Lawyering for the Middle Class: Foreword
Lawyering for the Middle Class: Foreword
Nancy J. Moore 0
0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
Recommended Citation Nancy J. Moore, Lawyering for the Middle Class: Foreword, 70 Fordham L. Rev. 623 (2001). Available at: http://ir.lawnet.fordham.edu/flr/vol70/iss3/1
LAWYERING FOR THE MIDDLE CLASS
Nancy J. Moore*
In 1994, Roger Cramton published a seminal article entitled
Delivery of Legal Services to Ordinary Americans.' In that article
Cramton began with the premise that -[t]he [legal] profession is
organized in two hemispheres: lawyers who serve individuals and
those who serve corporate clients." 2 Conceding that lawyers and
clients in both hemispheres share common problems, he focused
specifically on deficiencies in the provision of legal services to
individuals.3 The article was wide-ranging, covering such diverse
topics as incompetence and lack of diligence,4 cost and availability,'
and trust, loyalty, and integrity.' Cramton examined existing reform
proposals, including mandatory pro bono.7 improving publicly funded
legal services for the poor,8 and relaxing present unauthorized practice
and form-of-practice restrictions. Ultimately, his personal
recommendations for reform similarly covered the gamut, from
tightening regulations on client trust accounts"' to mandatory
* Professor of Law. Boston University School of Law. B.A.. Smith College, 1970;
J.D., Columbia University. 1973.
1. Roger C. Cramton. Deliver, of Legal Seriices to OrdinaryAmnericans, 44 Case
W. Res. L. Rev. 531 (1994). The paper was prepared for the National Institute on the
Profession of Law in the 21st Century at Case Western Reserve University School of
Law,June 1-3, 1993. Id. at 531 n.*.
2. Id. at 539. The concept of the "'two hemispheres" of lawyering had its origins
in the well-known studies of Chicago lawyers conducted by Heinz and Laumann. See
id. at 538 n.14 (citing John P. Heinz & Edward 0. Laumann. Chicago La%yers: The
Social Structure of the Bar (1982)).
3. Id. at 540-41.
4. Id. at 547-50.
5. Id. at 550-51.
6. Id. at 551-62.
7. Id. at 578-87.
& Id at 587-601.
9. Id. at 562-78. 615-17.
10. Id. at 612.
reporting of malpractice awards," and from compulsory arbitration of
fee disputes 2 to enhanced competition in legal services markets. 3
The articles in this symposium issue on "Lawyering for the Middle
Class" build on the foundation established by Cramton, as well as by
others, such as Deborah Rhode, who have written extensively about
the problems ordinary Americans face in navigating the legal system. 4
The symposium articles provide us with more detailed information
concerning the nature and scope of the underlying problems,
particularly addressing the question of whether there are indeed vast,
unmet legal needs on the part of middle-class persons. In addition,
the articles in this symposium help us to evaluate both existing and
newly proposed solutions, through a combination of historical
examination of current barriers to competition and comparative
analysis of analogous developments in the medical profession. The
articles are particularly helpful in assessing where we as a profession
stand at the beginning of the twenty-first century given a variety of
new influences on professional responsibility,1 5 including changes in
the organization and structure of the legal profession and dramatic
developments in the technologies available to both lawyers and
11. Id. at 612-13.
12. Id. at 614.
13. Id. at 615-17.
14. See, e.g., Deborah L. Rhode, In the Interests of Justice (2000); Deborah L.
Rhode, Access to Justice, 69 Fordham L. Rev. 1785 (
); Deborah L. Rhode,
Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 Fordham L.
Rev. 2415 (1999); Deborah L. Rhode, Too Much Law, Too Little Justice: Too Much
Rhetoric, Too Little Reform, 11 Geo. J. Legal Ethics 989 (1998); Deborah L. Rhode.
The Professionalism Problem, 39 Win. & Mary L. Rev. 283 (1998); Deborah L.
Rhode, Professionalismin Perspective:Alternative Approaches to Nonlawyer Practice,
22 N.Y.U. Rev. L. & Soc. Change 701 (1996). Deborah Rhode is a Distinguished
Visiting Professor this year at Fordham University School of Law, which organized a
Legal Profession Colloquium in November 2001 in her honor. The Colloquium was
organized around short essays prepared by each invited participant on the question,
"What does it mean to practice law In the Interests of Justice in the twenty-first
century?" These essays will be published by the Fordham Law Review. The essay I
am contributing is entitled In the Interests ofJustice: Balancing Client Loyalty and the
Public Good in the 21st Century, 70 Fordham L. Rev. (forthcoming Apr. 2001).
15. See, e.g., Nancy J. Moore, New Influences on Professional Responsibility
(Nov. 5, 2001) (unpublished manuscript, on file with author). This paper was
delivered as the principal address to the Dan K. Moore Ethics Program at the
University of North Carolina at Chapel Hill on November 5, 2001. The title
originated with Professor Ron Link of UNC-Chapel Hill, who organized the program.
The paper addresses three "new influences" on professional responsibility for
lawyers: the American Law Institute's ("ALI") newly published Restatement of the
Law Governing Lawyers; the work of the ABA Commission on the Evaluation of
Rules of Professional Conduct ("the Ethics 2000 Commission"); and the work of the
ABA Commission on Multijurisdictional Practice ("the MJP Commission"). I am the
Chief Reporter for the Ethics 2000 Commission.
16. Id. The work of the Ethics 2000 Commission responded to three recent
developments: (1) the adoption of the ABA Model Rules of Professional Conduct by
forty-four states but with significant variations; (
) the newly recognized legal
The articles can be categorized in two groups. The first (and
largest) group addresses the difficulties middle-class Americans face
in obtaining access to legal services." Providing a more detailed
examination of Cramton's premise that middle-class persons do not
have adequate access to representation, these articles then discuss a
variety of proposed solutions, including creating lawyer profiles to
help prospective clients choose competent counsel, expanding prepaid
legal services, creating an alternative hierarchy to encourage more
and better qualified lawyers to serve the middle class, and relaxing
restrictions on the roles played by non-lawyers in the provision of
legal services, particularly in taking advantage of the possibilities
inherent in the use of the Internet. The second group of articles takes
an entirely different approach by examining ethical issues in practice
areas that have a unique impact on middle-class Americans."5 The
practice areas include elder law, arbitration, and mediation. The
ethical issues include the limitations on loyalty and confidentiality
when a lawyer represents a client who is a fiduciary to an elderly
person with severely diminished capacity, the application of the
advocate-witness rule in labor arbitrations and in-court proceedings
involving middle-class parties, and the duty of candor and allocation
of decision-making authority in different forms of mediation.
I. MIDDLE-CLASS ACCESS TO LEGAL SERVICES
A. Defining the Problem
Of the symposium authors who address the question, the conclusion
is virtually unanimous that middle-class persons do not have adequate
access to legal representation. 9
Whereas Cramton relied almost
framework for law practice reflected in the ALl Restatement. and (3) the dramatic
changes in the organization and structure of law practice. including significant
developments in the technologies available to la%%-vers and clients.
