A scholarly legal article that I came across a few years ago was the one written by American law professor W. Bradlet Wendel of the Washington and Lee University School of Law, entitled “Nonlegal Regulation of the Legal Profession: Social Norms in Professional Communities”.
Inter alia, the article discussed the concepts of social norms, honor and shame, civic republicanism, and community-based sanctions as “nonlegal modes of regulation of the legal profession”.
The article must be seriously read and studied by legal ethics experts and law educators, especially those engaged in the mandatory continuing legal education programs of the active members of the Bar, as part of the strategic efforts of the Bar, the Bench, the Government, and the Community to instill in the minds of legal practitioners the basic virtues of decency, honesty, hard work, diligence, and responsibility as selfless and dedicated legal advocates and officers of the court whose fundamental duty is to promote the rule of law and preserve the sanctity of the administration of justice.
The ideas expressed in the article might be relevant to other jurisdictions, for which reason I wish to digest hereinbelow the salient parts thereof, for legal research purposes of jurists and policymakers visiting this blog.
Prof. W. Bradley Wendel is an Assistant Professor at the Washington and Lee University School of Law. He finished his LL.M. in 1998 at the Columbia Law School, his J.D. in 1994 at the Duke Law School, and his B.A. in 1991 at the Rice University.
May I reproduce below the salient parts of his article:
1. What should be done about lawyers who persist in violating ethical norms that are not embodied in positive disciplinary rules? One response has been to propose, experiment, amend, tinker, draft, comment, and redraft, in an attempt to codify the standard of conduct observed to be flouted widely by the practicing bar. Bar associations and courts are seemingly engaged in a never-ending process of promulgating new codes of professional conduct or rules of procedure under which lawyers may be sanctioned for such conduct as bringing frivolous lawsuits, abusing the discovery process, sleeping with their clients, or engaging in discrimination based on race or sex. Critics fault the project of regulating lawyers through legalistic rules for being predominantly motivated by the organized bar’s protectionism or other self-interested reasons; for fostering a minimalist or “Holmesian bad man” interpretive stance toward moral questions; for slighting the importance of non-legal considerations, such as religious commitments, in professional morality; for overlooking the importance of dispositions, character, or other internalized aspects of ethical norms; or for failing to account for ethical pluralism, justified disagreement, or the complexity of moral life.
2. A fairly stable consensus now seems to exist in the legal ethics literature that rules of “ethics,” stated in the form of enforceable penal codes, have limited utility to remedy many of the observed problems with the professional conduct of lawyers.
3. One alternative approach, therefore, has been for lawyers or judges to produce an aspirational code of conduct—not the basis for judicially-enforced sanctions, but a statement of the highest ideals of the profession, toward which lawyers should aim. Unsurprisingly, commentators find fault in these proposals as well. Some ask whether virtue can be taught to lawyers or law students. Others pose a related question, namely, how exhortations to virtue can motivate lawyers in light of changing circumstances—for example, the much-observed (and frequently exaggerated) transformation of legal practice from a public-spirited profession to a business. These critics note the institutional forces that may militate against ethical behavior, such as intense competitive pressures created by decreasing client loyalty to a single law firm, inroads into the traditional domain of legal practice by accounting firms and other multidisciplinary practices, and the prevalent second-guessing by in-house legal personnel of decisions made by outside counsel; the willingness of clients to sue for malpractice, which causes lawyers to cover their proverbial behinds without regard to externalities; the bureaucratization of law practice, with teams of lawyers working under senior partners with a quasi-managerial role; the burgeoning docket of many state and federal courts, which reduces judicial oversight of lawyering behavior; and a “win-at-all-costs” mentality that causes supervising lawyers to look askance on subordinates’ ethical qualms. In the face of these powerful countervailing forces, an aspirational code of conduct, pitched in terms of virtue and the “highest ideals” of the legal profession, indeed seems to be a flimsy reed upon which to hang an argument for doing something against one’s self-interest. Finally, some commentators worry that judges might use professionalism or civility codes as a weapon against lawyers they dislike, on the pretext that the lawyers’ conduct is “unprofessional,” even though the codes are not intended to be a basis for sanctions.
4. One frequently encounters the claim that informal mechanisms of social control, exerted within the boundaries of a professional community, should be adequate to restrain obnoxious lawyers. One prominent legal ethicist has even urged that lawyers rediscover the nineteenth-century tradition of the gentleman as a polestar for understanding the obligations of their role. Others claim that reputational constraints ought to be sufficient, in many cases, to motivate lawyers not to violate important community norms. Once word gets out that Lawyer X is a jerk, the argument goes, opponents of Lawyer X will act to keep him in line, by refusing to extend routine courtesies and becoming uncooperative in scheduling and other administrative matters, and by practicing “by the book”—sending confirmation letters after every informal conversation, contesting minor procedural points, and otherwise being sticklers for detail where a lawyer with a better reputation might not be subjected to such pedantic quibbling. Eventually, this endless nit-picking will be costly to Lawyer X, either in terms of his professional self-esteem, or in purely economic terms. Clients may avoid Lawyer X, aware that the costs of a dispute or transaction involving that lawyer will be increased due to the lawyer’s obstreperousness in discovery, pretrial litigation, and negotiations. Judges, too, may look with suspicion upon Lawyer X’s arguments, and may be less willing to give credence to that lawyer’s interpretation of close questions of law or fact. Finally, the obnoxious lawyer may be denied access by his peers to referral networks and prestigious bar association positions which offer power, visibility, and professional development opportunities.
