a large corporation. Lawyers in most states are not required to inform their
clients that they have borrowed money. The interest rate on a loan is as high as 15 percent, and the
cost may be more than the financial award in the case. Lenders may be eager for a return on their
investment and may place pressure on the lawyer to settle the case. Delays in settlement may result
in interest fee payments taking an increasingly greater amount of the ultimate settlement
(Appelbaum 2010).
Many of the litigation-finance firms are funded by wealthy private investment firms and in some
instances have supported lucrative but questionable litigation. A federal indictment charged five
men who were funded by a litigation-finance firm with recruiting individuals to stage slip-and-fall
accidents and transporting the individuals to doctors who provided false diagnoses of the injuries.
The five-year fraudulent scheme cost insurance companies and property owners $32 million (M.
Goldstein and Silver-Greenberg 2018).
In the next section, we outline two other approaches to providing individuals with access to justice.
Group legal services plans provide access to legal assistance as part of an individual’s employment
or union membership. Legal aid provides assistance to individuals who fall below the poverty line.
5.1 You Decide
In 2016, the news site Gawker was found guilty of harming former professional wrestling superstar Hulk Hogan (aka
Terry Bollea) by subjecting him to embarrassment and to humiliation in posting a video recorded by a security camera of
Hogan in a behind-closed-doors sexual interaction. The video was posted on Gawker for six months and reportedly was
watched by millions of individuals. The 62-year-old Hogan was pictured interacting in 2007 with the wife of his former
best friend, shock jock Todd A. Clem, known on the radio as Love Sponge Clem. Clem’s now former wife testified that
Clem had encouraged her to have sex with Hogan. Clem could be heard at the end of the tape telling his wife that they
could become rich from the sale of the tape. Gawker refused to take the video off the site despite several requests from
Hogan.
A six-person Florida jury composed of four women and two men returned a guilty verdict against Gawker, Gawker owner
Nick Denton, and Gawker editor Albert J. Daulerio and awarded Hogan $115 million in compensatory damages ($55
million for economic harm and $60 million for emotional distress) and $25 million in punitive damages.
It later was revealed that Hogan’s suit against Gawker, which dragged on for nearly three years, was secretly funded by
Peter Thiel, a co-founder of PayPal, who reportedly spent $10 million in support of the legal action. Thiel later would
become a subject of controversy himself when it was revealed that he was one of the few tech entrepreneurs who
supported and donated a significant amount of money to the presidential campaign of Donald Trump.
Thiel, unlike the typical investors who fund legal actions, apparently was looking for retribution against Gawker rather
than looking for a profit. He allegedly was angry at Gawker for outing him and several of his friends as gay. Hogan’s
lawyers following the guilty verdict characterized Gawker as engaging in “morbid and sensational prying” rather than
journalism and expressed the hope that the verdict would deter others from victimizing “innocent people.”
Gawker argued throughout the trial that journalists are charged with revealing the activities of public personalities like
Hogan who promote an image of sexual prowess. Gawker also pointed out that there was no question that the video was
accurate and had not been modified. As a result of the damage award, Gawker Media was forced into bankruptcy and sold
to Univision although the Gawker.com site was dissolved.
Is press freedom in the United States at risk when a wealthy Silicon Valley billionaire can bankroll a legal action against
an Internet site for publishing truthful material about a celebrity?
Legal Services Plans
An alternative avenue for people to obtain legal services involves group legal services plans.
These may be organized either as “access plans” or as “prepaid legal services plans.” Access plans
provide individuals with access to lawyers as a benefit of their union membership or employment
or membership in an organization. In contrast, individuals enrolled in a prepaid legal services plan
pay a fee and in return are provided legal assistance for certain types of legal needs (Baum 2013:
77). It is estimated that between 30 percent and 40 percent of the public have access to some type
of prepaid legal services plan (Rhode 2004: 97).
Legal services plans have existed in Europe for well over one hundred years. The first plans in the
United States were introduced in 1973 when Congress amended the labor relations law to permit
unions to bargain with management over the provision of legal services for union members. In
1971, the Laborers’ International Union became the first union to provide legal assistance for its
members. Various corporations and professional organizations followed this example and began to
provide free legal assistance to their employees.
How do group legal services plans work? In an access plan, individuals who are covered by the
plan are given a list of lawyers near their home with whom they may consult without having to pay
a fee. The lawyer will make a phone call, write a letter, or review a contract or other document. An
individual who wants the lawyer to pursue a more complicated matter such as providing
representation on a reckless driving charge will be charged a reduced fee. AARP (formerly the
American Association of Retired Persons) is an example of an organization that offers an access
plan to its members (Corsi 1984: 246–249). Former federal judge Jed Rakoff, although praising
legal services plans, notes that the decline of labor unions in the United States has meant that over
90 percent of the private workforce does not have access to these plans as part of employment
(Rakoff 2015: 5).
In a prepaid legal services plan, you pay a monthly fee of roughly $25 and, in return, are provided
with free consultation with a lawyer and a number of basic services, including preparation of the
documents required to purchase or sell a home, drafting a will, and reviewing an employment
contract. Individuals can pay an additional fee to receive assistance with other matters such as a
divorce, bankruptcy, representation in a minor criminal or civil case, or adoption. The lawyers who
provide legal consultation generally are local attorneys who supplement their private practice by
working for the prepaid plan or lawyers who work for the plan full-time. Under a “closed” plan, an
individual is restricted to lawyers who contract with the plan. An “open” plan permits an individual
to consult with any attorney who agrees to set a ceiling on fees (Rhode 2004: 98).
A survey of legal services plans sponsored by the insurance company LegalShield, which has a
vested interest in promoting these plans, reports that 75 percent of individuals with legal insurance
are satisfied with their plan and that 70 percent of individuals with legal insurance use the plan
more than three times a year. Ninety percent of Americans state that if they had legal insurance
they would contact a lawyer for even minor issues like traffic tickets or to review a lease on an
apartment. Yet 90 percent of Americans state that they do not have legal insurance, and two-thirds
of Americans report that they have never heard of legal services plans. Sixty percent of respondents
would be willing to pay $20 per month to have unlimited access to a qualified lawyer, and the
number increases to 70 percent when the cost is divided with their employer.
Benjamin Barton notes that a promising development in access to prepaid legal services is online
sites like LegalZoom, Rocket Lawyer, and LegalShield, which offer subscription plans that include
online legal forms, attorney review of legal documents, and access to a lawyer for consultations
(Barton 2015: 204). Legal Services Link is an online service on which individuals post legal
problems and lawyers enrolled on the site respond by listing their professional background and
proposed fee.
Legal services plans ensure that individuals will have the opportunity to consult with a lawyer on
basic legal matters. Critics maintain that the plans enter into agreements with newly minted lawyers
to save money, there is little quality control (Rhode 2004: 98), and the lawyers tend to spend as
little time as possible with a client and often rely on paralegals (Van Hoy 1997).
Bar associations help provide legal representation to the middle class through referral services.
These are “clearinghouses” that refer individuals to qualified lawyers in the community. The first
organized efforts by local bar associations to address the needs of the middle class were
experiments with referral services in the 1930s in Philadelphia and Chicago. In 1946, the ABA
House of Delegates encouraged local bar associations to establish referral services to direct
individuals to qualified lawyers willing to provide legal services at a reasonable rate (Hurst 1950:
326–329).
In the next section, we discuss programs to meet the legal needs of the poor.
Meeting the Legal Needs of the Poor
The German community in New York City created the country’s first legal aid society in 1876 to
protect newly arriving immigrants from dishonest landlords and exploitative employers and
shopkeepers. Legal assistance to the poor gradually came to be viewed as a mechanism to assure
the poor and working class that the legal system served the interests of all citizens and did not
merely cater to the wealthy and privileged. In 1890, the German legal society was expanded to
provide for the needs of individuals from every background and was renamed the New York Legal
Aid Society. Four years earlier, the Chicago Protective Agency for Women and Children was
established to protect women and children from being exploited by unscrupulous employers (Batlan
2015: 47–86). Shortly thereafter, the Bureau of Justice was created in Chicago to provide legal
services to the poor. Lawyers in other cities thereafter formed legal aid societies modeled after the
organizations in New York and in Chicago, and by 1917, legal aid societies had been formed in
forty-one cities. These organizations provided assistance to the indigent in issues ranging from
landlord-tenant disputes to divorce and employment (Shepard 2007: 2–4).
In 1919, Reginald Heber Smith, the 24-year-old director of the Boston Legal Aid Society,
published the influential book Justice and the Poor based on his study of legal aid societies. Smith
argued the poor were denied access to justice because they could not afford to hire lawyers and pay
the costs of litigation. As a result, the indigent could not rely on the legal system to protect their
rights. This led the poor to believe the American legal system was stacked against them. Smith
predicted that this unequal access to the legal system would lead to social unrest and disorder. The
solution was for the legal profession to expand its commitment to legal aid. Smith was a Harvardtrained lawyer and was a great believer in the American system of justice, and he did not doubt the
poor and working class would be treated fairly by the judiciary if they were provided with legal
representation (R. H. Smith 1919).