17. See infra Part I.
18. See infra Part II.
19. See George C. Harris & Derek F. Foran, The Ethics of Midlle-Class Access to
Legal Services and What We Can Learn From the Medical Professin's Shft to it
Corporate Paradigm. 70 Fordham L. Rev. 775, 795 (
) ("While difficult to
compare because of their different methods and focus, the bar association legal needs
studies confirm as a whole what has long been assumed. A significant number of
Americans with legal needs are not getting professional assistance."): see also Steven
K. Berenson, Is It Time for Lawyer Profiles?. 70 Fordham L Rev. 645 (20101)
(discussing difficulties in identifying an appropriate legal services provider); Leslie C.
Levin, Preliminary Reflections on the Professional Development of Solo and Small
Firm Practitioners, 70 Fordham L. Rev. 847, 854, 848 (
) (arguing that "solo and
small firm lawyers often are the lawyer for the middle class" and stating that -the
percentage of lawyers practicing in these settings has decreased over the last forty
years"); Judith L. Maute, Pre-Paid and Group Legal Services: Thirty Years After the
Storm, 70 Fordham L. Rev. 915, 916 (
) ("For over thirty years. the organized bar
has studied, squabbled and lamented over how to address the unmet legal needs of
the middle class."). Susan Carle is not entirely convinced that middle-classi persons do
entirely on two studies commissioned by the American Bar
Foundation and published in 1974 and 1989,20 the authors in this
symposium issue have had access to a recent spate of additional
empirical studies of the unmet needs of the middle-class, including
more so-called "legal needs" surveys conducted by the American Bar
Association ("ABA"), by a number of states, 2 and by Martindale
Hubbell, the publisher of a well-known and widely used directory of
American lawyers.' Acknowledging that these "legal needs" studies
have been subject to criticism, 4 the authors nevertheless agree that
the current legal services delivery system does not meet the needs of
lower- and moderate-income persons.' These conclusions, and other
observations concerning the legal services market, 26 are buttressed by
extensive references to statistical reports-" and other recent studies of
the demographics of the profession.2a
According to the authors, the primary barriers to effective
participation in the legal system by the middle class are affordability
and lack of information. For example, George Harris and Derek
Foran, in their article entitled The Ethics of Middle-Class Access to
Legal Services and What We Can Learn From the Medical Profession's
Shift to a Corporate Paradigm,see a legal services market increasingly
dominated by corporate legal services, in which business interests and
wealthy individuals command an ever greater share of the market,
thereby driving up the cost of legal services.- Coupled with what they
characterize as the "anticompetitive regulatory structure " " of the
legal profession, this rise in cost has effectively priced the middle class
out of much of the legal services market3
Middle-class persons often find the legal services market not only
unaffordable, but also inaccessible 2 Steven Berenson, in his article
entitled Is It Time for Lawyer Profiles?. addresses the lack of reliable
information consumers have about lawyers, concluding that the
problem is worse in the legal services market than it is in the medical
services market. 33 This is because most Americans rely primarily on
word of mouth. But whereas most Americans are in regular contact
with at least one physician (from whom they can obtain referrals for
specialty care), "most persons are not in regular contact with an
attorney who plays a role analogous to that of the primary care
physician."'3' 5 Neither attorney directories nor advertising provide
much information about legal service providers, and lawyer referral
27. See, e.g., Carle. supra note 19. at 722 & n.8 (citing Clara N. Carson. The
Lawyer Statistical Report: The U.S. Legal Profession in 1995 (2000): Levin. supra
note 19, at 848 & n.4.
28. See, e.g., Carle. supra note 19,at 722 & n.10 (citing Richard L. Abel. American
): Robert L. Nelson. The Futures of American Lawyers: A
DemographicProfile of a ChangingProfession in a ChangingSociety. 44 Case W. Res.
L. Rev. 345 (1994)): Levin, supra note 19. at 847 n.2. Levin provides an extensive
discussion of demographic information regarding solo and small firm law yers. See
Levin, supranote 19. at 847-51 & nn.2-18.
29. Harris & Foran. supranote 19. at 795-98.
30. Id. at 835.
31. Id. at 796 ("Ordinary consumers face an additional obstacle to securing a
lawyer's services: a bidding process against the businesses and high-wealth individuals
that command more and more attention from the legal services industry-a bidding
process they cannot possibly hope to win."): see also Carle. supra note 19, at 726
("Part of the problem. of course. [that a majority of Americans receive inadequate
legal representation] lies in the stark fact of vast differentials in financial resources-it
is always easier to buy high quality professional services if one can pay huge amounts
32. See Harris & Foran. supra note 19, at 802-07.
33. Berenson. supranote 19. at 648-56.
34. Id. at 648 (according to Martindale Hubbell study, most common source of
lawyer referrals is "views of family members and friends").
35. Id. at 650.
services typically do little, if any, screening of their participating
According to Susan Carle, in her article entitled Re-Valuing
Lawyering for Middle-Income Clients, yet another obstacle to the
delivery of quality legal services to the middle class is "a dominant
hierarchy that defines lawyering for corporate clients as the highest
prestige career and lawyering for individuals as a low prestige track."-7
This view is confirmed by the widespread acceptance of the
conclusions of an earlier study by Jerome Carlin," which according to
Leslie Levin, portrayed solo and small firm lawyers "as a marginal
group of lawyers with less sophisticated practices and lower ethical
standards than lawyers who worked in larger firms. ' 39 Levin, in her
article entitled Preliminary Reflections on the Professional
Development of Solo and Small Law Firm Practitioners,discusses
negative assumptions about solo and small firm lawyers arising from
not only the Carlin study, but also ABA reports suggesting that these
lawyers, who are the primary source of legal services for the middle
class, "are isolated, receive little mentoring and rely on independent
study to learn practice skills."4
B. Some Good News
According to the articles that address these various obstacles, the
news is not all bad. Indeed, many of the authors conclude that
progress has been made on a number of different fronts. For
example, on the question of the quality of legal services offered by
solo and small firm lawyers, Levin's article provides a reassessment of
the traditional negative assumptions about these lawyers. Relying on
several studies more recent than Carlin's,4 as well as her own study
based on interviews with forty-one lawyers,42 Levin paints a far more
positive picture of these lawyers. Unlike the lawyers in Carlin's study,
less than half of the lawyers in Levin's study attended local law
schools: Indeed, over twenty-percent graduated from "elite"
schools.4 3 Less than half began as employees of solo or small firm
36. Id. at 653-55.
37. Carle, supranote 19, at 726.
38. Levin, supra note 19, at 848 n.5 (citing Jerome E. Carlin, Lawyers on Their
39. Id. at 850.
40. Id. at 852 (footnotes omitted).
41. Id. at 848 n.5 (citing a number of studies following Carlin's 1962 study,
particularly those of Carroll Seron and Jerry Van Hoy, which focused directly on the
work of solo and small firm practitioners).