5. The concept of a community is pervasive in academic writing about the legal profession. A leading professional responsibility casebook observes that apart from the malpractice and professional discipline systems, preventing professional failures is largely the task of “internalized standards of professional conduct that are written in the hearts and minds of each lawyer and are reinforced by the monitoring and criticism of other lawyers.” Legal theorists, particularly those with an economic orientation, have endorsed the idea of controlling lawyers through informal community-based sanctions, which they refer to as reputational markets. Ronald Gilson and Robert Mnookin, for example, hypothesize that in some situations clients may prefer lawyers who are known to be cooperative, rather than unduly strategic or adversarial, in negotiation. Daniel Fischel, similarly, in the course of his controversial article proposing the abolition of the attorney-client privilege, observes that the economic function of lawyers is primarily to serve as reputational intermediaries for clients, thereby lowering transaction costs for honest parties. As a result, lawyers have an incentive to cultivate a reputation for honesty and trustworthiness, in order to maintain their value to clients as guarantors of good reputation. In a similar vein, legal ethicist William Simon argues that lawyers can attract clients by making their commitment to fair dealing credible to third parties; clients will come to value these “high commitment” lawyers as signals of their own trustworthiness, and a race to the bottom, where clients seek out the meanest, nastiest lawyer in town, can be avoided. Interestingly, the ABA’s Model Rules of Professional Conduct also contemplate some role for reputational markets in regulating lawyers, stating that in addition to taking guidance from the rules and interpretive commentary, “a lawyer is also guided by . . . the approbation of professional peers.” Finally, a few scholars of the legal profession have advanced an even stronger version of the reputational-markets argument, that informal sanctions are all that exist to restrain unethical behavior by lawyers, because of the difficulty that state disciplinary agencies have investigating and prosecuting claims.
6. The idea of using informal, community-based social control mechanisms to regulate the behavior of lawyers is related to another argument that has emerged in the legal ethics theory literature—namely, the claim that legal ethics is fundamentally a matter of professional judgment, not simply following the rules laid down. As David Luban and Michael Millemann argue, the essence of the lawyer’s work is exercising judgment on behalf of clients, and the essence of legal ethics is applying good moral judgment to one’s own professional activities. Anthony Kronman has, of course, also sought to restore the exercise of the Aristotelian virtue of practical wisdom to what he believes is its rightful place at the heart of legal education. Luban and Millemann recognize that the ideal of political fraternity and the commitment by lawyers to promoting the well-being of the public domain is an unlikely basis for a robust conception of professional ethics in the contemporary political climate. But they believe that it is nevertheless possible to teach a faculty of judgment, which consists of “identifying which [moral] principle is most important given the particularities of the situation.” This is not an anti-theoretical stance—it is always possible to critique one’s judgments with reference to higher-order principles—but a recognition that abstract principles are not self-applying.
7. Subsuming a particular case under universal principles, selecting one value among several competitors as the most important, and analogizing a present case to the past are all examples of exercising judgment. The paradigm of legal ethics as the exercise of judgment is related to the call for employing informal sanctions to regulate lawyers, because ethical judgments presuppose shared community standards. The community serves as a resource for making ethical decisions, by showing how ethical values are introduced in a process of explanation and justification for the actions of real people engaged in real life in all itscomplexity. Pure reason alone is insufficient to constrain judgment. Furthermore, without shared norms, ethical restraints on lawyers would be vulnerable to challenge as illegitimate, beingbased in something other than positive law or universal moral principles.
8. As a final illustration of the frequency with which concepts of community crop up in legal ethics discourse, consider the tendency of judges to appeal to the “lore” or unwritten normative standards of the legal profession, which are supposedly accessible to all lawyers. In the case of In re Snyder, the United States Supreme Court said that what would seem to be an undefined, practically meaningless phrase—“conduct unbecoming a member of the bar”—was not unconstitutionally vague if read in the context of the “lore of the profession.” Although at one point in the opinion the Court seemed to equate professional lore with the positive disciplinary codes promulgated by state bar associations, the Court also appeared to concede that the competing demands of zealously advocating one’s client’s cause and advancing the cause of justice must be resolved “in light of the traditional duties imposed on an attorney,” which are not neatly captured in the disciplinary codes. In another case, the Court conceded that tribunals are not constitutionally required to anchor a narrowing construction of standards for lawyer discipline to the state bar’s ethics rules:
9. Given the traditions of the legal profession and an attorney’s specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissibly vague in other contexts; an attorney in many instances may properly be punished for conduct which all responsible attorneys would recognize as improper for a member of the profession. In other words, the Court argued that by belonging to a community and sharing in the practices of similarly situated professionals, lawyers become acquainted with professional norms that are not reducible to concise disciplinary codes.
10. For example, retailers are frequently willing to make accommodations for their customers even though not required by law, because they fear reputational injuries resulting from customer complaints. In industries in which the participants deal with one another on a repeat basis, a complex series of norms can be generated, making little or no reference to state-sponsored legal norms, as Lisa Bernstein’s investigation of the diamond and grain industries has revealed. It is the task of a model of social norms to explain how these community-based enforcement practices work, in the absence of coercive state authority.
11. The honor/shame model draws from the extensive scholarly literature on how certain small-scale, relatively homogeneous societies have, outside the domain of law, regulated their members. Although much of the study of rituals of social control through dishonor and shaming draws from the history, anthropology, or literary studies of communities remote in temporal and geographic space, such as the Classical or modern Mediterranean, medieval Iceland, or the antebellum South in the United States, advocates of the honor/shame model claim that many modern practices of social control would be familiar to students of these other cultures. Appropriating a Wittgensteinian metaphor, a proponent of the honor/shame model might argue that informal practices of norm elaboration and enforcement in contemporary professional communities are a language-game whose grammar overlaps to a considerable extent the grammar of language-games understood by members of traditional honor societies. By delving into the rich comparative historical and anthropological literature on honor and shame, we can better understand how various subcommunities in our modern society influence behavior among their members and preserve and transmit moral lessons throughout the community.