Smith painted a portrait of the fairness and justness of the American legal system that appealed to
the legal establishment, and in 1917, the ABA passed a resolution encouraging state and local bar
associations to assist the “worthy poor” (Rhode 2004: 59). Between 1921 and 1937, Smith chaired
the ABA Standing Committee on Legal Aid and encouraged local bar associations to form legal aid
societies.
Emery Brownell, in 1961, updated a study of legal aid that he had taken ten years earlier and found
that although there had been growth in legal aid, roughly 20 percent of the nation’s largest cities did
not have legal aid offices (Brownell 1951, 1961). A study by Jerome Carlin and two other eminent
researchers determined there was one legal aid lawyer for every 120,000 eligible clients. As a
result, the average legal aid lawyer only had time to meet with 25 percent of the individuals seeking
assistance and only possessed the resources to address straightforward and uncomplicated matters
(Carlin, Howard, and Messinger 1966: 58). In 1963, it was estimated that legal aid was reaching
only 1 percent of those in need, and two-thirds of low-income Americans had yet to consult with a
lawyer. The bulk of the funding for legal aid was contributed by private charities rather than by the
legal profession. The ABA warned of the danger of government involvement in the delivery of
legal services (Rhode 2004: 60) as a step toward public control of the legal profession (Auerbach
1976: 136–137).
In 1964, U.S. attorney general Robert F. Kennedy, in a Law Day address at the University of
Chicago School of Law, observed that “the tenants of slums, and public housing projects, the
purchasers from disreputable finance companies, [and] the minority group member who is
discriminated against” are all unable to assert their legal rights because of their lack of legal
representation. In contrast, the wealthy are able to afford lawyers to guide them through the
legal thicket. Attorney General Kennedy criticized lawyers for permitting the development of “two
systems of law . . . one for the rich, one for the poor” (quoted in Shepard 2007: 1–2). Kennedy’s
address had been inspired by two Yale law graduates working on behalf of poor people, Edgar
Cahn and Jean Cahn, who argued that the government should hire lawyers to work in local
neighborhoods to represent poor people in legal matters and to bring legal actions challenging the
conditions and practices that disadvantage the poor (Cahn and Cahn 1964).
President Lyndon Johnson fulfilled the vision of the assassinated president John F. Kennedy and
worked with the Democratic Congress to pass the Economic Opportunity Act of 1964 to combat
poverty in the United States. Johnson boldly declared a “War on Poverty” designed to eliminate
and prevent poverty in the United States. The statute created the Office of Economic Opportunity,
which contributed funds to existing legal aid offices across the country, established more than one
hundred new neighborhood legal offices, and funded the hiring of almost two thousand anti-poverty
lawyers. The centers were to provide legal assistance to individuals whose income was less than
125 percent of the poverty level (in 2014, this was $27,563 for a family of four and amounted to
fifty-four million people).
Jean Cahn was named as director of these new programs. Neighborhood lawyers, while
representing poor people in their day-to-day legal problems, also employed law as an instrument to
challenge public policies that disadvantaged the poor and marginal members of society. Examples
of this type of social reform litigation included legal actions establishing that landlords had an
obligation to provide habitable and safe residences for tenants, asking courts to take over the
operation of public housing projects that were unsafe and unhealthy and infested by drugs and
gangs, and arguing that people should not be deprived of public assistance without a hearing. Legal
aid lawyers also brought actions to desegregate schools and argued that a California requirement
that voters should have a knowledge of English was unconstitutional (E. Johnson 1974: 71). In
other words, the mission was “to change the structure of the world in which poor people live”
(Auerbach 1976: 270).
A number of lawsuits were filed challenging the working conditions of migrant workers in
California and the policies of the state’s chief executive, Governor Ronald Reagan. Governor
Reagan was a vocal critic of federally funded legal aid and raised the question whether the
government should be supporting lawyers in California Rural Legal Assistance to pursue what he
considered to be a liberal social agenda. Governor Reagan’s criticism was reiterated by Vice
President Spiro Agnew, who described legal aid lawyers as “ideological vigilantes” who employed
public funds to pursue their own “theories of how society should be structured and how the
resources, rights and benefits of that society should be distributed.” Legal aid in the view of Agnew
should be limited to problems confronting individuals in housing and employment and as
consumers rather than focusing on social reform. The bread and butter of legal services should be
to prevent evictions and homelessness, protect battered women from abusers by obtaining orders of
protection, and ensure that fathers pay child support to feed their children. Legal aid lawyers
responded by arguing that the larger issues of discrimination in education, housing, and social
services must be addressed if poor people are to have a chance to lift themselves out of poverty
(Corsi 1984: 148–149).
The ABA originally viewed legal services for the poor as a threat to the economic independence of
the legal profession and criticized legal aid as a step toward “Communist control.” The ABA
eventually endorsed federally funded legal services although various local bar associations
continued to oppose federally funded lawyers whom they viewed as depriving local lawyers of
clients and as promoting radical social reform (Auerbach 1976: 236, 272–273).
As President Richard M. Nixon was about to leave office under the cloud of a threatened
impeachment for his role in the Watergate scandal, he placed legal services under the control of the
newly created Legal Services Corporation (LSC). The corporation was to be run by an elevenperson board of directors appointed by the U.S. president with the approval of Congress. The
delivery of legal services was to be under the control of regional directors. On the one hand, the
creation of the corporation ensured that legal services would be removed from direct control by the
president and could not be eliminated with the stroke of a pen. On the other hand, the directors
were appointed by the president and could exercise their authority to limit the activities of legal aid
lawyers funded by the corporation (Shepard 2007: 102).
The delivery of legal services was strongly supported by President Jimmy Carter, who noted that
although the United States had the “highest concentration” of lawyers in the world, it did not have
“more justice.” President Carter noted that no professional service was “more wastefully or unfairly
distributed than legal skills. Ninety percent of our lawyers serve ten percent of our people. . . . We
are over-lawyered and under-represented” (quoted in Shepard 2007: 123).
President Reagan, on taking office in 1980, unsuccessfully attempted to eliminate the LSC although
he succeeded in severely reducing funding for the agency and in restricting the activities of legal
aid lawyers. These restrictions were intended to return lawyers to their traditional role of
representing individual clients in remedying specific problems such as divorce, child support,
landlord-tenant issues, and claims for veterans’ benefits rather than devoting themselves to
“politically controversial activities.” Legal aid lawyers under Reagan were prohibited from
engaging in litigation involving abortion, school desegregation, immigration, prisoners, and public
housing residents facing eviction because of drug use. They also were barred from lobbying, voter
registration, political organizing, class action suits against the government, and seeking attorney
fees. The prohibition on class action suits was a direct effort to limit law to achieve social reform
such as asking a court to take over a jail that fails to provide safety and security and basic human
needs or a challenge to the electoral system in a city that is alleged to underrepresent African
Americans. The prohibition on attorney fees meant that lawyers were prohibited from accepting
fees that were provided as a matter of law to lawyers who brought cases resulting in the protection
of consumers or tenants or employment discrimination. The reduction in funding for legal services,
along with the prohibition on the receipt of attorney fees, severely restricted the budget of the LSC.
This resulted in staff cutbacks, and various offices decided that with staff reductions, they no longer
had the resources to represent clients in areas such as divorce, child custody, and bankruptcy
(Luban 1988: 242, 298–300).
Legal services were not a priority for the administration of President George W. Bush (Shepard
2007: 240). At the time President Barack Obama assumed office, federal funding was roughly onehalf of the 1980 level (Rhode 2004: 106). Local legal service programs typically supplemented
federal funds with monies contributed by state and local bar associations and other sources.
Between a third and half of the funding in most states at present is based on state and local funding
sources. The so-called federal poison pill rule prevents a legal aid office receiving federal funds
from using any outside funds to engage in activities prohibited by federal law. At the same time as
local legal aid programs have experienced a cutback in federal funding, the availability of local
funding has been shrinking as a result of the downturn in the economy. These funds typically are
based on interest in accounts held by lawyers for their clients (IOLTA, or Interest on Lawyer Trust
Accounts), which, with a decline in interest rates, no longer generate the several hundred million
dollars that they yielded in the past (Baum 2013: 74). The ABA notes that states differ in the
funding provided to legal services, and as a result, when it comes to legal services “geography is
destiny.” Two states provide virtually no funding for legal assistance while New York in 2018
provided $100 million (American Bar Association 2016). Total funding in the United States for
civil legal assistance is roughly $2.25 for every eligible individual as compared to $32 in England
and $12 in New Zealand (Rhode 2004: 106, 112). A 2007 study by the LSC documented the
continuing gap between the legal needs of the poor and the provision of legal services. The report
concludes that “in large portions of the country the justice gap is wider than it was twenty-five
years ago” (Legal Services Corporation 2007).