42. Id. at 856-59. According to Levin, "[tihe study is small and the conclusions are
necessarily quite tentative." Id. at 855. In addition, she concedes that "[tihis is not a
rigorously scientific study and there may have been some hidden biases within the
group of lawyers that agreed to be interviewed." Id. at 858. For additional limitations
regarding the validity of the author's study, see id. at 858 n.49.
43. Id. at 859.
practitioners; as a result, many of them received mentoring and
assistance in skills development at an earlier stage in their careers.
Moreover, office settings and training opportunities available to solo
and small firm lawyers are not the same as they were at the time of
Carlin's study because technology has "fundamentally changed the
economics and efficiencies of solo and small firm practices, enabling
lawyers in these settings to compete with larger firms."4 Levin
concludes that the typical solo or small firm lawyer "is not the
undereducated and disillusioned lawyer who Carlin described forty
years ago, but rather someone who often has chosen that form of
practice and is generally satisfied with it."147
Technology has also had a more direct, beneficial impact on
middleclass consumers. As noted by Berenson, it has made available
tremendous amounts of legal information that has made it easier for
these consumers to represent themselves." Self-representation may
also be furthered by the availability on the Internet of interactive
forms, pleadings, and other legal documents,49 although these services
also raise questions concerning the unauthorized practice of law. -" In
her article entitled Providing Legal Services for the Middle Class in
Cyberspace: The Promise and Challenge of On-Line Dispute
Resolution, Louise Teitz addresses the need to implement appropriate
controls and standards but fully acknowledges the extent to which the
provision of legal services on-line, including dispute resolution
services, "has helped open the market to the ordinary middle-class
Of course, the availability of alternative dispute resolution
("ADR"), whether in cyberspace or in more traditional forms, is itself
a positive development in reducing the cost of legal services for the
middle class."2 In particular, according to Judith McMorrow, the
44. Id. at 860.
45. Id. at 878.
46. Id. at 853.
47. Id. at 896. Levin does sound a cautionary note concerning the possible
adverse effect of technology on the professional development of solo and small firm
lawyers. Id. at 875. While acknowledging that technology can greatly expand their
"advice networks," id., she is fearful that simultaneously "it may reduce the instances
of more highly textured oral advice-giving." Id.
48. Berenson, supranote 19,at 674 n.74.
50. See generally Catherine J. Lanctot, AttorneY-Client Relationships in
Cyberspace: The Peril and the Promise, 49 Duke LI. 147 (1999): see also Louise E.
Teitz, Providing Legal Services for the Middle Class in Cyberspace: The Promiseand
Challenge of On-Line Dispute Resoltion, 70 Fordham L. Rev. 985. 987-88 (
("Legal ethics regulators and experts have struggled in the last several years to define
what is the 'practice of law.' when engaged in cyberspace.").
51. Teitz, supranote 50, at 987.
52. The rapid rise in the use of ADR processes has been extraordinary. As late as
1994, Cramton discussed ADR primarily in future terms, as one of a series of -reform
proposals [that] seek to reduce the cost of legal services and court proceedings by
arbitration of employment disputes represents a "signilicant
institutional mechanism for accessing justice for a large number of
middle-class individuals."53 In her article entitled The Advocate as
Witness: Understanding Context, Culture and Client, McMorrow
concludes that "[l]abor arbitration and labor representation is one of
the few areas where middle-income clients obtain meaningful access
to representation on a subject critically important to their daily
lives."54 Similarly, the recent growth of mediation is a phenomenon
that has mostly benefited the middle class. Robert Burns, in his
article entitled Some Ethical Issues Surrounding Mediation, notes ,,iat
while mediation has been embraced by corporations as well as
individuals, "in the majority of mediations, at least one of the
participants, if not both, is a person of modest means."55
Perhaps the most significant development in recent years has been
the growth in group-based delivery of legal services. Judith Maute, in
her article entitled Pre-Paidand Group Legal Services: 30 Years After
the Storm, describes the progress that has been made not only in the
rising number of Americans who have some coverage through a legal
services plan,56 but also in the acceptance of such plans, including
closed-panel plans, by the organized bar. According to Maute, after a
long, "tortured history," the "ABA has embraced the concept,
actively supporting the development of an industry and trade group
committed to economical, quality delivery of legal services to
middleincome persons through pre-paid group plans. '57 Moreover, having
reviewed several such plans, Maute concludes that, so far, the
forprofit providers have successfully blended professionalism with a
managerial and entrepreneurial spirit," adopting a "striking emphasis
on preventive lawyering,"59 along with high priorities on quality
control and customer satisfaction.'
handing [sic] them more efficiently." Cramton, supra note 1, at 563 (emphasis added).
For a general discussion of the history and future of ADR proceedings, see
Developments in the Law: The Pathsof Civil Litigation, 113 Harv. L. Rev. 1752, 185 1
75 (2000), Frank E. A. Sander, The FutureofADR, 2000 J. Disp. Resol. 3 (2000).
53. Judith A. McMorrow, The Advocate as Witness: Understanding Context,
Cultureand Client, 70 Fordham L. Rev. 945, 973 (
54. Id. at 981.
55. Robert P. Burns, Some Ethical Issues SurroundingMediation. 70 Fordham L.
Rev. 691. 691 (
56. Maute, supra note 19. According to Maute, "it appears that twenty-five
percent to forty percent of Americans have some coverage through a legal services
plan." Id. at 916.
57. Id. at 916.
58. Id. at 937.
59. Id. at 939.
60. Id. at 940.
C. Remaining Obstacles and ProposedSolutions
Despite this acknowledged progress, significant barriers continue to
impede the access of the middle class to the legal services market. As
noted earlier, these barriers include affordability and lack of
information, as well as a prestige hierarchy that accords low prestige
to those who provide legal services to individual, middle-income
persons.61 Most of the authors in this first group of articles devote the
bulk of their papers to discussing a variety of means of eliminating
Carle acknowledges that it is unrealistic to expect the dominant
mentality to change its view that lawyers serving corporate clients
represent the highest prestige career path 2 but also notes the
existence of an "alternative prestige hierarchy" that gives
considerable honor to those who do "public interest" lawyering for
the poor.63 She urges legal ethics teachers and theorists to help extend
this "alternative prestige hierarchy" to include lawyering for the
middle class, that is to include those who help "real people with real
problems and making a real difference in their lives."' She surveys
various attempts to define public interest lawyering, including one
that recognizes "'previously unrepresented groups and interests"'
consisting not only of the poor, but also "'environmentalists,
consumers, racial and ethnic minorities, and others. '""5 Even then
there appears to be some resistance to include among public interest
lawyers those who receive modest fees for representing
middleincome clients.66 Carle explains the historical basis for this
resistance,67 ultimately hoping to encourage students to "conceive of
their career options as falling on a spectrum, along which the moral
honor in representing a particular client base will tend to be inversely
related to the social, political, and economic power of those clients." '
Berenson focuses on a prospective client's lack of information
about lawyers and looks to a "recent wave of state physician profile
legislation"69 to see if an analogous development in the legal
61. See supratext accompanying notes 29-40.
62. See, e.g., Carle,supra note 19, at 743.
63. Id. at 729-32.
64. Id. at 745.
65. Id. at 730 (quoting Council for Public Interest Law. Balancing the Scales of
Justice: Financing Public Interest Law in America (1976)).