12. The second conceptual framework that has been brought to bear in understanding how communities control behavior in the absence of explicit legal sanctions is rational choice theory. Some law and economics scholars have begun to apply rational choice concepts to informal community norms that influence actors’ behavior, even in domains that are otherwise subject to extensive legal regulation. The insight of this scholarship is that informal customs and norms can be as important as legal sanctions when an actor is running through a cost/benefit analysis. People reckon community-based sanctions as costs that must be taken into account, or appeal to informal norms as signals of their reliability as contracting partners. These informal social norms either replace, supplement, or stand in tension with formal legal norms. Metaphorically speaking, this means that “law”—at least law-like constraints on behavior—can be made from the bottom up, as well as from the top down. Social norms are decentralized, in the sense of being created by all (or at least a significant subset of) community members, rather than being imposed on the community by a legislator or judge. Individual members of a business or professional community check one another’s behavior through a variety of sanctioning devices: “social norms, commercial custom, a concern for relationships, trust, honor and decency, or fear of nonlegal sanctions such as reputational damage or termination of a beneficial relationship.”
13. Legal theorists in several disciplines—most prominently in constitutional law—and scholars working in related fields have sought to revive the civic republican tradition in American law. For some legal ethicists, republicanism is a welcome counterweight to the pernicious individualism and selfishness they perceive at the heart of the dominant conception of lawyering. (And it is certainly opposed to the conception of rationality as self-interested utility maximization proposed by rational choice theorists.) Rather than directing lawyers merely to seek to advance their clients’ ends through any arguably legal means, civic republican ethics charges lawyers with the duty to ascertain the common good and attempt to harmonize their clients’ projects with social justice. Lawyers in this vision of the professional role are not amoral instruments, mouthpieces, or hired guns—instead, they are quasi-public officials who justifiably may assert limited moral authority over clients. This authority is legitimate because it is exercised with reference to a knowable conception of public good and civic virtue, one which clients would rationally endorse. Lawyers, on this account, are independent both of the state and of their clients’ partisan interests; they serve as a repository of secular moral values, much as Durkheim had imagined.
14. Many communitarians tend to idealize small-scale, homogeneous associations, without mentioning some of the injustices that can be created by this form of regulation. It is true that some communities foster salutary values, and manage to control harmful behavior efficiently, but it is equally true that other communities have fostered the worst kind of injustices, such as exclusion, discrimination, and marginalization of disfavored subcommunities. To put it simply, there is no guarantee in the concept of a community that the community’s norms will be those that ethically ought to be endorsed. Unless informal social norms are kept in check by extra-community criticism, nothing prevents the community’s values from moving toward vice instead of virtue. In addition to the tendency of communities to relativize truth to power, to disable moral criticism of the community’s values, and to be applied in a discriminatory manner, informal social norms may also be criticized for their tendency to spawn multiple iterations of revenge-taking, which can spiral out of control into full-blown feuds. (In the domain of lawyering, this danger is familiar as the phenomenon of satellite litigation over sanctions motions.) Finally, there is the problem of applying social control schemes best fitted for employment in small, homogeneous groups to large-scale pluralistic groups like the community of practicing lawyers in a sizable city.
15. Because in the honor/shame model, social standing is established with reference to the norms and ideals of a community, one’s feeling of entitlement to respect and worth must be validated externally, by that community. Community approbation begins as a sentiment peculiar to an individual—a claim to honor—but this claim must be critically evaluated by others before honor can properly be said to belong to an individual. Honor in this model is an ascription, not a subjective personal quality, so it may be taken away by the actions of others, even though no actual change in the character of the dishonored person has occurred.
16. Each move and countermove in the language-game understood and spoken by members of an honor-governed society is directed not only at the challenger but at spectators—members of the community who will ultimately decide the issue of the relative status of the disputants. The community’s reaction to an event is the dispositive factor in determining whether the event is a wrong, justifying retaliation, or an occurrence of no account; accordingly, individuals in an honor-governed society are constantly attempting to divine public sentiment and influence the interpretation placed by the community on past events.
17. Although claims to honor must be confirmed by individuals other than the claimant, and shaming is a necessarily public act, it is important to recognize that the standards constructed by an honor society are not imposed coercively on properly socialized members of the community—these principles are internalized and become part of the set of value commitments of the individual. “In shame we fail against a standard or norms whose validity we accept.” Honorableness becomes part of the character of the agent, so that in acting, the agent acts because she is the kind of person who performs that kind of action, not because she is consciously worried about what other people will think.
18. In the internal self-regulatory practices of the legal profession, shaming rituals often take the form of “war stories,” gossip about lawyers who exhibit antisocial behavior and the subsequent retaliation by the lawyers who have been wronged. During my judicial clerkship, I spent each Friday at the Tanana Valley Bar Association lunch, an extraordinary gathering of characters from the Fairbanks, Alaska bar. The judge for whom I clerked had risen through the local bar to become a prominent Fairbanks lawyer, and eventually a federal appellate judge, and he wished to expose his protégées to what for him had been a valuable process of informal norm elaboration in a small-town bar. Perhaps none of us at the time thought of the bar lunch as a ritualized practice for transmitting ethical lessons (it was in some ways for us a chore, since the clerks were the inevitable butt of ribbing by the local lawyers), but that was exactly its function.