President Obama increased spending on legal services by $30 million and distributed close to $400
million to 137 legal aid centers across the United States. He also lifted restrictions on the ability of
legal aid lawyers to obtain court-awarded attorney fees for certain types of cases. Forty-five states,
for example, provide attorney fees to lawyers who successfully bring an action for violation of
consumer protection laws while federal law provides attorney fees for enforcement of housing
discrimination laws (Dillard and Savner 2009).
A 2017 report documents that the LSC provided funding to 133 grantees with 843 legal aid offices.
Individuals at or below 125 percent of the federal poverty level (in 2016 this was $14,850 for an
individual and $30,375 for a family) or one in five Americans are eligible for legal assistance.
Nearly 20 percent of the clients of the LSC were 60 years of age or older, and roughly 70 percent of
clients were women. More than 121,000 cases involved domestic violence. Forty-two percent of the
individuals benefiting from LSC assistance were Caucasian, 28 percent African American, 18
percent Hispanic, and 3 percent Asian (Legal Services Corporation 2017a).
Photo 5.2 How does the Justice Gap harm low-income individuals?
© iStockphoto.com/airdone
The Justice Gap is the difference between the legal problems low-income individuals experience
and the resources available to meet these needs. The LSC concludes that this legal “gap” has
stretched into a “gulf.” A 2017 LSC report finds that 71 percent of low-income individuals eligible
for legal assistance experienced at least one civil legal problem in the past year, 54 percent
confronted at least two legal problems, and 24 percent experienced six or more legal issues. The
leading issues affecting low-income individuals were health care, consumer and utilities, rental
housing, child custody, education, disability, governmental income assistance, and veterans’
benefits. The percentage of individuals confronting legal issues is even higher for households with
survivors of domestic violence or sexual assault (97 percent), parents or guardians of children
under 18 (80 percent), individuals with disabilities (80 percent), and rural households (75 percent).
Seventy percent of low-income Americans report that these problems have significantly affected
their lives (Legal Services Corporation 2017b: 6–7, 21).
An estimated one million individuals in 2017 approached LSC-funded legal aid organizations with
an estimated 1.7 million problems. For every client served by an LSC-funded program, more than
one person continues to be turned away or receive inadequate assistance because of insufficient
resources. As a result, low-income Americans will not have their legal needs fully met for over a
million eligible civil legal problems even after contacting legal aid (Legal Services Corporation
2017b: 8, 14, 40, 44).
A “very small percentage” of low-income individuals regardless of their level of education even
attempt to find legal assistance. These individuals seek legal assistance for about 20 percent of their
problems from either a private attorney or a legal aid lawyer. Individuals when asked why they did
not seek legal assistance explained they were unable to afford a lawyer despite the fact that most
households surveyed were financially eligible for free assistance from legal aid. Other respondents
who did not obtain legal representation believed that a lawyer could not help them or did not know
how to find a lawyer. The end result is that 86 percent of the civil legal problems reported by lowincome individuals according to the LSC received inadequate or no legal assistance whatsoever
(Legal Services Corporation 2017b: 6–7).
The ABA Report on the Future of Legal Services cites a study by the Boston Bar Association that
found that in Massachusetts, civil legal aid programs turn away 64 percent of eligible cases. Nearly
thirty-three thousand low-income residents in Massachusetts were denied the aid of a lawyer in lifeessential matters involving eviction, foreclosure, and family law cases involving child abuse and
domestic violence. People seeking assistance with family law cases were turned away 80 percent of
the time (American Bar Association Commission on the Future of Legal Services 2016).
Polls indicated that roughly 80 percent of the public support the provision of basic legal services for
the poor. Legal aid programs nonetheless have suffered a cutback in funding and may once again
find that they may be barred from challenging the broad social conditions that affect the poor
(Rhode 2004: 104). President Trump’s budget each year has proposed the defunding and
elimination of the LSC and only requested the funding required to close the LSC. A congressional
budget agreement restored the LSC budget to the existing $385 million appropriation in 2017,
which is roughly a 17 percent reduction from the LSC 2010 budget appropriation (in inflationadjusted dollars) (Snell and O’Keefe 2017). In March 2018, Congress reversed course and
appropriated $410 million for the LSC. This was the largest increase to LSC’s budget since 2010.
In 2019, Congress again increased LSC’s funding, to $415 million. The ABA Report on the Future
of Legal Services estimates that at least $650 million would be required to meet the legal needs of
individuals living in poverty although there would remain a significant unmet demand by
individuals of moderate means (American Bar Association Commission on the Future of Legal
Services 2016).
Keep in mind that civil legal services attorneys have the lowest median entry-level salary, earn
small increases in salary based on their years of practice, and have the slowest growth in salary
over the past fourteen years of any other group of government lawyers. The median salary for
lawyers entering a firm of fifty or fewer lawyers is nearly double the entry-level salary of a civil
legal services attorney (National Association for Law Placement 2018).
Keep in mind that legal aid returns in benefits much more than is spent on the program.
Legal aid lawyers obtain hundreds of millions of dollars for clients in social security payments,
health and veterans’ benefits, and child and spousal support payments.
Pro bono is yet another method of delivering legal services to the public.
Pro Bono
We should not overlook that lawyers donate their professional expertise to individuals who
ordinarily cannot afford a lawyer’s services. Pro bono publico (“done without compensation for
the public good”) is viewed as part of a lawyer’s obligation to ensure equal justice and reminds
lawyers that their primary responsibility is to uphold the rule of law. There also is the practical
consideration that providing legal representation promotes respect for lawyers and enhances
confidence in the fairness of the legal system. Large firms also find that pro bono work can assist in
recruiting idealistic young attorneys (Rhode 2004: 146–147).
In 1908, the non-binding ABA Canons of Professional Ethics advised in Canon 12 that “a client’s
poverty” might dictate that a lawyer offer his or her services for a reduced fee or “even none at all.”
The ABA’s current Model Rules of Professional Conduct provide that a lawyer should have as a
goal the provision of fifty hours a year of free legal services. This provision has been adopted in
some form by virtually every state bar association’s code of professional conduct.
The thinking is that lawyers are provided a monopoly on legal representation and, in return for this
privilege, should assist the public in gaining full and fair access to the legal system. Pro bono work
also ensures that lawyers will appreciate the problems that confront the average person and
appreciate those areas of the legal system that require reform (Rhode 2015: 54).
In the 1980s, a survey indicated that lawyers donated an average of between five and fifteen hours
per year and that the overwhelming majority of this work was devoted to friends, family, and
employees of lawyers or their clients or to local organizations in which lawyers might make
valuable contacts with potential clients (Rhode 2004: 65–66).
In 2017 the ABA surveyed forty-seven thousand lawyers in twenty-four states about their pro bono
activity in 2016 as well as their most recent pro bono activity. Eighty-one percent of lawyers
believe that pro bono services are either somewhat or very important although only 45 percent
indicated that they were either likely or very likely to provide pro bono legal representation. The
motivation of lawyers in providing these services was to assist people in need and to meet ethical
obligations and to fulfill a sense of duty as a member of the legal profession. On the other hand,
lawyers stated that they were discouraged from offering pro bono services based on a lack of time,
personal and family obligations, and a lack of skill or experience outside their area of specialization
(American Bar Association 2018b).
Should lawyers be required to donate services to the poor? This type of requirement has been
rejected by various commentators as an interference with lawyers’ ability to earn an income and as
a form of “involuntary servitude.” The arguments are as follows. Most lawyers do not necessarily
possess the required expertise to assist people with ordinary problems. Senior partners in large
firms will assign pro bono cases to young lawyers and solo practitioners, and lawyers in small firms
do not have the time or resources to represent clients without receiving compensation and will not
provide adequate representation. Individuals who desire to contribute to society should be left free
to determine what form this contribution should take. They should be able to decide for themselves
whether to engage in pro bono work, contribute money to a charity, or coach a youth sports team.
There also is the consideration that lawyers who represent bankers or retailers or other businesses
are reluctant to bring a case against a firm that is part of the industry that they depend on for their
livelihood. In the last analysis, mandatory pro bono representation is a “tax” imposed on the legal
profession (Rotunda 2016; J. Sullivan 2016).
Although the ABA has rejected mandatory pro bono, it suggests lawyers should aspire to provide
fifty hours per year without charge primarily to “persons of limited means” or to organizations
assisting them. This responsibility also could be fulfilled by providing legal services to charitable,
religious, community, or educational organizations or by making financial contributions to these
groups. Most states follow some version of this ABA standard. Florida, Maryland, and New Jersey
impose the most stringent requirements for pro bono work by lawyers. The 2018 ABA survey on
pro bono activity found that roughly 20 percent of lawyers provided fifty hours or more of pro bono
legal services, 52 percent of respondents provided legal services in 2016, and 20 percent of
respondents had never provided pro bono legal services during their career. The ABA survey
concluded that “despite the aspirational goal [of fifty hours] . . . our attorney population . . . is
falling short of this important goal.” American lawyers on average donate about thirty-seven hours
of pro bono work per year (American Bar Association 2018b). Deborah Rhode writes that lawyers
at large firms average ten minutes per day on pro bono activities, and pro bono activity in the most
profitable firms has been rapidly declining. Eighteen of the one hundred most profitable firms have
agreed to meet the challenge of donating 3–5 percent of their revenues to support legal assistance
(Rhode 2004: 151–155). Lawyers generally are ranked as one of the top paid professions, and yet
the average lawyer donates $85 a year to pro bono organizations (Rhode 2000: 5).