66. Id. at 731.
67. Id. at 732-40.
68. Id. at 742. Levin's article suggests that it might not be necessary to use public
interest rhetoric to encourage more lawyers to take jobs representing middle-class
clients, given that the lawyers in solo and small firm practices who represent primarily
middle-class clients are generally more satisfied with their work lives than big firm
lawyers. Levin. supra note 19, at 896. Indeed, most of them appear to have
deliberately chosen this practice setting, often after a period of serving with a large- or
medium-sized law firm. Id. at 860.
69. Berenson, supra note 19, at 647.
profession is likely. According to Berenson, twenty-four states have
enacted legislation providing for some form of publicly accessible
physician profiles,7" including mandatory reporting of such
information as licenses and certifications, malpractice suits,
disciplinary actions, and criminal convictions. 7' This legislation was
prompted by "the development of informed consent doctrine, the
'crises' in medical malpractice and peer review, and creation of the
National Practitioner Data Bank. 72 Berenson concludes that the
underlying conditions in the legal profession are sufficiently different
from conditions in the medical profession that it is unlikely that
publicly accessible lawyer profiles will be required in the near future.73
Nevertheless, he believes that such profiles would be valuable to
prospective clients and discusses what information should be included
Berenson acknowledges that making information about physicians
and lawyers publicly accessible in order to assist prospective patients
and clients in choosing a professional service provider runs counter to
the traditional "'professional paradigm,' 75 whereby the delivery of
professional services is said to involve "the application of 'esoteric
knowledge, ' ' 76 thus rendering the recipients of professional services
without "the specialized knowledge necessary to evaluate the quality
of services they have received. 77 According to this paradigm, a
prospective patient or client is not in a position to understand or
evaluate the significance of such information as a malpractice award
rendered against a professional; therefore, providing such information
would only confuse the recipient." On the other hand, those who
advocate professional profile legislation are proponents of a
"consumer protection perspective" who "regard the purchase and sale
70. Id. at 657 & n.86.
71. Id. (discussing variety in information included in state physician profiles).
73. Id. at 671-79; see also id. at 678 ("[I]t does not appear that the time is ripe for a
movement toward lawyer profiles.").
74. Id. at 679-83. Berenson does not discuss differences in the regulatory context
of physicians and lawyers. Physicians are regulated primarily by federal and state
statutes, See Harris & Foran, supra note 19, at 813-14, whereas lawyers are regulated
primarily by courts, see generally Charles W. Wolfram, Modern Legal Ethics §§
22.214.171.124 (1986). Indeed, under the "negative inherent powers" doctrine, courts have the
exchsive power to regulate lawyers and thus can overturn state legislation as violative
of the separation of powers in state constitutions. Id. § 2.2.3. As a result, consumers
have less opportunity to influence regulators to impose a requirement that lawyers
furnish practice profiles.
75. Berenson, supra note 19, at 648 (citing Russell G. Pearce, The Professional
ParadigmShift: Why DiscardingProfessionalIdeology Will Improve the Conduct and
Reputationof the Bar, 70 N.Y.U. L. Rev. 1229 (1995)).
76. Id. at 648-49
77. Id. at 649
78. See, e.g., id. at 663-64 (discussing argument of opponents of physician profiles
that physician profiles will not help consumers in selecting a physician but rather will
have the opposite effect of confusing them).
of medical s79ervices in the same manner as any other consumer
This tension between "professionalism" and "consumerism" is a
theme that runs through many of the articles. Looking at
developments in this light helps some authors to explain how current
barriers to affordable and accessible legal services were erected and
why they must now be relaxed or perhaps even abolished. Several of
the authors explore this theme in the context of the recent debate
within the profession on the question of whether unauthorized
practice and form-of-practice restrictions ought to be relaxed in order
to permit multidisciplinary practices, better known as MDPs. For
example, Nathan Crystal, in his article entitled Core Vahles: False and
True, examines the ABA's stated reliance on certain "'core values' of
the profession in rejecting the recommendations of its own MDP
Commission, which would have relaxed current restrictions to permit
some form of MDPs8 Crystal concludes that "reliance on core values
of the legal profession in debates about legal ethics has rhetorical
appeal but is fundamentally misleading" in that it masks "an
antimarket, anticompetitive attitude of the bar that impedes change in
the rules of professional conduct, including efforts to improve the
delivery of legal services to people of moderate means.'"" This
conclusion is based on a detailed historical examination of four of the
so-called "core values"-undivided loyalty,' strict confidentiality,"1
duty to promote access to legal services and the exclusive authority
of courts to regulate the practice of lawl-and an explanation of how
these core values have not been treated as such throughout the history
of the profession. Crystal makes no specific recommendations for
reform but does clearly indicate his belief that market forces are
highly relevant to the current debate over ethics and that -[t]he
profession would be much better served by fostering realistic debates
that take into account a full range of values, including market values,
rather than by using the rhetoric of core values as a kind of veto over
change in rules of professional conduct."'s'
79. Id. at 663.
80. Nathan Crystal, Core Values: False and True, 70 Fordham L. Rev. 747, 748
81. Id. at 748.
82. Id. at 750-56.
83. Id. at 756-62.
84. Id. at 762-65.
85. Id. at 765-73.
86. Id. at 774. Crystal also indicates that he favors relaxing restrictions on
unauthorized practice. Id. at 764 ("The most direct way to improve delivery of legal
services to moderate-income individuals is by relaxing the restrictions on the
unauthorized practice of law."). He also indicates, at least indirectly, that he favors
reducing bar control of unauthorized practice restrictions. hL at 765 (quoting
Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1785. 1785 & n.1 (2011). for
conclusion that "meaningful progress in removing restrictions on the unauthorized
Harris and Foran join with Crystal in criticizing the anticompetitive
regulatory structure of the legal market. Focusing their attention on
Model Rule 5.4, which prohibits fee-sharing with nonlawyers and
combining with nonlawyers to practice law, 7 Harris and Foran call for
a "serious reexamination of the prohibition and its justifications.""8
After all, they ask, "What good are the profession's core values for
those who do not make it through the lawyer's office door?" 9
Like Crystal," Harris and Foran believe that the primary
motivation for adopting the prohibitions in Rule 5.4 and its
predecessor rules was economic protectionism, not protection of the
public interest.9 They go further than Crystal, however, in forcefully
advocating for deregulation of form-of-practice restrictions. For
example, with respect to the corporate practice of law, they ask, "But
why not Sears? If the traditional business structure of legal practice
has not met the legal service needs of most Americans, why not give
corporate America an opportunity to do so?"' And at least part of
what corporate America has to offer the public that the legal
profession does not is a level of capital contribution and planning that
might be necessary to make profitable the provision of legal services
to middle-class consumers. 93 Thus, Harris and Foran suggest that the
reason those lawyers serving middle-class clients have not yet taken
advantage of the potential of the Internet is precisely a lack of capital
contribution: "The technology is available, the need is established,
and the middle classes are on-line. What is missing are
properlycapitalized service providers willing to make the necessary
practice of law is likely to require reduction of bar control of the process").