19. Sanctions recounted in these war stories included a refusal by an aggrieved lawyer to agree to a request for a continuance; in a later case against the same opponent, a motion with a quick turnaround time conveniently filed as the offending lawyer was about to take a vacation; exclusion from the referral network that tends to keep even relatively inexperienced lawyers busy with the cases rejected by others; withdrawal of customary courtesies not required by procedural rules, such as scheduling depositions by agreement rather than by serving subpoenas; and a rapidly disseminated reputation that the offending lawyer could not be trusted, leading other lawyers in town to be much more “by the book” in their relations with the offender, and therefore more expensive to deal with. Significantly, the conduct that would bring down such a penalty was exactly the sort of thing that proponents of ethical reform of the bar are constantly citing as examples of unethical practice: discovery abuse, such as obstreperousness in responding to interrogatories, refusal to cooperate in deposition scheduling, and abusive behavior toward witnesses and opposing counsel in depositions; refusal to agree to even reasonable requests for continuances; sandbagging by disclosing surprise witnesses or exhibits on the eve of trial; and most of all, going back on one’s promises. (These behaviors are often known by the moniker of “Rambo” tactics.) The informal penalties imposed by the community of lawyers, and recounted in endless stories told for the benefit of newcomers, were far more effective than any change in the rules of professional conduct, which depend for enforcement on overworked courts and disciplinary committees, and which may be skirted by careful lawyers.
20. An individual’s claim to honor must be validated by the community, and the sense of shame or dishonor felt by an individual must be confirmed by the reaction of others. Furthermore, there may be dissenters in any society, who refuse to adopt the prevailing social norms as their own. These dissenters cannot be said to have internalized the existing set of social norms, or if they have, they are able to violate the norms without creating undue cognitive dissonance. Dissenters can be shamed by the actions of their fellows, but they may not feel any psychological discomfort (which is frequently referred to as “guilt” to distinguish it from shame) as a result of their transgressions. Because internalization cannot account for external pressure applied by the community in the form of shaming practices, McAdams proposes unifying internalization accounts with those models that emphasize external sanctions. On his synthesized theory, norm internalization is only one of several norm-enforcement mechanisms that depend on the individual’s preference for esteem. A properly socialized individual (by the standards of the community) will be deterred from violating social norms by the prospect of feeling discomfort or guilt, while the community may be required to take more decisive action to impose shame sanctions on a dissenting member. These external sanctions still appeal to the individual’s desire for esteem. (Consider the sanction of gossip, or William Ian Miller’s example of pointed teasing that convinces a cheapskate to pay for his round of beers.149) They do not, however, depend on the individual’s internalized disposition to comply with the specific norm. Internalization still operates as a norm-reinforcing mechanism, but it does not carry all the weight of social control.
21. Signaling and signal-manipulation practices certainly exist in the domain of lawyering. One interesting example is found in a provision of the ABA’s Model Rules: “A lawyer’s representation of a client . . . does not constitute an endorsement of the client’s political, economic, social or moral views or activities.” This rule seems out of place in a disciplinary code—is there a case in which one could imagine a lawyer being punished for violating it?—but it does make sense in terms of Posner’s theory of signaling behavior. The rule clarifies the signals, so that a lawyer representing a loathsome client, such as John Demjanjuk (the allegedconcentration camp torturer “Ivan the Terrible”) or the Oklahoma City bombing suspects, is not taken to be adopting the client’s moral position. In an additional example, the famous “buried bodies” case, a criminal defense lawyer learned from his client that he had killed several young women and hidden their bodies in the wilderness. After the lawyer was criticized publicly for failing to inform the parents of the additional victims of the location of their daughters’ bodies, the lawyer acknowledged publicly that his client was “a bastard” and that he was acting under a professional obligation: “ ‘I caused them pain . . . What do you say? Nothing I could say would justify it in their minds. You couldn’t justify it to me.’ ” The ideology of professional detachment therefore enabled this lawyer to show human sympathy for the parents, while insisting that his actions were justified. This manipulation of signaling practices is useful in these cases, because it permits talented lawyers, whose reputations are valuable, to work on behalf of clients who could benefit from quality representation. At the same time, however, it makes opportunistic behavior or sophistry in ethical reasoning possible; talented lawyers may work for clients
22. One problem with this signaling mechanism, in which the parties to a social arrangement have relatively little control over the terms of their own relationships as compared with the community, is that communities have historically retaliated against relationships that they perceived as undesirable, even if their judgments were founded only on superstition or prejudice. The most obvious example is the stigma attached to interracial marriages in the South in the United States, which was even enshrined in antimiscegenation statutes in many states, but Posner suggests that the opposition to same-sex marriages is also grounded in community understandings of the limits of “proper” relationships. The importance of clear signals means that unorthodox members of the community are likely to get their signals crossed, as it were. Being married no longer signals that one is a conventional (i.e., heterosexual), trustworthy, self-disciplined person if marriage is opened up to same-sex couples, Posner hypothesizes. The necessity of agreeing on the social meaning of particular activities makes it difficult to engage in unorthodox activities without calling down the associated social stigma upon oneself, or without diminishing the social approbation that would otherwise be owed to people who participate in the activity. Signaling also tends to reinforce pathologies, such as racial discrimination, if members of in-power groups find it necessary tosignal their loyalty by antagonizing members of out-of-power subcommunities. As long as people have a preference for fitting in, they will tend not to send signals that would make them acceptable to outsiders, but not to insiders.