Rhode conducted a comprehensive survey of pro bono work. She found that lawyers in most large
firms quickly learn that pro bono work is not rewarded as highly as work for paying clients and is
at odds with the firm’s stress on profits. Many young lawyers are burdened with debts from their
student years and want to spend time accumulating billable hours and pursuing bonuses. Lawyers
also do not have the time to undertake additional work. Lawyers note they help paying clients on a
daily basis in their traditional practice (Rhode 2004: 160–172).
Rhode reports that most lawyers would welcome more pro bono work. The lack of pro bono
opportunities is a source of dissatisfaction among newly minted lawyers, and fully half of lawyers
would like to devote more time to pro bono work. Yet only a quarter of lawyers work in
organizations or firms that fully credit pro bono work as billable hours, and nearly two-thirds
believe that pro bono work is a negative or is unimportant in determining promotion and
compensation (Rhode 2015: 19).
Leading corporate law firms unexpectedly have donated a significant amount of time to challenging
the Trump administration’s immigration policies despite the fact that several of the firms represent
members of the administration. The firm Paul, Weiss reportedly spent more than $2 million in
billable hours representing children separated from their parents and compelling the government to
unite the children with their deported parents. Other firms challenged the travel ban on Muslims
and defended “sanctuary cities” that refused to fully cooperate with the deportation of immigrants.
Skeptics point out that immigration and the free flow of inexpensive labor generally is favored by
the corporate clients of large law firms. As a result, providing legal representation in immigration
cases is consistent with the firms’ past pattern of avoiding involvement in legal issues that may
conflict with the interests of their corporate clients (Correal 2019).
Rebecca L. Sandefur’s statistical analysis of lawyers’ self-reported pro bono activity provides a
somewhat more sophisticated analysis of pro bono activity. She finds pro bono activity is highest in
state bar associations that directly recruit lawyers to undertake legal assistance, in states with the
highest per capita income for lawyers, and in states in which lawyers are concerned that individuals
may seek assistance from non-lawyers (e.g., accountants) who constitute a threat to the continuing
income of the state’s legal profession (Sandefur 2007).
In another recent study, Robert Granfield finds that attitudes of young lawyers toward pro bono
work are determined by the lawyers’ “workplace setting” rather than by the value placed on pro
bono activity during the lawyers’ legal education. For example, in contrast to Rhode, he finds the
greatest support for mandatory pro bono work is by lawyers in large firms because the lawyers are
able to count pro bono work toward their “billable hours” and obtain valuable legal experience.
Lawyers in large firms embrace pro bono as a means of countering the perception that they are
“money hungry servants of corporate interests.” African American lawyers tend to have a strong
sense of community responsibility and, as a consequence, have a greater involvement in pro bono
work than white lawyers (Granfield 2007).
Benjamin Barton notes that the problem of the lack of legal representation cannot be fully
addressed through pro bono work and that much of lawyers’ pro bono work is devoted to cultural
and arts organizations rather than to the indigent. There also is the persistent objection that a
mandatory pro bono obligation would constitute an unlawful taking of a lawyer’s expertise without
payment (Barton 2015: 195–196).
We next focus on lawyers whose legal practice is based on representing clients who share their
ideological commitment rather than on making money.
Cause Lawyering
We usually think of lawyers as “hired guns” who represent any client who walks in the door and is
willing to pay the attorney’s fee. Lawyers employ their skills on behalf of the client despite their
personal view of the client or the client’s claim. We know that although lawyers tend to gravitate
toward those areas of practice that reflect their personal views, lawyers’ personal opinions or
political ideology on issues such as the environment generally do not determine whether they are
willing to represent an oil company or the Sierra Club.
Some lawyers devote their energies to representing “causes” rather than individuals or large
corporate entities and organizations. Lawyers engage in cause lawyering when they use the law to
advance a social movement or social policy they believe is in the “public interest.” Lawyers
engaged in cause lawyering typically share the goals of the social or political movement they
represent. Cause lawyering may involve working full-time for a social justice organization or may
involve lawyers who supplement their legal practice with cases on behalf of a political or social
movement. Scholars who study cause lawyering observe that it involves an intent to advance a
political cause as well as behavior that advances the cause (Scheingold and Bloom 1998).
Lawyers involved in cause lawyering may work on behalf of organizations such as the American
Civil Liberties Union (which is committed to the protection of freedom of expression and civil
liberties), the Natural Resources Defense Council (which works on behalf of the environment), or
the National Organization for Women (which works to defend the rights of women). One of the
most storied examples of cause lawyering was the legal strategy designed and implemented by
attorneys for the National Association for the Advancement of Colored People (NAACP) that
resulted in the integration of the public schools. During the 1960s, Ralph Nader, a young Harvard
Law School graduate, inspired young lawyers to work in “public interest law” on behalf of
consumers. “Nader’s Raiders” made important reforms in areas ranging from automobile safety to
occupational safety for workers (Sarat and Scheingold 2006; Scheingold and Sarat 2004). Although
cause lawyering traditionally has been identified with liberal causes, the past decades have
witnessed a growth in cause lawyering on behalf of conservative groups and foundations. An
example is the American Center for Law and Justice, founded by Reverend Pat Robertson, which
defends and advances freedom of religion, the “right to life,” and the sanctity of marriage
(Southworth 2008).
Lawyers make various contributions to social movements. Even an unsuccessful case can prove
important to a movement (Scheingold 1974). Several wealthy individuals have established legal
organizations that recruit plaintiffs to challenge issues like affirmative action and connect them
with sympathetic lawyers that the organization pays to take the case (Mencimer 2016).
Legitimacy.
Lawyers file cases that contend that a group possesses a legal right and entitlement to what it is
seeking to achieve. The NAACP achieved court rulings recognizing that the denial of integrated
educational opportunities for African American young people violated their constitutional right to
equal protection under the law. This sometimes is referred to as “framing” an issue.
Political platform.
A legal case allows a group to articulate and highlight its views and to persuade the public of the
merits of its claims. Focusing on the harm suffered by a particular individual in litigation can
“humanize” an issue by drawing attention to the suffering of a specific member of the group.
Individuals who defended segregation were placed on the defensive when confronted with young
children who were denied equal educational opportunity.
Inspiration.
Legal actions may inspire protests, encourage social activism, bring attention to a cause, and place
pressure on elected officials to pay attention to a movement. A legal strategy was important in the
movement against the Vietnam War in the 1960s and has proven significant in the movement
against nuclear weapons and by both sides in the abortion debate.
On the other side of the scale is the risk that an unsuccessful legal challenge may damage a
movement’s legitimacy. An intense debate took place over whether the movement for same-sex
marriage would be hurt in the event that a legal case claiming that the prohibition on same-sex
marriage violated equal protection of the laws proved unsuccessful. The alternative was to continue
to focus on swaying public opinion and persuading state legislatures to amend their laws to
recognize same-sex marriage.
Movement activists at times are critical of cause lawyers who do not put themselves at risk by
engaging in political protests and political organizing. There also can be tension between lawyers
who may want to make conventional legal arguments and activists who may want to use the
courtroom to make political points.
Lawyers who engage in cause lawyering generally have a different perspective than other lawyers
in their view of the role of a lawyer. Studies indicate that most students who enter law school
because they want to use the law to achieve social change quickly abandon their altruistic
aspirations (McGill 2006). They shift their priorities and place a premium on working in a setting
in which they can develop their legal skills, earn a competitive salary, and achieve professional
prestige. Most students also come to accept that the role of a lawyer is to represent anyone in need
of representation rather than to pursue a personal political agenda (Stover and Erlanger 1989).
Cause lawyers generally have aspirations for reform that go beyond a single issue or single case.
Lawyers committed to human rights are committed to litigating issues ranging from immigration to
American Indian and workers’ rights and torture (Kawar 2015; Lee 2014). These lawyers
appreciate that social change requires, in addition to litigation, that they educate the public and the
media on the issues, help organize rallies and protests, and form coalitions with lawyers and groups
that share their commitments (D. Cole 2016: 149–220). A fairly recent development involves state
attorneys general who share a common political point of view combining to bring multistate
litigation on issues ranging from abortion, gun control, and same-sex marriage to global warming.
State attorneys general have worked across party lines in suing pharmaceutical and tobacco
companies (Nolette 2015). Most recently, state attorneys general collaborated in challenging
President Trump’s February 2017 immigration order, and their efforts have been augmented by a
renewed commitment by liberal legal activist groups (Savage 2017).