87. Harris & Foran, supra note 19.
88. Id. at 836.
89. Id. at 807.
90. See Crystal, supra note 80, at 774 ("At a deeper level the appeal to core values
has been used in an effort to maintain professional independence from other
regulatory forces and to help sustain a professional monopoly over the delivery of
91. Harris & Foran, supra note 19, at 780; see also Maute, supra note 19. at 923
(referring to "[tJones of economic protectionism" in describing historical opposition
of large segment of bar to pre-paid and group legal services).
92. Harris & Foran, supra note 19, at 776. The use of "Sears" as an example of
corporate ownership of legal services refers to the rejection by the ABA House of
Delegates of a permissive version of Rule 5.4 after a floor debate in which Professor
Geoffrey Hazard, the reporter for the Kutak Commission, conceded that the draft
rule would permit Sears, Roebuck to open a law office. Id. at 784. Some
commentators now refer to the resistance to complete deregulation as the "'fear of
Sears' syndrome." Id. at 776 n.3 (citing Edward S. Adams & John H. Matheson, Law
Firms on the Big Board?: A Proposalfor Nonlawyer Investment in Law Firms,86 Cal.
L. Rev. 1, 10 (1998)).
93. See id. at 805 ("Optimal use of internet and computer software technology for
the benefit of middle-class legal consumers will likely require significant capital
investment and comprehensive planning.").
94. Id. at 806.
Teitz approaches the problem of on-line legal services from a
different point of view. According to her, the technology of the
Internet has made it a practical impossibility to enforce many of the
form-of-practice restrictions that currently exist. How, for example,
can one determine what constitutes "the practice of law" when it is
practiced in cyberspace, 95 which is itself "borderless"?" Which
jurisdiction's rules apply,97 and how can you actually enforce the rules
that do apply against persons (or entities) who can remain virtually
anonymous? 9 There is, in fact, little established law or enforcement
in the Internet arena in the majority of states.9 Using the provision of
on-line dispute resolution services as an illustration, Teitz suggests a
mode of regulation that would apply regardless of whether providing
the services is or is not the unauthorized practice of law."' Accepting
the consumer paradigm,' she argues in favor of consumer regulation
that would apply regardless of whether the particular service is
characterized as providing legal or non-legal services. Moreover, she
urges potential regulators to take a global perspective, given the
increasing use of on-line dispute resolution with international
Once we accept the proposition that on-line legal services are in
many respects simply another form of e-commerce for which
regulation need not be delegated wholly to professional
organizations0 3 or even courts (through their inherent power to
regulate the practice of law),"° a much wider range of possible
95. Teitz, supranote 50. at 987-88.
96. Id. at 990.
97. Id. at 988.
98. Cf. id at 1007 (referring to "the anonymous and borderless nature of
99. Id. at 1009.
100. See id. at 1010 (arguing that "since not all ODR [on-line dispute resolution] is
provided by lawyers and not all ODR is categorized as 'practice of law.' ODR is a
new frontier with pockets of overlapping and perhaps conflicting rules and large areas
of unexplored or uncontrolled services." and concluding that 'ODR like all of
ecommerce needs to have mechanisms to build consumer trust in the goods or
services" and that "[t]he regulation of legal services, including dispute resolution.
need not be delegated wholly to the professional organizations that incorporate a
degree of self-interest").
101. Id. at 1013 ("As the practice of law has moved more and more to the business
of providing legal services, the services have become products for consumers, as
clearly evident from the current web-based legal services available and even priced
like consumer products.").
102 Id. at 1011 ("It is a global problem that ideally would utilize global
103. Id. at 1010. As a formal matter, of course, bar associations do not directly
regulate the practice of law, but rather do so indirectly, through their influence on
courts, which do have the power to regulate both lawyers and the practice of law. See
infra text accompanying note 104.
104. See generally Wolfram. supra note 74. § 2.2 (discussing the inherent power of
courts to regulate lawyers).
solutions can be considered, including regulation by both
governmental and non-governmental entities. For example, Teitz
suggests licensing, as well as self-certification or certification through
private entities."°5 She is also willing to look to existing bodies like the
Federal Trade Commission, which would investigate deceptive
practices in connection with on-line services, including but not limited
to legal services." Local enforcement of state deceptive trade
practice statutes is also possible, °7 and might well be a more
productive means of regulating on-line legal services than relying
entirely on existing mechanisms at the state level for professional
discipline and for violations of unauthorized practice of law
restrictions. Without attempting to choose one particular form of
regulation over another, Teitz cogently argues for taking an entirely
different approach to the various means by which on-line services
should be regulated in the public interest.
D. Analogizing to the Provisionof Medical Services
Berenson is not the only author to look to the medical profession
for ideas for making legal services more accessible to the middle-class.
Both Maute and Harris and Foran believe that there are lessons to be
learned from how the medical profession has dealt with similar
tensions between consumer needs and professionalism concerns.
Maute closes her article on group pre-paid legal services plans with
some brief observations on developments in the health care industry,
and asks "[w]hat are the lessons of prepaid health care?"""' In her
view, which is shared by Harris and Foran,1°9 the rise of managed care
raises serious questions about intrusions on independent professional
judgment."0 In particular, she is concerned that "if the pendulum
swings too far in favor of closed panels, the [pre-paid legal services]
plan promoters might flex their economic power, exacting too much
from lawyer providers.""' Given that closed panels currently appear
to be working well, however, she is clearly in favor of regulating,
rsaerthviecresthtoanmpidrdolhei-bcliatisnsgc,otnhseu museerso."f 2closed panels in providing legal