23. At first glance, the reinvigoration of the civic republican tradition seems to offer new hope to the project of regulating professional communities in the face of the failure of legalistic disciplinary codes. The republican ideal envisions citizens connected to one another in a network of interlocking relationships, pursuing government in a spirit of search for the common good. Civic republicanism is a reaction to the liberal political tradition, which insists that the state must be neutral among competing conceptions of the good. Liberalism imagines politics as an arena for competition for individual advantage; one variety of liberalism, interest-group pluralism, describes rent-seeking behavior by organized groups or factions who compete for access to goods or power. Significantly, liberalism and pluralism regard preferences as exogenously given—in other words, government is directed not to interfere with the formation of preferences, but merely to distribute public goods on a market model, with legislation reflecting the influence exerted on the political process by individuals and groups. Preferences, liberals argue, arise independently of community attachments, chosen autonomously by the a social, unattached “liberal self.” This assumption, although it has been criticized as a caricature of liberalism, translates neatly into the theory of lawyering, where the conventional model of legal ethics assumes that the ends of the representation are determined by the client, and the lawyer is simply an instrument to enable the client to realize those ends within the constraints given by legal norms.172 Republicanism, by contrast, imagines preferences as developingonly dialogically, through a process of engagement and discussion among citizens.
24. A necessary precondition of republican political theory is the opportunity for free, uncoerced public debate about justice. Deliberation is not merely an avenue for representing existing preferences—instead, the participants in a deliberative political order must be prepared to revise existing preferences to bring them into line with a conception of the public good. Deliberation has both instrumental and intrinsic functions: it is required to secure a just distribution of entitlements, free from coercive imposition of desired outcomes by powerful factions, but “participatory citizenship is also a good in itself.” Republicanism challenges the liberal conception of preferences as exogenously given, because it imagines some of the goods of political action as reflexive—that is, as available only through active participation in self-government. Thus, a vibrant community is a good in itself. The ideal of the intrinsic goodness of deliberative political engagement is, of course, fundamentally Aristotelian. Aristotle held that humans were political animals at their core, and could realize their own potential only through public participation in the polis. Civic republicanism, in its revived form, is also indebted heavily to modern discourse ethics, particularly the writings of Jürgen Habermas. According to Habermas, the validity of ethical norms depends on a rationally motivated consensus among deliberating agents. By “rational” Habermas means not only“ uncoerced,” but also the stronger condition of “unmotivated by strategic considerations.” In other words, participants in communicative action must be aimed at reaching understanding, not merely acquiring power or realizing some other of theirsubjective ends, and they must not engage in deception, threats, or enticements of other participants. This condition is a presupposition of ethical reasoning; competition for selfish advantage in a literal or metaphorical marketplace cannot claim to be an activity having anything to do with ethics, as that term is properly understood. Habermas also adds the stringent condition that norms advanced in discourse must be defended without recourse to tradition, a principle he sees as central to modernity.180 This is an interesting counterpoint with the honor/shame model of community norms, an overlap with the rational choice model, and a critical argumentative move for civic republicans. For the neo-republican project tosucceed, it must appropriate the attractive features of the civic republican tradition without acquiring its unsavory historical baggage.181 In the critical section that follows, I will question whether modern civic republicans can avoid reinscribingexclusionary practices within their “revived” republicanism.
25. Republicanism in political theory demands the eradication of barriers to full and equal participation in the political process. Economic inequality, for example, skews the quality of public deliberation by permitting disparities in access to media of communication.182 The Supreme Court’s notorious Buckley v. Valeo183 decision, which equated the freedom of speech with the ability to donate money to political candidates, represents adramatically unrepublican position. Republicanism can be a radical political philosophy if it demands substantive egalitarianism, but in fact, most proponents of some form of republicanism stop short of calling for full economic equality.184 Instead, they seek only to establish formal conditions for public participation, such as the absence of coercion. These conditions echo Habermas’s “ideal speechsituation,” where the participants in normative discourse areunencumbered by morally arbitrary constraints, such as the inability to make their voices heard. Obviously the qualifier“morally arbitrary” needs unpacking, and generally in a society which accepts a fairly high disparity of material wealth among its citizens, economic inequalities are not likely to be deemed morally significant. There is a further affinity here among republican ideals, Habermas’s discourse ethics, and the feminist and critical race theory position on freedom of speech. One purpose of the First Amendment is to ensure the free flow of ideas and information necessary for democratic self-governance, but this function is undermined by an interpretation of the constitutional free speech guarantee that would permit “silencing” speech such as pornography and expressions of racial hatred. A theory of democratic deliberation or of freedom of speech that emphasizes the inclusion of all voices in discourse must grapple with the possibility that seemingly neutral conditions may influence the access ofcertain citizens to the channels of debate.
26. One objection to relying upon community-based sanctioning mechanisms in professional ethics is that many informal social-control systems seem to give rise to the worst features of adversarial strife that have been so damaging to the ability of the legal system to handle disputes fairly and efficiently. In traditional honor societies, offenses to reputation were settled by duels, blood feuds, or fights with fists or knives, so it seems fair to surmise prevalent style of reasoning: responsibility for the morality or justice of a claim is ultimately that of the client. The lawyer’s job begins and ends with advising the client of the likely legal consequences of his decisions and helping him achieve his aims within the limits of the applicable legal rules. More specifically, the lawyer-informants’ responses included: “You’re not hired to give moral advice.” . . . “There is morality, but it is not the domain of lawyers.” “Our system of justice is not established for the purpose of moral judgments, but to determine facts and to apply law to facts. . . .” “The client doesn’t want to have a moral dialogue with me . . . . You have to frame it in other ways, explain the trouble you can get into . . . .” Moralizing lawyers are not to be trusted: “Sanctimonious lawyers are the first to file Rule 11 motions, accuse you of being unethical.”