What accounts for the fact that some lawyers commit some portion of their career to cause
lawyering? Ann Southworth in her study of conservative cause lawyers found that lawyers working
on behalf of conservative religious groups generally share the views of their clients and question
whether lawyers should be morally neutral about the causes they represent.
A number of lawyers in Southworth’s study attended law school with the goal of using the law to
achieve social change. Other lawyers shifted to cause lawyering after finding they derived little
satisfaction from conventional legal practice. There is another group of lawyers who, while
committed to advancing a political cause, also viewed their involvement in cause lawyering as a
good strategy for attracting clients (Southworth 2008: 71–88).
Amanda Hollis-Brusky documents the impact of the conservative Federalist Society, which is what
she terms an “epistemic (knowledge) community”—a group of lawyers, academics, and students
devoted to the advancement of conservative constitutional principles. She illustrates how the
Federalist Society has propagated its views through conferences, law review articles, networking,
appointment of conservative judges on state and federal courts, organizing amicus curiae briefs,
legal advocacy, and drawing attention to judicial decisions that support its philosophy (HollisBrusky 2015). In District of Columbia v. Heller, recognizing the Second Amendment right of
individuals to possess arms, four of the five Supreme Court justices in the majority along with the
judge who wrote the appellate court decision had deep ties to the Federalist Society. Three
Federalist Society members orchestrated the legal strategy, and twenty-one members of the society
signed on to eight different amicus curiae briefs. The Supreme Court opinion relied on articles
written by prominent academic members of the society (District of Columbia v. Heller, 554 U.S.
570 [2008]). The American Constitution Society performs a similar though less influential role in
promoting liberal interpretations of the U.S. Constitution.
The Alliance Defending Freedom (ADF), which was founded twenty-four years ago, is devoted to
protecting fundamentalist Christianity, which the organization believes is under attack in the United
States. The well-funded and -staffed organization engages in litigation and has trained thousands of
lawyers, many of whom have gone on to governmental and judicial posts at the state and federal
levels. The group is committed to combating the “stranglehold” that the American Civil Liberties
Union and its allies allegedly have on American law schools and on the judicial system. The ADF
has been involved in litigation involving opposition to gay marriage, arguing for the right of
individuals to discriminate on religious grounds, restricting the obligation of a business to provide
insurance coverage for contraceptives under Obamacare, arguing for protection of school prayer,
and involving support for the Trump administration’s Muslim immigration ban (S. Posner 2018).
Self-Representation
Courts are gradually recognizing the right to pro se representation (or self-representation). The
organized legal profession during the 1930s sought to preserve a monopoly over the law and
successfully lobbied state legislatures to enact statutes prohibiting the “unauthorized practice of
law.” These statutes were directed against non-lawyers representing clients in court. Judges also
created procedural barriers against individuals representing themselves in court (Rhode 2004: 75–
76).
The movement for pro se representation has been fueled in recent years by the availability of “doit-yourself” legal materials and efforts to make legal remedies less complicated, such as “no-fault
divorce.” Another new development is laws passed in forty-one states that have “unbundled legal
services” and permit individuals to represent themselves in court while hiring lawyers to address
technical matters such as writing legal documents. This modifies the traditional rule that a lawyer is
required to represent an individual throughout the entire legal process.
This has been accompanied by the first stages of a movement to establish special courts for pro se
cases, to employ attorneys to assist pro se litigants, and to provide advisory hotlines, self-help
centers, and online manuals on pro se representation (Rhode 2015: 49).
Deborah Rhode reports that pro se filings constitute a quarter of all new civil cases. One party
appears without the assistance of a lawyer in between 65 percent and 90 percent of uncontested
divorces. Rhode also notes self-representation is increasingly the norm in landlord-tenant disputes,
bankruptcies, and minor criminal charges. She cites a study that indicates that roughly half of the
individuals representing themselves believed that the matter was sufficiently straightforward that
they could represent themselves or explained they could not afford a lawyer (Rhode 2004: 82–83).
Jona Goldschmidt attributes the increase in pro se filings to increased literacy, rugged
individualism, the expense of litigation and attorney fees, and negative views of attorneys. He
argues that preserving the ability of individuals to proceed pro se is crucial to maintaining
confidence in the fairness of the judicial system. Goldschmidt attributes the opposition to pro se to
the economic self-interest of lawyers in maintaining control over courtroom practice (Goldschmidt
2002).
Rhode notes that most judges claim they have an obligation to remain impartial between the parties
in a case and refuse to assist individuals desiring to represent themselves and prohibit court
personnel from assisting individuals to act pro se. She writes that complicated legal forms and
procedures and the long, drawn-out legal procedures make it difficult for individuals to represent
themselves. Judges find themselves with heavy caseloads and typically do not want to encourage
pro se representation, which likely will slow down the adjudication of cases. Court systems are
strapped for cash and will find it difficult to provide the resources required to assist pro se litigants
(Rhode 2004: 82–85).
A related approach to self-representation designed to limit the costs of legal representation was
adopted in Colorado, which now allows non-lawyers to represent claimants in unemployment
hearings. Washington State allows licensed real estate brokers to perform some of the tasks
formerly reserved for lawyers in real estate transactions. In 2012, Washington established a limited
license legal technician program, also known as LLLT. Legal technicians are licensed by the
Washington Supreme Court to advise and assist people going through divorce, child custody, and
other family law matters (Rhode 2015: 50). The court simplification movement advocates the
simplification of the legal process to allow individuals to navigate the court system without legal
assistance (Shanahan and Carpenter 2019).
We end our sketch of lawyer-client relationships with a discussion of the system of regulating the
ethical practices of lawyers. As you recall, self-regulation is one of the characteristics of a
profession.
Legal Ethics
Lawyers historically have been viewed as having little regard for ethics. The philosopher Plato
criticized their “small and unrighteous souls” while the great Roman Seneca noted that lawyers act
as instruments of injustice who are “‘smothered by their prosperity” (Rhode 1998: 284).
Deborah Rhode notes the catalogue of public criticisms of lawyers would fill a lengthy book. The
primary complaint is greed. Rhode observes it is commonly remarked that a lawyer is an educated
individual who “rescues your estate from your enemies and keeps it for himself.” In an ABA
survey, three-fifths of Americans describe lawyers as greedy, and as many as three-quarters believe
legal fees are excessive. A second complaint is that lawyers are impolite, arrogant, and insensitive
and neglect their clients. Only one-fifth of respondents describe lawyers as caring and
compassionate. It should come as no surprise that over 90 percent of parents do not want their
children to grow up to be lawyers. Rhode humorously asks, Why does New Jersey have so many
toxic waste dumps and California so many lawyers? The answer is because New Jersey got first
choice (Rhode 2000: 5).
Discipline of the legal profession in the nineteenth century was the responsibility of judges, and
there was no formal system of regulation. Richard Abel notes that state and local bar associations
professed to be interested in ethics but made little effort to regulate themselves. There was a move
to formalize ethical rules in the early twentieth century, which resulted in the 1908 Canons of
Professional Ethics. Jerold Auerbach writes that the canons were directed at solo practitioners and
focused on prohibiting advertising, banning referral fees, promoting litigation by individuals, and
barring lawyers from listing legal specialties (Auerbach 1976: 42–43). Abel observes that selfregulation is an essential component of an occupation’s claim to the status of a profession and that
self-regulation provides protection against state regulation (Abel 1989: 142).
The most obvious explanation for ethical codes of conduct is that these documents reflect lawyers’
view that they perform an important social function in defending the rights and liberties of the
individual and hold themselves to the highest standards. Ethical codes are intended to assure
individuals that they are in safe and secure hands when they consult a lawyer: in other words, you
can trust your lawyer. The now-deceased prominent lawyer and diplomat Sol Linowitz writes that
the primary feature of the legal profession is credit emptor (“let the buyer trust”) rather than caveat
emptor (“let the buyer beware”) (Linowitz 1994: 5).
The legal profession clearly is concerned with ethics, judging by the constant concern with revising
ethical codes, the requirement that law schools offer classes in professional ethics, and the
provision of a separate section of the bar exam on legal ethics. Most state bars require that a portion
of a lawyer’s continuing legal education include a component on ethics. The ethical system is
based on the premise that if lawyers are taught their ethical responsibilities, they will adhere to
these standards regardless of pressures from clients and colleagues, the temptations of financial
fraud, or other financial misconduct.
Another aspect of the ethical system is that individuals who apply for admission to a state bar must
submit to a “character” review in which they submit references and disclose all information that
may call their “good character” into question. Individuals convicted of a felony (a crime punishable
by a year or more in prison) generally will have a difficult time gaining admission.