Harris and Foran provide a more extensive examination of
developments in the medical profession, beginning with "[t]he
historical parallels between the efforts of the legal and medical
professions to ward off lay ownership of professional services
105. Teitz, supranote 50, at 1010.
106. Id. at 1013.
107. Id. at 1013-14.
108. Maute, supranote 19, at 943.
109. See Harris & Foran, supra note 19, at 817-21.
110. Maute, supranote 19, at 941.
111. Id. at 943.
providers [which] are... quite striking."" 3 Under pressure from both
the federal government and private employers as a result of the rising
costs of health care insurance, Congress passed the Health
Maintenance Organization Act, which ultimately resulted in the
elimination of both state prohibitions on corporate ownership and the
American Medical Association's ("AMA") ethical restrictions on
physicians participating in corporate practice." 4
Like Maute,"5 Harris and Foran concede that "the new corporate
owners have exerted pressure on the traditional physician-patient
relationship,"'1 6 creating conflicting loyalties and "'undermin[ing] the
physician's fundamental obligation to serve as patient advocate.""' 7
Moreover, while noting that the AMA has created new ethical rules
that extensively address a physician's professional obligation to
preserve independent judgment, they concede that ethical rules
cannot affect the corporate owners themselves."8 Nevertheless, they
argue that legitimate concerns over the loss of professional autonomy
can be addressed by a combination of these new ethical rules and the
prospect of liability on the part of the corporate owners."' They then
discuss in some detail how the liability rules operate in the medical
profession, including both vicarious and direct liability on the part of
managed care providers. 2
Harris and Foran conclude by urging a similar regime for the legal
profession, that is, one in which lawyer ethics rules affirm and protect
the value of preserving independent judgment without banning lawyer
practice in corporate formats.' 2' Like corporate medical providers,
corporate legal providers could and should be liable for malpractice,
under either the doctrine of respondeat superior or the theory of
"ostensible agency" that is often applied to corporate medical
providers.2' Finally, they argue that such a regime is in fact already in
place in the legal profession, citing the example of lawyers employed
by liability insurance companies to defend their insured against claims
by third persons.' Indeed, they note that just like managed care
113. Harris & Foran, supra note 20, at 811.
114. Id. at 813.
115. See Maute, supra note 19, at 942 (noting that "'Imedicall providers have
complained about managed care and unwarranted intrusions on their exercise of
independent professional judgment about appropriate care, specialist referrals and
116. Harris & Foran, supranote 19 at 817-18.
117. Id. at 818 (quoting Erica Worth Harris. Conquering Individualism and
Cynicism in America. 6 Va. J.Soc. Pol'y & L. 315.331 (1999)).
118. Id. at 821-25.
119. See id at 821-34.
120. Id at 828-34.
121. Id. at 834-46.
122. Id at 832-33.
123. Id. at 840-41. For a discussion of the ethical issues raised when insurance
companies use in-house counsel to defend their insureds. see Nancy J.Moore, The
Ethical Duties of InsuranceDefense Lawyers: Are Special Solutions Required? 4 Conn.
companies, the insurance industry has adopted cost containment
measures, and, just like the AMA, the organized bar has responded by
affirming the lawyer's ethical duty to resist such measures when they
unreasonably interfere with the lawyer's professional judgment on
behalf of the insured-client. 1
II. ETHICAL ISSUES IN SPECIFIC PRACTICE SETTINGS
Unlike the first group of articles, the second group examines
practice settings with a unique impact on middle-class clients to
determine whether new or more nuanced ethical rules are necessary
to meet the unique needs of these clients. These practice settings
include elder law, labor arbitration, and mediation.
In an article entitled Middle-Class Lawyering in the Age of
Alzheimer's: The Lawyer's Duties in Representinga Fiduciary,Patrick
Longan begins by noting the special vulnerability of middle-class
persons with Alzheimer's, a degenerative disease that slowly
diminishes the mental capacities of its victims."z "More Americans
are living longer,"' 26 and many of the middle-class Alzheimer victims
needing guardians or caretakers have accumulated large sums of
money over the course of their lifetimes. This accumulation makes
them highly susceptible to financial abuse by their caretakers, who are
often their adult children." 7
Model Rule 1.14128 purports to give guidance to lawyers who
represent clients with diminished mental capacity, 2 9 but as Longan
Ins. L.J. 259, 292-302 (1997) [hereinafter Moore, Ethical Duties]; see also Nancy J.
Moore, Conflicts of Interest for In-House Counsel: Issues Emerging From the
Expanding Role of the Attorney-Employee, 39 S. Tex. L. Rev. 497, 507-29 (1998)
(discussing involvement by in-house counsel in joint representation of a company and
its employee, each sued by a third party).
124. Harris & Foran, supranote 19, at 842-44; see also Moore, Ethical Duties,supra
note 123, at 285-92 (discussing ethical propriety of practice of insurance companies of
paying bundled flat fees to lawyers retained to represent their insureds).
125. Patrick Emery Longan, Middle-Class Lawyering in the Age of Alzheimner's:
The Lawyer's Duties in Representing a Fiduciary, 70 Fordham L. Rev. 901, 901-02
126. Id. at 901.
127. Id. at 902. Longan does not state explicitly that middle-class persons are even
more vulnerable than the elderly wealthy, but it makes sense to conclude that this is
the case. The elderly wealthy are more likely to have consulted lawyers over the
course of their lifetimes, often making advance arrangements for the disposition of
their wealth, including the creation of trusts and the appointment of institutional
128. Model Rule 1.14 reads as follows:
(a) When a client's ability to make adequately considered decisions
in connection with the representation is impaired, whether because
of minority, mental disability or for some other reason, the lawyer
shall, as far as reasonably possible, maintain a normal client-lawyer
relationship with the client.
(b) A lawyer may seek the appointment of a guardian or take other
protective action with respect to a client only when the lawyer
notes, its guidance is minimal at best.' "t Moreover, coupled with
sometimes confusing ABA interpretations, its advice is often
ambiguous, particularly when the lawyer represents a fiduciary whom
the lawyer knows to have defrauded the beneficiary."' Longan takes
us through a variety of scenarios involving elderly persons with
differing levels of diminished capacity and lawyers with differing
reasonably believes that the client cannot adequately act in the
client's own interest.
Model Rules of Profl Conduct R. 1.14 (
129. The Ethics 2000 Commission recommends that Rule 1.14 be substantially
amended. See R. 1.14 (Proposed Draft 2001), at
http'il/wvw.abanet.orgcpre2kreport-home.html. Among other changes. the Ethics 2000 Commission recommends
amending Rule 1.14's current caption from "Client Under a Disability" to "Clients
With Diminished Capacity"-and making similar changes throughout the text of. and
Comment to. the Rule-in order -to focus on and more accurately express the
continuum of a client's capacity." R. 1.14 (Reporter's Explanation of Changes 2001).
at http://www.abanet.orgicpr/e2k-rulel 14rem.html.