27. One problem with using informal community norms as a means of social control is that the imperative of retaliation inevitably produces lawlessness and extrajudicial score settling, which is precisely the sort of thing that the law seeks to keep in check. Scholars who have criticized the trend toward using shaming as an adjunct to existing criminal penalties, such asimprisonment and fines, argue that by imposing shame sanctions, the judicial system creates a dangerous condition of complicity between the state and the crowd, harnessing mob psychology in pursuit of peace and order. As Jeremy Waldron observes in his review of William Ian Miller’s work on the vestiges of honor in contemporary society, “[m]odern institutions—law, state, and economy—claim to have created a pacified society in which people are supposed to feel sufficiently secure not to have to take their honor into their own hands, so to speak.”215 Waldron agrees with Miller that an encounter with legal forms of action and remedies is an exceptional event in the daily life of the average person. As he has argued in other places, however, the existence of legal rights and norms structures social relationships by giving private actors the assurance that their expectations will be honored by the state.216 This picture would be complicated considerably by an independent set of norms that sought to structure relationships differently, as was the case in the antebellum South in the United States. The historian Bertram Wyatt-Brown shows how legal authorities understood their sphere of influence as being circumscribed by the obligations of individuals to look after their own social standing. “The courts and lawmakers never put honor into statutory or judicial form because it was commonly understood that there should be a division between the workings of the law and the stalwart defense of a man’s sense of self.” Similarly, traditional Mediterranean notions of honor removed responsibility for protecting certain interests from the domain of the state: “When challenged to fight, it is not honorable to demand police protection.”
28. Community norms, therefore, are hostile to the state’s claim of authority, and can work at cross-purposes with officially sanctioned means of social control. As I argued previously, informal mechanisms of retaliation are quite effective in reining in improper behavior in a small, relatively homogeneous community. A reputation for being untrustworthy spreads quickly, as information costs are relatively low (and can be reduced even further by instituting an information-sharing practice like the weekly Tanana Valley Bar Association lunch). Moreover, there is relatively broad agreement on what constitutes improper behavior, and again this agreement can be reinforced by the constant process of dialogue and norm elaboration that is inherent in the lawyer’s penchant for telling war stories. Where these conditions do not obtain, however, the practices of retaliation can spin out of control, as each act of retribution spawns an act of counter-retribution, and soon the relationship has degenerated into total war. This process can be checked in a small community, where retaliation is understood as a sanction applied to improper behavior, and where it is possible to identify the party who is to blame for an escalation in nastiness. In larger associations, however, state authority is necessary to respond to some of the incentives for strategic behavior that are endemic in impersonal, market-oriented communities. For example, in a large urban bar, one lawyer may not have two cases against the same opponent or in front of the same judge in her entire career. There is little cause to worry about retaliation in a subsequent case when in all likelihood the offended lawyer will never again be one’s adversary. In a large community, information costs are much higher—it is difficult for one of fifty or sixty judges on a county trial court bench to learn of sleazy behavior in one ofher colleagues’ courtrooms, to say nothing of the impossibility of keeping tabs on each member of a large subcommunity like the personal injury or corporate transactional bar.
29. In the context of legal ethics, the obvious parallel with the Brady story is the reliance by the bar upon informal norms that serve as smokescreens for lawyer self-interest, to the detriment of outsiders. Critics have long decried the transparently self-serving nature of many of the organized bar’s disciplinary rules, and the same criticism can be leveled against unwritten norms, such as the profession’s “conspiracy of silence”—the unwillingness of many lawyers to testify against one another in malpractice suits. A few courts have also begun to condemn explicitly some informal standards of practice, such as the unarticulated expectations and understandings associated with the civil litigation process, as inconsistent with lawyers’ obligations as officers of the court. In a now-famous case, the Washington Supreme Court excoriated a large, prestigious law firm for its handling of discovery in a civil dispute, despite the fact that numerous bar leaders and academic ethics experts had testified that the firm’s actions did not deviate from the customs of the litigation community in Seattle (at least the subcommunity of large-firm litigators). “Conduct is to be measured against the spirit and purpose of the rules, not against the standard of practice of the local bar,” the court said. The Fisons case plainly shows—and it has come to stand for thisproposition in the legal ethics world—that the bar’s norm-elaboration process is subject to checking from the outside, and that courts retain authority to challenge the profession’s own understanding of its ethical obligations. It was a response to apractice that benefited lawyers alone, through the tremendousincrease in legal fees generated by “hardball” discovery practice, to the detriment of outsiders such as clients, courts, and consumers who bore litigation costs in the form of increased prices for goods and services.
30. The honor/shame model of community norm enforcement shows clearly how reliance on informal social norms can be fundamentally inegalitarian. The most common criticism leveled against the ethics of honor is derived, quite naturally, from the very term “gentleman.” Although honor is not necessarily a gendered concept, virtually every conception of honor that has been elaborated throughout history seems fundamentally to exclude women as people worthy of social prestige. In traditional honor societies, it is true that both men and women are subject to the claims of honor, and are potentially liable to lose honor and to be shamed. The ascription of honor differs between the sexes in what actions are expected of a man and a woman, and what is necessary to gain and lose honor. Generally honor for women is associated with chastity. Anthropologist Julian Pitt-Rivers shows how in Andalusian society losing sexual purity causes a woman, but not a man, to lose honor, while maintaining sexual purity causes men to risk having their masculinity, and therefore their honor, questioned.