Despite this focus on ethics, surveys indicate a significant number of lawyers are uninformed about
their ethical responsibilities or simply disregard them. Lawyers generally are prohibited from
paying a lawyer who refers a client to them. The reason is that the referral fee will be passed on to
the client, resulting in an increase in the cost of legal services. The practice of law is a profession
rather than a business, and attorneys should not be paid for a simple referral. Yet 62 percent of
lawyers in one poll approved of payments for referrals, and 67 percent thought the practice was
permissible or did not know whether it was permissible (Abel 1989: 143). Lawyers in firms often
are taught by their mentors that ethical guidelines do not apply because kickbacks and referral fees
are a customary part of the practice of law (Abel 2008: 498).
The legal profession was rudely awakened to the reality of the disciplinary system in 1970 when
former U.S. Supreme Court justice Tom C. Clark reported that a three-year study revealed a
“scandalous situation” in which lawyers viewed the disciplinary system with reactions ranging
from “apathy to outright hostility.” The Clark committee found that disciplinary action was
“nonexistent in many jurisdictions” and that procedures were outdated and ineffective (M. Devlin
1994: 369–379).
As part of the reform effort, the Model Rules of Professional Conduct were adopted by the ABA
in 1983. This document is intended as a model to be followed by state bar associations. The Model
Rules of Professional Conduct replaced the 1969 Model Code of Professional Responsibility,
which, in turn, replaced the 1908 Canons of Professional Ethics. The model rules have been
adopted by virtually every state bar association although there are significant differences in certain
areas such as the standards for advertising.
The Model Rules of Professional Conduct address a number of areas, the most important of which
are listed as follows.
• Lawyer-client relationships. Fees for legal representation, information that should be kept confidential,
safekeeping of money and property, declining and terminating legal representation, and the obligation to
provide competent and diligent representation.
• The lawyer as counselor. The obligation to offer objective and disinterested advice and the duty, when
dealing with two individuals, to fairly resolve a dispute.
• The lawyer as advocate. The obligation to avoid litigating claims that lack merit and to avoid
unnecessary delay, trial publicity, lawyers as witnesses, and responsibility of prosecutors.
• Relations with persons other than the client. The duty to communicate with an opposing party through
one’s lawyer and guidelines for communicating with unrepresented parties.
• Law firms and associations. Responsibilities toward partners, associates, and paralegals, and procedures
for practicing in jurisdictions where a lawyer is not admitted to practice.
• Public services. Pro bono activities and obligation to accept court appointment to represent indigents.
• Information regarding legal services. Limitations on advertising and on soliciting clients.
• The integrity of the profession. Disciplinary proceedings and misconduct, duty to report misconduct,
and prohibition on political contributions intended to assist in obtaining legal business or judicial
appointments.
In August 2016, the ABA amended its ethics rules to provide that it is professional 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 related to the practice of law.”
This includes statements of bias or prejudice toward others as well as derogatory verbal or physical
conduct. The rule extends to legal settings as well as the workplace and professional social
activities.
The rule change, in part, was in response to a number of complaints by female lawyers that they are
subjected to sexist and demeaning comments by opposing lawyers. Opponents objected that the
rule stifles lawyers’ freedom to express themselves and that the amendment to the rules was driven
by “political correctness” rather than by norms of professional conduct. The rule excludes
statements made in the course of legitimate legal representation such as courtroom advocacy or
comments made when consulting with a client.
Each rule in the model code is followed by comments elaborating on the particular obligation. The
violation of several of these ethical rules constitutes a crime and may result in criminal liability. As
a result, a lawyer’s ethical violations may result in criminal prosecution and, as discussed as
follows, a civil suit brought by a client for malpractice. The basic definition of professional
misconduct is reprinted in Table 5.2.
Table 5.2 Rule 8.4 Misconduct
Table 5.2 Rule 8.4 Misconduct
It is professional
misconduct for a
lawyer to
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of
another;
(b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of
justice;
(e) state or imply an ability to influence improperly a government
agency or official or to achieve results by means that violate the Rules
of Professional Conduct or other law; or
(f) knowingly assist a judge or judicial officer in conduct that is a
violation of applicable rules of judicial conduct or other law.
A violation of ethical standards is subject to professional discipline. The ABA in 1993 adopted the
Model Rules for Lawyer Disciplinary Enforcement, which have been amended on several
occasions and have been adopted by most state bar associations. The model rules establish state
boards to hear ethics complaints; these boards are composed of lawyers and of members of the
public appointed by the state supreme court. The board is assisted by a full-time legal staff of
lawyers who investigate and prosecute complaints. An “intake office” is charged with assisting
members of the public to file a complaint. The hearings initially are conducted by local hearing
boards composed of lawyers and members of the public who hear from the staff lawyer as well as
from the lawyer charged with an ethics violation. Appeals may be taken to the state board and to
the state supreme court. Punishment that results in a limitation on a lawyer’s ability to practice law
is required to be approved by the state supreme court. The state supreme court in most states has
responsibility for licensing lawyers to practice and is the appropriate body to determine whether a
lawyer has violated the terms of the license and whether he or she should be disciplined. State bars
generally try to avoid these types of hearings for matters such as claims of excessive legal fees and
provide for mediation or efforts to assist the parties to resolve their differences.
The available sanctions or penalties include the following:
• Disbarment. A permanent prohibition on the ability of a lawyer to practice law, which is imposed for
the most serious violations.
• Suspension. The lawyer is prohibited from the practice of law for a limited period of time.
• Probation. A lawyer is allowed to practice while undergoing rehabilitation for a problem such as
alcoholism or drug abuse that contributed to the ethics violation. A failure to satisfactorily complete the
rehabilitation program results in a more serious penalty.
• Reprimand. A letter is sent to the lawyer noting minor misconduct. These matters can be disposed of
without a formal hearing if the lawyer agrees to accept responsibility.
• Restitution. Disciplinary sanctions generally require the lawyer to provide financial reimbursement to
the client, and the lawyer also is directed to reimburse the state disciplinary board for all expenses.
The model rules list various aggravating as well as mitigating factors. A penalty likely will be more
severe when there is a pattern of misconduct, a failure to cooperate with the investigation, a refusal
to admit misconduct, a fraud on the court, or a vulnerable victim, and when a lawyer should be
aware of ethical rules based on long experience in the practice of law. Mitigating factors include a
history of ethical conduct, documented personal or emotional problems, a cooperative attitude,
professional help for any problems, and making restitution or taking steps to restore the damage
caused by the misconduct.
The results of the adjudication of the complaint are communicated to the individual bringing the
complaint and to the lawyer charged with an ethical violation. Reprimands for serious ethical
violations and suspensions and disbarments typically are made public (“public penalties”).
Penalties for minor misconduct typically are not publicized (“private penalties”). State bars
generally issue statistical reports that summarize activities over the course of a year. Oregon is the
only jurisdiction that makes the results of all complaints public (Abel 2008: 504).
In 2016, disciplinary agencies received 87,487 complaints, and 23,847 were pending from prior
years. Most cases were dismissed because the complainant failed to submit a complaint that
constituted a violation of the ethical code or because evidence of a violation was lacking.
Ultimately, 3,017 lawyers were charged with an ethical violation. Roughly 4,745 individuals were
sanctioned (including complaints from prior years). This included over 650 disbarments, more than
1,300 suspensions, and over 700 reprimands. More than 350 lawyers were placed on probation,
nearly 150 lawyers were ordered to pay restitution, and 1,717 lawyers were directed to pay other
financial costs. Thirty-three lawyers who were disbarred were reinstated, and 249 lawyers were
reinstated after having had their legal license suspended (American Bar Association Standing
Committee on Professional Regulation 2018). Bar associations understandably want to be certain
that a public sanction is merited, and thus they closely examine complaints. The result is that a
complainant may grow frustrated with the fact that the time from the filing of a complaint to the
imposition of a public sanction can take on average 426 days in Pennsylvania, 400 days in Georgia,
383 days in Iowa, fifteen months in Maryland, and eleven months in Minnesota (American Bar
Association Standing Committee on Professional Regulation 2018). One improvement is the
creation of a nationwide online database by the ABA in 1994 that allows disciplinary agencies to
determine whether a lawyer has been subjected to discipline in another state.
Benjamin Barton analyzed disciplinary complaints in 2009 and found that 125,596 complaints were
filed, which amounted to 1 complaint for every 10 lawyers. Following investigation, 6,900 (5
percent) of the complaints led to formal charges. Public sanctions were imposed on 5,009 lawyers,
and 798 were disbarred (0.6 percent of complaints). Barton notes that because only public sanctions
are made available to the public, the disposition of the vast majority of complaints remains
confidential (Barton 2015: 213).
It should be recognized that the decisions of state disciplinary boards may differ significantly from
one another. South Carolina suspended a lawyer who stole $1,800 from her daughter’s Girl Scout
cookie sales although other states imposed a suspension or additional ethics education on lawyers
who stole a client’s funds. The process has been criticized for not fully protecting the public
because clients cannot obtain a record of past complaints filed against a lawyer that did not result in
sanction, and in most states a lawyer who has been disbarred is able to reapply for admission
(Rhode 2000: 160–161).