130. Longan is particularly concerned with the ability of a lawyer to disclose
information in order to prevent or rectify breaches of a fiduciary's duties. He notes
that lawyers are not permitted to breach confidentiality under Rule 1.6. the
confidentiality rule. "to prevent or rectify financial harm to the older
person.Longan, supra note 125. at 902. Yet. as Longan notes. Comment 4 to Rule 1.14
suggests that a lawyer representing a guardian acting adversely to a ward's interest
may be obliged to prevent or rectify such misconduct under Rule 1.2(d). which does
not contain any explicit duty to prevent or rectify a client's wrongful conduct. hi. The
Comment to Rule 1.2 provides that "[w]here the client is a fiduciary. the lawyer may
be charged with special obligations in dealings with a beneficiary." R. 1.2 cmt. 8. This
Comment undoubtedly refers to special obligations created not by the ethics rules
themselves, but by other law. See Restatement (Third) of the Law Governing
Lawyers § 51(4) (2000) (discussing the civil liability of a lawyer for failing to prevent
or rectify breach of fiduciary duty owed by the client to a non-client). Longan
acknowledges and supports the existence of civil liability in many of these cases. See
Longan, supra note 125. at 911.
The Ethics 2000 Commission recommends amending Rule 1.14 to clarify the
relationship between that Rule and Rule 1.6. by providing that when taking protective
action authorized under Rule 1.14, "the lawyer is impliedly authorized under Rule
1.6(a) to reveal information about the client, but only to the extent reasonably
necessary to protect the client's interests." R. 1.14(c) (Proposed Draft 2001), at
http://wwv.abanet.org/cpr/e2k-rulel14.html. In addition, the Ethics 2000 Commission
recommends amendments that would provide additional guidance regarding the types
of protective action a lawyer can take pursuant to the rule. See R. 1.14(b) (Proposed
Draft 2001), at http:/wvw.abanet.org/cpr/e2k-rulelI4.html: R. 1.14 (Reporter's
Explanation of Changes 2001). at http'J/www.abanet.orglcpr/e2k-rulel l4rem.html.
The Commission did not specifically address the ability of a lawyer representing a
fiduciary to take steps to protect the beneficiary. It proposed broadening Rule 1.6 to
permit the lawyer to disclose client information when necessary to prevent or rectify a
client's crime or fraud in which the lawyer's services had been used, but those
proposals were not adopted by the ABA House of Delegates. See generally Moore.
supra note 14.
131. Here Longan discusses Formal Opinion 94-380 of the ABA Standing
Committee on Ethics and Professional Responsibility. which concludes that "a
lawyer representing a fiduciary is bound strictly by all the Rules of Professional
Conduct, especially Rule 1.6's prohibitions on revealing confidential information."'
Longan, supra note 125. at 903 n.11 (quoting ABA Comm. on Ethics and Prof'I
Responsibility Formal Op. 94-380 (1994)). As Longan asks, "'How can a lawyer
prevent or rectify misconduct without telling someone about it?" hi.at 903.
Ultimately, he concludes that "[o]nly a rule of mandatory disclosure
of planned malfeasance, backed up by the threat of civil liability for
keeping quiet, will enable the legal profession to render an admittedly
difficult but necessary service to our aging population."' 33
McMorrow is interested in the "advocate-witness rule," ' which
generally prohibits a lawyer from representing a client in a proceeding
in which the lawyer is "likely to be a necessary witness."' 35 She is
concerned that application of the rule might "have a disproportionate
impact on lawyers and clients who have developed a long-standing
relationship, often the lawyer for a family, a small business or
union"-in other words, middle-income clients.3Y6 In order to better
understand how the rule functions in different settings, she examines
its application in federal and state court proceedings and in labor
McMorrow concludes that the rule does indeed operate differently
in different contexts, particularly with respect to the rule's exception
for situations in which "disqualification of the lawyer would work
substantial hardship on the client."'3 8 Federal and state courts tend to
emphasize institutional concerns, such as role differentiation and the
integrity of the trial process, 3 9 giving relatively little weight to the
burden of clients separated from their chosen counsel. 4" In
caretaker. 3 2
132. Id. at 909.
133. Id. at 913.
134. McMorrow, supranote 53.
135. Model Rule 3.7, the "advocate-witness rule," reads as follows:
(a) A lawyer shall not act as advocate at a trial in which the lawyer
is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
) the testimony relates to the nature and value of legal
services rendered in the case; or
(3) disqualification of the lawyer would work substantial
hardship on the client.
(b) A lawyer may act as advocate in a trial in which another lawyer
in the lawyer's firm is likely to be called as a witness unless
precluded from doing so by Rule 1.7 or Rule 1.9.
136. McMorrow, supra note 53, at 947. Although not mentioned by McMorrow.
another reason why the Rule might have a disproportionate impact on middle-class
clients is that such clients are more likely than others to be represented by a solo
practitioner. See supra text accompanying note 40. Wealthy individuals and
corporations are more likely to be represented by firms, and firms can avoid the
harshness of the advocate-witness rule by using another lawyer in the firm to litigate a
case in which the lawyer who had previously represented the client will testify. See R.
3.7(b) (no imputation of conflict to another lawyer in firm unless there is a conflict of
137. See McMorrow, supra note 53, at 948.
138. R. 3.7(a)(3).
139. McMorrow, supranote 53, at 963.
140. Id. at 968 (citing Bruce A. Green, Conflicts of Interest in Litigation: The
JudicialRole, 65 Fordham L. Rev. 71 (1996)).
determining whether attorney disqualification "would work
substantial hardship on the client." federal courts in particular do "not
consider the interpersonal relationship between lawyer and
clientthe trust built up due to a long relationship-as a distinctive value."''
Middle-class clients, however, are particularly dependent on "the
human dimension of trust" because, unlike "repeat actors with
significant economic clout," they do not have either access to a large
pool of lawyers or the ability to evaluate their qualifications.'
Labor arbitrators, on the other hand, have generally deferred to a
lawyer's judgment that a particular client will suffer "substantial
hardship" if the lawyer is disqualified under the advocate-witness
rule.143 McMorrow concludes that such deference exists primarily
because "[l]abor arbitration works to protect relationships in a more
thorough and systematic manner than court litigation."'' McMorrow
sees some value in the different approaches taken by courts and
arbitrators, 145 but perhaps her article will persuade courts to place
greater emphasis on the importance of ongoing relationships between
lawyers and their middle-class clients.
Like McMorrow, Burns notes the benefits of alternative dispute
resolution to middle-class clients.' His focus is on mediation,
however, as "the preferred method" of alternative dispute
resolution.1 47 He raises two ethical issues that have confronted
lawyers who negotiate on behalf of their clients-the duty of candor
and the allocation of decision-making authority between lawyer and
client-and asks whether the fact that the negotiation occurs during a
mediation changes the analysis.' " In addition, he distinguishes
between different types of mediation, including "facilitated share
bargaining"'49 and "transformative mediation."'""
With respect to both ethical issues, Burns concludes that the
"specific ethical issues that surround mediation as facilitated
arms141. Under the predecessor to the Model Rules. the ABA Code of Professional
Responsibility, the exception required a demonstration not only that there would be
substantial hardship but also that the substantial hardship be attributable to "the
distinctive value of the lawyer or his firm as counsel in the particular case." Model
Code of Prof'l Responsibility DR 5-101(B)(4) (1980); see also McNorrow. supra note
53, at 970. Massachusetts state court opinions may provide somewhat greater
protection for long-standing attorney-client relationships. hL at 970-71.