31. When the concept of the exemplar of community virtues is loosened from its moorings in a society which structures all relationships around widely shared values, the risk of incoherence immediately arises. “It has often been remarked that to be a gentleman is to know how to behave without ever being told the rules.”314 If the ethical maxim, “be a gentleman,” is to provide guidance to people, however, there must be broad agreement on what constitutes gentlemanly behavior.315 In a pluralistic society, with multiple subcommunities structuring human lives (sometimes in ways that cut across one another), constructing an idealized figure who embodies the norms of the whole community is virtually impossible. The problem, of course, is made exponentially more complex when different communities seek to identify excellence with diverse, even contradictory ideals.316 Relying on communitynorms in a pluralistic society with diverse subcommunities involves several dangers. First, the ascription of “honor” or esteem in public discourse may become merely a makeweight—a post hoc explanation offered for a decision that was reached on the basis of independent reasons. Second, the threat of accusation of dishonorable conduct may become a sword of Damocles, hanging over the heads of marginal community members who must guess at their extreme peril whether the increasingly pluralistic,disputatious group of citizens from many different races, ethnic groups, and social classes will judge an act as a breach of thefoundational norms of the community.
32. As one might expect, practitioners from these diverse subcommunities disagree on what constitutes “sharp practice” or unethical behavior. For example, lower-status lawyers, such as the plaintiffs’ personal injury bar, express concern that corporate lawyers at large firms are able to “turn the process into a hypercivilized game of manners, at the expense of more substantive ideals such as truth, justice, and efficiency.” Comments like this one suggest that the “sharp practice” epithet is assigned to lower-status lawyers because the work done by these lawyers—representing individuals against powerful institutions like the government and large manufacturing enterprises—is threatening to the clients of the higher-status lawyers. Legal ethicist Monroe Freedman argues that the first codified rules of professional conduct were “motivated in major part by the large numbers of Catholic immigrants from Italy and Ireland and Jews from Eastern Europe . . . . [T]he established bar adopted educational requirements, standards of admission, and ‘canons of ethics’ designed to maintain a predominantly native-born, white, Anglo-Saxon, Protestant monopoly of the legal profession.” Thus, by manipulating the terms of discourse, the powerful subcommunity uses the term “gentleman” to legitimate its own practices, and to block recourse to substantive moral arguments that would reveal these tactics to be subversive of justice.
33. Community norms are most strongly felt in small-scale societies or subcommunities, where individuals interact personally and face-to-face, as opposed to anonymously, through bureaucracies or markets, and where interpersonal relationships are of paramount importance. “All else being equal . . . shaming penalties are likely to be more effective in Kenosha than they are in Manhattan.” The association of lawyers in a town the size of Fairbanks, the reading group described by William Ian Miller, and the circles of corporate managers studied by Robert Jackall are all small enough subcommunities to be aware of the claims to respect of their various members and the reactions of others to those claims. Corporate managers might care deeply about what members of their clubs and residents of their neighborhood think of them, even though they do not care about the reaction of others outside their social and professional circles.343 (Similarly, English barristers traditionally were regulated only by the Inns of Court, and by the unwritten codes of English gentlemen, while the significantly larger and culturally heterogeneous group of solicitors was subject to more extensive legal regulation.344) In economic terms, the marginal cost of acquiring information about other community members is low, because individuals interact with each other on a frequent basis. We would, by contrast, expect community-based norm enforcement to be a less efficacious means of social control in large, fragmented, pluralistic societies. For one thing, unless individuals are repeat players with respect to other individuals, they will have very little incentive to take into account the perceptions of others, which are necessary to maintain the scheme of honor and shame in the community.346 Moreover, if the domain of social norms does not extend beyond a subset of individuals in a society, if there are people even within that subcommunity who do not consider themselves bound by that group’s esteem, in effect a free rider problem results. “The person who does not subscribe to the norms of honor will not feel shame for having violated them even if real third parties try to make him or her feel so.”347 Short of hectoring such a person to join the community that is trying to shame him, what is to be done?
34. Furthermore, as the practice of law becomes increasingly national in scope, with the rise of multi-office mega-firms, not to mention technology like jet travel, fax machines, and the Internet, it is more important for lawyers in different jurisdictions to have similar professional skills, attributes, and duties. For the first time in the profession’s history, the 1969 Code of Professional Responsibility imposed unitary disciplinary standards for lawyers. The effect of the Code, and the subsequent Model Rules, has been to provide lawyers a measure of predictability in multijurisdictional transactions and litigation, with respect to issues such as conflicts of interest and confidentiality obligations. (Similar reasoning explains why accountants have generally adopted uniform standards for audits and financial reporting. It would do little good to require inspection of a company’s books by a certified public accountant if accountants in other states did not share the same criteria for pronouncing the company financially sound.) Reliance on informal social discipline, however, will undermine the move toward uniformity on a national scale.
35. No one proposes abolishing state-sponsored, legalistic oversight of the professions, but it is also futile to ignore the process of norm elaboration and enforcement that occurs within professional communities outside of state control. The salient question, therefore, is the optimal mix of formal and informal authority in a scheme of professional regulation. There are a number of practical lessons to be drawn from the study of social norms, which can usefully be applied to this normative issue.
36. First, state actors ought to be aware of the advantages and pathologies of professional communities and calibrate their intervention accordingly. In some cases, informal sanctioning regimes are less costly, better targeted, and more flexible than the formal alternatives. For example, open-file discovery systems, although not constitutionally required, can considerably reduce the expense of criminal trials; judges can put pressure on prosecutors to adopt open-file practices, even though they do not have the legal authority to compel this regime.365 Drafters of disciplinary rules struggle to demarcate boundaries between meritorious motions and those filed merely for purposes of harassment or delay,366 but experienced lawyers quickly perceive the difference, and may be able to control an aberrant lawyer more readily through informal means such as ostracism or retaliation. Indeed, as Tanina Rostain notes, informal social norms are sometimes so well entrenched that they will exert pressure against a legal rule that is significantly at odds with prevailing community practices.367 One might observe the relative infrequency of disciplinary complaints brought by lawyers, despite a legal duty to do so in some states,368 possibly due to asocial norm against ratting out a fellow professional. Alternatively, a community (e.g., personal injury litigators) may value a reputation as a “junkyard dog” advocate, and thus fail to take any action against a lawyer whose behavior is inefficient, in the sense of driving up dispute resolution costs, or otherwise ethicallytroubling.