As you undoubtedly recall, Jerome Carlin found that solo practitioners and individuals from small
firms who attended lower-status law schools and who experienced difficulty in attracting clients
were most likely to engage in ethical violations (Carlin 1966). A study of a small midwestern city
(Handler 1967) and an Australian study (Gandossy 1985) supported Carlin’s findings. A review of
disciplinary proceedings in California, Illinois, and the District of Columbia in 1981–1982 found
80 percent of disciplinary complaints were brought against solo practitioners and no complaints
were brought against lawyers who practiced in a firm with more than seven lawyers. Nationally,
solo practitioners accounted for less than half of all lawyers (48.6 percent), and firms with more
than seven lawyers accounted for roughly the same proportion of the legal profession (Abel 1989:
145). The question is whether solo practitioners are more unethical than other lawyers or whether
their ethical lapses result from being overworked and living on the economic edge. There also is the
possibility that disciplinary boards are willing to overlook violations by corporate lawyers or that
corporate firms are able to reach private settlements with clients who complain about ethical
violations (Abel 2008: 506). There is evidence that lawyers in certain practice areas are more likely
to be the subject of ethical complaints than other lawyers. The emotional and economic tensions
involved in divorce and child custody cases result in a disproportionate number of ethical
complaints being directed against family law attorneys (Mather and McEwen 2012).
The statistics on disciplinary violations likely do not provide a full picture of the extent of
disciplinary violations among the legal profession. A significant percentage of clients lack
knowledge of the availability of disciplinary procedures or choose not to file a complaint. A survey
found only 13 percent of clients knew where to file a complaint. Clients also are not fully informed
about the ethical responsibility of lawyers and may not understand that their lawyer has acted in an
unethical fashion (Abel 2008: 500). In many instances, lawyers’ ethical violations are undertaken to
promote the interests of clients, and the clients clearly are not about to complain. Lawyers also are
reluctant to complain about their colleagues. Only a tenth of all grievances are filed by lawyers
against their fellow practitioners (Abel 1989: 145). Why? Lawyers do not want to take the time and
effort to file a complaint, create “bad blood” with a fellow attorney, and draw attention to the
ethical abuses of their profession (Rhode 2000: 159).
Another aspect of the disciplinary process is that not all behavior that lowers respect for the legal
profession constitutes a violation of the code of professional conduct. Deborah Rhode catalogues a
list of perfectly ethical trial tactics that transform trials into a “war” between the parties rather than
a search for the truth. These tactics include creating delays, humiliating witnesses, and coaching
witnesses to offer evasive replies (Rhode 2000: 83, 97–102). In some instances, disciplinary bodies
have determined that this type of conduct constitutes “excessive zeal” (Abel 2008: 377–378).
Legal disciplinary procedures have been criticized as slow and secret and insulated from public
accountability. Only one-third of Americans believe that disciplinary procedures are effective in
controlling abuse. One survey showed that only 20 percent of lawyers in California believed the
disciplinary system was effective and 90 percent wanted to keep control over discipline within the
legal profession.
Bar association disciplinary procedures are not the only mechanism to monitor lawyers.
Various federal agencies may bring their own enforcement actions. The Securities and Exchange
Commission (SEC) may suspend a lawyer who has engaged in misconduct from representing
clients in the field of securities law (e.g., stocks and bonds). An example would be a lawyer
involved in misrepresenting the financial situation of a business that is making a public stock
offering.
Judges may hold lawyers in contempt of court (a fine) for misconduct during a trial. This might
involve destroying or concealing evidence or criticizing the judge throughout a trial as biased or
unfair. A Seattle law firm was fined over $300,000 by the Washington Supreme Court for
withholding documents in a case in which a young child suffered a brain injury as a result of taking
an asthma drug. The documents only were discovered after four years of litigation as a result of a
leak from a “whistle blower” (Rhode 2000: 87). Rule 11 of the Federal Rules of Civil Procedure
authorizes judges to fine lawyers who intentionally bring unfounded or frivolous (silly) legal
proceedings or drag out trials in an effort to harass the defendant (Abel 2008: 503).
Another option available to defendants is to file a malpractice action (Kritzer and Vidmar 2018).
Oregon is the only state that requires lawyers to possess malpractice insurance. Between 20 percent
and 50 percent of lawyers in other states lack malpractice insurance. Malpractice insurance is an
important safeguard for the public because an individual who sues the lawyer knows the insurance
company will pay the costs of any legal judgment against the lawyer or can be confident the
insurance company will settle the claim against the lawyer (Abel 1989: 154). Malpractice is
difficult to prove because you must establish that your lawyer’s obvious negligence caused you to
lose the case. You then must prove a financial loss as a result of the negligence. In 2007, roughly
thirty-five thousand individuals filed malpractice claims, and close to one-half of individuals filing
claims were successful. Between 2011 and 2015, around 19 percent of malpractice claims stemmed
from personal injury, 15 percent involved real estate, and 12 percent concerned wills, trusts, and
other matters involving inheritance. Thirty-four percent of claims were filed against solo
practitioners, and 32 percent of claims were filed against firms of between two and five lawyers.
“Substantive errors” such as a failure to know the law, failure to be aware of the required
procedures, or inadequate investigation of the facts constituted 43 percent of attorney errors. Nearly
30 percent of errors resulted from administrative mistakes such as missing the deadline for filing a
legal document, and 12 percent resulted from a failure to communicate with clients about decisions
in a case (American Bar Association Standing Committee on Lawyers’ Professional Liability
2016). Rhode reports that between 10 percent and 20 percent of lawyers engage in behavior that
may expose them to a malpractice suit in any given year and that insurance payouts are estimated at
$6 billion per year (Rhode 2000: 165).
Clients suing their lawyers generally received modest recoveries. The ABA Standing Committee on
Lawyers’ Professional Liability profile of legal malpractice claims between 2012 and 2015, based
on information from insurance companies, records that nearly 40 percent of claims paid were in the
$1,000 to $10,000 range and another 37 percent were in the $10,001 to $50,000 range. Eleven
percent of payments were $50,000 to $100,000, and roughly 7 percent involved a payment between
$100,001 and $250,000. Payments of $500,000 to $999,999 constituted somewhat more than 1
percent of recoveries, and payments of $1 million or more constituted less than 1 percent of all
recoveries. Insurance companies continued to offer settlements to plaintiffs early in the litigation
process to avoid the risk of a jury returning a large damage award at trial. Over 60 percent of
malpractice suits are either settled or dismissed prior to trial. Keep in mind that the costs of a legal
action and legal fees significantly limit the amount that a plaintiff actually receives from a
malpractice claim (American Bar Association Standing Committee on Lawyers’ Professional
Liability 2016).
Lawyers are not above the law and may be criminally prosecuted. In 2017, Kathleen Kane, the
former state attorney general of Pennsylvania, was convicted of perjury, false swearing, and
obstruction of justice and other crimes and was sentenced to serve ten to twenty-three months in
county jail and eight years’ probation for during her term in office leaking confidential grand jury
testimony, then denying the leak to law enforcement investigators (Hurdle and Pérez-Peña 2017).
What is the motivation of lawyers who engage in misconduct? One explanation is that this
misconduct is due to “ethical fading” or lawyers viewing ethical rules as increasingly less important
and as an impediment to achieving their objectives as they progress through their careers. A second
theoretical perspective is “ethical learning,” which hypothesizes that young lawyers learn from the
senior lawyers in their firm that the idealistic rules they studied in law school have little importance
in the real-world practice of law. Yet another perspective is that ethical violations are committed by
a small group of “rotten apples” (Granfield and Koenig 2003; Schlitz 1999; Suchman 1998).
Richard Abel studied lawyers found to have engaged in ethical misconduct and discovered that the
attorneys were experienced lawyers who engaged in a pattern of misconduct over a number of
years. Each of the lawyers was in need of money to keep his or her office functioning or to meet
house expenses. These attorneys found themselves overwhelmed and resorted to desperate
solutions. One lawyer failed to keep track of his client’s cases and neglected to appear in court and
covered up his errors by drafting false judicial judgments indicating the judge had ruled against the
client. The motivation of pure greed led real estate lawyers in New York City to use their expertise
to assist individuals who they mistakenly believed were wealthy foreign leaders to sneak money
into the United States, which then was used to purchase luxury homes (Story 2016).
Another lawyer viewed himself as “above the law” and justified paying kickbacks to insurance
agents who were willing to settle his clients’ cases on the grounds that “everyone did it.” This
lawyer’s ego was so fragile that he could not accept losing a case, and he explained that the
kickback guaranteed the insurance company would compensate his client for his or her injury.
The lawyers who committed ethical violations considered themselves “special” and believed that
their personal problems entitled them to disregard the rules. One lawyer stated that he could not be
expected to meet deadlines when his mother was sick. It also was important that most of the clients
who were the victims of unethical conduct were injured, jobless, immigrants, or elderly and were
easily exploited by the lawyers (Abel 2008: 491–497, 513).