142. McMorrow, supra note 53. at 970.
143. Id. at 978.
144. Id. at 980. Other reasons may include the following: arbitrations may not be
"trials" within the meaning of Rule 3.7. labor arbitrations do not use juries (so that
role confusion is not as serious a problem). and non-lawyers may also represent a
party to an arbitration. See id. at 978-79.
145. Id. at 982-83.
146. See supranotes 52-55 and accompanying text.
147. Bums, supranote 55. at 691.
148. Id. at 692.
150. Id. at 708.
length negotiation are really no different than those that surround
such negotiation engaged in without a mediator's intervention." In
other words, the presence of a mediator does not increase the duty of
candor owed by the lawyer to either the mediator or the other party,
nor does it result in a different allocation of decision-making
authority. If, however, the mediation is viewed as "transformative
mediation," in which the goals are "mutual recognition and
empowerment,"' ' the standard analysis of ethical issues is woefully
deficient. This is because "such mediation is discontinuous with the
ways in which American lawyers generally conceive of their roles and
counsel their clients,"' 2 although it fits well with a style of lawyering
described by Thomas Schaffer as "'moral discourse.'""53
Burns is less concerned with the rules of professional conduct than
with styles of lawyering. He is clearly sympathetic to lawyers who are
"committed to the primacy of moral dialogue,"' 54 although he wisely
acknowledges that this style of lawyering is neither available nor
appropriate in all cases. 5 Although not directly concerned with the
content of ethical rules, his subtle analysis of the nuances of the
different types of mediation suggests an ongoing need to evaluate
rules that apply to both lawyer and nonlawyer mediators, in order to
ensure that such rules facilitate rather than undermine the benefits
that mediation confers on middle-class and other clients.1 6
I have recently begun teaching a seminar called "Lawyering in the
21st Century." The purpose of the seminar is to go beyond the basics
of the regular Professional Responsibility survey course in order to
focus on what I see as the cutting-edge issues confronting the legal
profession today. In this seminar, we cover such topics as
multidisciplinary practice, multijurisdictional practice, la\\yering on
the Internet, lawyers performing as third-party neutrals, and lawyers
representing clients with diminished capacity-in other words, many
of the same topics that are addressed in this symposium issue on
lawyering for the middle class.
What this means, for me, is that the issues addressed in this
symposium are among the most important confronting the legal
profession today. Increasingly, lawyers are being challenged to justify
our monopoly status and right to regulate ourselves, given our
apparent inability to make affordable legal services available to all.
Moreover, given changes in both the organization and structure of law
practice and the technologies available to both lawyers and clients,
there are emerging ethical issues that either have not been addressed
at all or need to be readdressed in light of these new developments.
The articles in this symposium do not purport to give definitive
answers to all of the questions asked. Nevertheless, it is hoped that
they sharpen our focus on the myriad of issues confronting not only
the individual lawyers who represent ordinary citizens, but also the
legal profession in its ongoing efforts to provide adequate legal
services to all.
Notes & Observations
Middle-Income Clients , 70 Fordham L. Rev . 719 , 724 ( 2001 ). 20 . Cramton, supra note 1, at 541-44 (citing Barbara A. Curran & Francis 0 .
Spalding , The Legal Needs of the Public ( 1974 ) ; Barbara A . Curran , Report on the
1989 Survey of the Public's Use of Legal Services , in ABA Consortium on Legal
Services for the Public, Two Nationwide Surveys: 1989 Pilot Assessment of the Poor
& Public Generally ( 1989 ) ). The studies cited by Cramton were done in collaboration
with the ABA . See Maute, supranote 19 , at 927 . 21. See Berenson, supra note 19 , at 651 n.43 (citing ABA Consortium on Legal
Major Findings from the Comprehensive Legal Needs Study 24 ( 1994 )); Carle, supra
note 19, at 723 & n.15; Harris & Foran, supra note 19, at 791 & n.91; Maute, supra
note 19, at 936 & n.136; see also Carle, supra note 19 , at 724 n. 17 ( citing ABA
Legal Needs Study ( 1996 )). 22 . See , e.g., Harris & Foran, supra note 19 , at 792- 94 & nn . 102 - 18 (citing surveys
supra note 19 , at 723 n.13 (citing surveys conducted by the state bars of New York
and Maryland) . 23 . See Berenson, supra note 19 , at 648 & nn. 26 - 29 (citing Yankelovich, Lawyers
in America: How We Choose Them , Use Them, and Sometimes Lose Them ( 2000 )). 24 . See Carle, supranote 19 , at 724 & n.20; Harris and Foran, supra note 19, at 790
& n.83 . Both Harris and Foran and Carle cite Rhode, who argues that [t]he legal needs studies are problematic on several levels. From an empirical perspective it is unclear precisely what is being measured. Any society generates a vast array of conflicts that could give rise to legal action. Whether they do is a function of the organization of the legal system and its broader cultural setting .
See Harris & Foran, supra note 19, at 790 n. 83 ( quoting Deborah L. Rhode , The
Rhetoric of ProfessionalReform , 45 Md. L. Rev. 274 , 281 ( 1986 )); Carle, supra note
19, at 724 n. 20 ( quoting Deborah L. Rhode , The Rhetoric of ProfessionalReform , 45
Md. L. Rev . 274 , 281 - 82 ( 1986 )). 25 . See supranote 19 and accompanying text. 26. For example, Berenson addresses the difficulties consumers have in finding
lawyers. See infra text accompanying notes 33-36 . Levin addresses questions
notes 39- 40 . Maute provides detailed observations on the current use of pre-paid and
group legal services. See infratext accompanying notes 56-60. 151. Id. 152. Id. at 707 . 153. Id . (quoting Thomas L. Shaffer & Robert F. Cochran , Jr., Lawyers , Clients,
and Moral Responsibility 126 ( 1994 )). 154 . Id. at 716 . 155. Id. at 716- 17 . 156 . The Ethics 2000 Commission struggled over whether and how to address the
them. Model Rules of Prof'l Conduct R. 2.4(b) (Proposed Draft 2001 ), at
http://vww.abanet. orglcpr/e2k-rule24.html; R. 2. 4(b) (Reporter's Explanation of
Changes 2001 ), at, http://www.abanet. orglcpr/e2k-rule24rem.htm . The Comment to
Rule 2.4 notes that [ljawyer-neutrals may also be subject to various codes of ethics, such as the Code of Ethics for Arbitration in Commercial Disputes prepared by a joint committee of the American Bar Association and the American Arbitration Association or the Model Standards of Conduct for Mediators jointly prepared by the American Bar Association, the American Arbitration Association and the Society of Professionals in Dispute Resolution .
R. 2 .4 cmt. 2 ( Proposed Draft 2001 ), at http://www.abanet.org/cpr/e2k-rule24. html .