37. Information costs are also likely to be lower when norm enforcers are “in the trenches,” so to speak, rather than dependent on reports of violations prepared after the fact and transmitted through multiple layers of government bureaucracy.370 Lawyers who are sensitive to community norms may effectively serve as peacemakers, by virtue of their ability to recognize the interests of all parties and broker some kind of mutually acceptablecompromise; sociologist Don Landon reports that small-town lawyers frequently play exactly such a role.371 The modern alternative dispute resolution movement emphasizes equitable values like discretion, flexibility, and contextual decision making, in contrast to rigid formalistic models of adjudication. The practices of community-based norm enforcement therefore support these goals. Furthermore, the peacemaking function of lawyers suggests that it may be well to decentralize power from remote, bureaucratized government agencies in favor of the people who are actuallyaffected, in order to maintain a sense of connection between citizens and public order.372 Finally, informal sanctions may be able to reach conduct that is beyond the reach of state-imposed regulation for constitutional or other reasons. The organized bar, for example, isprobably prohibited by the First Amendment from imposingviewpoint-based “character and fitness” requirements for admission; thus, an avowed racist or someone with similarly antisocial values must be let into the bar if he applies.373 Once in, however, there is no constitutional impediment to community-based sanctions, like ostracism and refusal to cooperate with the antisocial lawyer.
38. Informal sanctions also do not raise the same administrability concerns as formal legal rules; for instance, we need not fear clogging the dockets of already overworked disciplinary agencies with complaints about trivialities if community-based sanctions mechanisms do the job.
39. Conversely, formal regulatory mechanisms possess what might be termed rule-of-law virtues: they are relatively predictable, stable, and ostensibly free of invidious discrimination in the application of rules. (In some ways, the tradeoffs between formal and informal regulatory schemes are similar to those required in a legal system that seeks to accommodate both legal and equitable principles.) The content of legal rules may be ascertained in advance, and actors may plan their conduct to avoid legal sanctions. Legal rules administered by an impartial tribunal are also less likely to become the basis of escalating feuds as tit-for-tat retaliation spins out of control. Furthermore, changing social circumstances, technological innovations, or evolving standards of public morality often necessitate changes in professional regulatory practices. If the legal profession were governed only by informal social norms, not explicit rules, then the only possible mode of change in these regulations would be the gradual evolution of social norms, through the slow processes of growth and decay. Anyone who was concerned with the present state of the profession’s norms could do little to modify them, except perhaps launch a campaign of persuasion, aimed at the hearts and minds of her fellow professionals. Finally, formal rules promote uniformity of regulation of the legal profession.
40. Second, a frequently articulated objection to using informal mechanisms of social control to regulate the legal profession is that power ought not to be devolved to institutions that do not accomplish useful ends. Scholars who favor reliance on informal norms as a method for social control generally have in mind communities in which virtues are celebrated and vices suppressed—for example, Robert Ellickson’s cattle ranchers who are respected for their trustworthiness and neighborliness, or the lawyers in Fairbanks who warn pointedly against engaging in “Rambo”litigation tactics. Examples can be multiplied, however, of communities that exalt qualities contrary to moral norms. Theantebellum South is the most striking example, but the countrylawyers surveyed by Don Landon who valued neighborliness over their clients’ potential civil rights claims also reveal the capacity of honor to undercut reform efforts. It is little more than a fortunate coincidence that the Shasta County ranching society has cultivated virtues of honesty and cooperation—there is nothing internal to the concept of honor that guarantees this result. The corporations studied by Robert Jackall show that, if anything, communities tend to develop informal norms that are justified by little more than economic self-interest. The smaller and more exclusive the community, the more likely it appears to promulgate socially harmful norms. (The rancher society in Shasta County is small and geographically isolated, but it does include a sizable proportion of the local population.382) Unfortunately, the efficacy of community-based social control mechanisms decreases with the size of the relevant group, so as it becomes larger and more pluralistic, the community becomes less capable of supporting informal norm-enforcement practices.
41. On the other hand, there is no guarantee that self-interest will not also influence the development of formal regulatory regimes. From a sociological standpoint, ethics rules perform the function of bolstering the public image of the profession, which in turn permits the profession to continue to exercise self-regulation, relatively free of intrusion from legislatures and administrative agencies.383 Nonprofessionals are less likely to demand stringent regulation of an occupation if they feel that the members of that occupational group are doing a satisfactory job policing themselves. To some extent, the project as it relates to lawyers has been successful. The relative paucity of statutes and regulations applicable to the legal profession is striking in comparison with the comprehensive regulatory regimes under which other industries, like pharmaceutical manufacturers and public utilities, must operate. The suspicion that disciplinary codes are merely window-dressing is reinforced by the inadequate mechanisms in place for their enforcement, and the consistent underreporting of violations.385 Moreover, formal mechanisms of exercising state power are susceptible to capture by powerful, well-organized interest groups. In the case of lawyers’ communities, it has long been observed that the organized bar tends to be taken over by lawyers working for large, prestigious law firms, representing corporate clients. Enforcement practices accordingly tend to favor these interests. (Consider the energy that bar associations expend in regulating advertising by plaintiffs’ personal injury lawyers, and compare this with the acceptance by the bar of large-firm business development practices, like “schmoozing” potential clients at country clubs.) Thus, it is not possible to make an unqualified claim that formal legal regulatory mechanisms are more likely to serve socially beneficial ends, as compared with informal methods of social control.