5.2 You Decide
In 1982, public defender Marc Miller was assigned to represent Edgar Hope, who along with Alton Logan was charged
with killing a security guard and wounding a second security guard during a robbery at a McDonald’s restaurant. Hope
shared with Miller that he did not know Logan, that Logan was innocent, and that his co-perpetrator was Andrew Wilson,
standing trial at the time for killing two police officers. Miller told Logan’s lawyer that his client was innocent. Miller also
stated to the public defenders representing Wilson, Dale Coventry and W. Jamie Kunz, that their client had been involved
in the McDonald’s killings.
Coventry and Kunz questioned Wilson, who admitted to being the shooter at the McDonald’s robbery. The two lawyers
knew that Wilson was truthful because ballistics tests connected a shotgun shell discovered at McDonald’s with a weapon
found at Wilson’s residence. The deceased police officers’ firearms also were seized at the same location.
Coventry, Kunz, and Miller, after consulting other lawyers and experts, concluded they were barred by the attorney-client
privilege from revealing that Logan was innocent. The three swore an affidavit that did not name Wilson but indicated
that they had knowledge through privileged sources that Logan was innocent, which was placed in a sealed envelope and
deposited in a locked box in Coventry’s bedroom.
Logan avoided the death penalty and was sentenced to life imprisonment. Wilson, who was confronting capital
punishment, agreed that the lawyers could reveal Logan’s innocence after his death. Wilson’s death sentence, however,
was reversed when it was discovered that his confession had been obtained as a result of police torture.
Wilson and Hope never came forward with the truth, and when confronted by Logan in prison, Wilson reportedly smiled
and walked away.
Wilson ultimately passed away after twenty-six years in prison, and Coventry and Kunz finally produced an affidavit that
resulted in the release of the 54-year-old Logan.
Kunz, when asked about remaining silent for all these years, responded, “If I had ratted him out . . . then I could feel
guilty, then I could not live with myself. . . . I’m anguished and always have been over the sad injustice of Alton Logan’s
conviction. Should I do the right thing by Alton Logan and put my client’s neck in the noose or not? It’s clear where my
responsibility lies and my responsibility lies with my client.”
A Cook County, Illinois, judge issued a certificate of innocence to Logan, and the City of Chicago reached a $10.25
million settlement with Logan based on evidence that now-imprisoned Chicago police officer Jon Burge had concealed
implicating Wilson in the homicide.
The ethical rules vary from state to state although several states provide that a lawyer may break a confidence to halt an
execution but not to free an innocent inmate. Massachusetts seems to be unique in allowing lawyers to violate a privilege
to prevent a “wrongful execution or incarceration of another.” Most states consider that the attorney-client privilege is not
waived by the death of a client. This is because the family still may be concerned about the deceased’s reputation, civil
liability, or retribution. There is the complicating factor of whether a lawyer has proof of a wrongful conviction other than
the statement of his or her client.
Should a lawyer violate the attorney-client privilege when he or she knows an innocent individual is imprisoned or
sentenced to death?
International Perspective: Legal Education in Germany and
France
The U.S. system of legal education is fairly unique. Consider that legal education in European civil
law systems is an undergraduate degree. Classes typically are taught as a lecture and focus on how
to read statutes rather than on cases. There is even less focus on preparing students to practice law
than in the American system, and most European countries require an apprenticeship following the
completion of law school.
In Germany, a law graduate must pass the “first state examination” as the initial step toward
entering an apprenticeship. The Referendar system involves spending two years as an apprentice in
a variety of legal settings. For example, a young lawyer may spend time working in a private firm,
government agency, or court. The apprentice lawyer, after passing a second state exam, is ready to
embark on the career of his or her choice. A young lawyer once having decided to pursue a
particular legal career will find it difficult to change careers (Glendon, Carozza, and Picker 2016:
94–103).
France possesses a much more complicated system. A French student must first study for three
years and obtain a university degree (licence en droit) followed by an additional year for a master’s
degree. This last year involves classes in legal ethics and the drafting of documents and two
internships. The French law student then must pass the bar exam to become eligible to enter a
period of practical training (Referendarzeit). This entails a two-year internship spent rotating
between various branches of the legal profession. Following the completion of the internship, the
individual is eligible to take a second state bar examination. The successful applicant then becomes
an avocat. The historical evolution of the French legal profession led to the requirement that
an avocat retain the services of an avoué to handle the paperwork on appeals. These two branches
of the French legal profession were partially merged in 1971. There are some remaining
distinctions. For example, only a select group of senior avocats may practice before the highest
court in France (the Court of Cassation), and an avoué continues to prepare paperwork for appeals.
There is yet a third group of conseils juridiques who are licensed to provide legal advice to
individuals, businesses, and corporations. In 1992, avocats were merged with conseils juridiques,
creating a single profession of avocats authorized to appear in court, prepare documents, and
provide advice to individuals and corporations.
The notary is an important legal institution in European civil law and very different from the
American notary public. The notary is authorized to prepare documents such as wills, property
transfers, mortgages, and marriage and divorce contracts and has various other responsibilities
relating to legal documents. Notaries also authenticate documents (indicate that they are “real”) that
are introduced at trial and are obligated to retain archives of all the documents they prepare. There
are a limited number of notaries, and a law graduate must pass a special exam to become a notary
and then must wait for a vacancy. A notary is expected to be neutral and objective and is to provide
professional advice to clients on how best to draft a will or to structure a prenuptial agreement
(Merryman and Pérez-Perdomo 2007: 106).
What about a law graduate aspiring to be a judge? In Germany following the second bar
examination, the young lawyer serves a three- to four-year probationary period as a lower court
judge and then is eligible for a permanent appointment. In France, students desiring to be a judge
during their last year in law school prepare to pass a competitive exam. Successful applicants then
are enrolled in a special thirty-one-month course of study at the National School for the Judiciary.
This period of academic study is followed by a series of internships with agencies ranging from the
police to prisons and a judicial apprenticeship. The third part of the program includes placement
with various judges and working in the office of an avocat. Candidates then are eligible for
permanent appointment as a judge (Glendon et al. 2016: 102–109).
The civil law system has the advantage of ensuring well-prepared judges and provides for full
access of women and minorities to the judiciary. On the other hand, judges are civil servants who
are concerned about promotion and are hesitant to make controversial decisions.
Another aspect of the civil law system that we would find unusual is the procurator (the equivalent
of the district attorney). The procurator, in addition to prosecuting criminal cases, is authorized to
intervene in civil cases to represent the public interest (e.g., on the issue of affirmative action). The
procurator technically is a member of the judiciary and undergoes the same training as a judge and
may move between the prosecutor’s office and the judiciary. In France, the judges are referred to
as magistrature assise (sitting judiciary) and the procurators as magistrature debout (standing
judiciary) (Terrill 2016: 169–170).
Professors in both the common law and civil law systems must demonstrate academic excellence.
Professors in the civil law system must undergo a lengthy training period and in Germany are
required to produce a major piece of research (Habilitationsschrift) after completing a doctoral
degree in order to obtain the rank of “private docent.” Judges and lawyers in the civil law system
tend to look to a small number of respected legal academics to guide their interpretation of the legal
statutes (Merryman and Pérez-Perdomo 2007: 108–110).
Chapter Summary
The ABA has helped increase the access of the poor and middle class to the justice system by
supporting legal aid and pro bono representation. The involvement of ideologically inclined
lawyers in cause lawyering has led to significant legal victories for minorities and the poor and for
conservative causes. Law schools also have demonstrated a strong commitment to affirmative
action admissions to law schools although minorities remain underrepresented among law students.
Solo practitioners and small firm lawyers have managed to expand access of the working class to
the justice system through advertising, contingent fees, group legal services plans, and challenges
to minimum fee schedules. There also is a growing movement among ordinary citizens for pro se
representation.
The legal profession has avoided government regulation of legal services by providing dissatisfied
clients with the opportunity to file ethics complaints against their lawyer. This system of
professional regulation is criticized as slow and ineffective and for focusing almost exclusively on
solo practitioners and lawyers in small firms.
Chapter Review Questions - List the areas in which the legal needs of the middle and working classes are unmet. What are the
barriers to middle- and working-class access to a lawyer? - Why is advertising by lawyers a controversial practice?
- What are the arguments for and against contingent fee arrangements?
- Describe how legal services plans operate.
- What is cause lawyering? Are lawyers acting unprofessionally who engage in cause lawyering rather
than representing a wide variety of clients? - Describe the core principles of legal ethics. What is the process of adjudicating legal ethics complaints?
Why do lawyers commit ethical violations? - After reading the chapters on lawyers in the text, are you more or less inclined to become a lawyer?
Terminology
• cause lawyering 201
• class action 191
• contingent fee 190
• continuing legal education 205
• group legal services plans 193
• Justice Gap 198
• Legal Services Corporation 196
• Model Rules of Professional Conduct 206
• pro bono publico 199
• pro se 203
Answers to Test Your Knowledge - False
- False
- False
- False
- False
- False
- True
- False
- False