by Richard L. Abel. New York: Oxford University Press, 2008. 584pp. Cloth. $75.00/£44.00. ISBN: 9780195374230.
Reviewed by Herbert M. Kritzer, through June 29, 2009, William Mitchell College of Law; effective June 30, 2009, Law School, University of Minnesota. Email: kritzer (at) umn.edu.
Richard Abel is one of the leading students of legal professions in the common law world. In his new book, LAWYERS IN THE DOCK, he takes on the issue of malfeasance by members of the profession. As Abel explains, his interest in this topic flowed in part from more than 30 years of teaching the required course on professional responsibility (p.497); he reports that he “wrote these case studies in the belief that only by understanding the social, structural, and psychological conditions of lawyer deviance can we take effective steps to rebuild the trust that is the essential foundation of our legal system” (p.491). The material at the core of the book comes from seven contested disciplinary proceedings from Manhattan. Because discipline had been imposed in these cases, the detailed records of the proceedings are public, and hence available to scholars as a basis for research and analysis. As I will discuss below, Abel’s reliance on these detailed records is both the strength and the weakness of the book.
The book consists of eight chapters: an introductory chapter framing the issue of attorney malfeasance in terms of the betrayal of trust, six chapters detailing his case studies, and a concluding chapter entitled, “Restoring Trust.” The six chapters of case studies deal with three types of malfeasance: client neglect, overreaching on fees, and excessive zeal in pursuing a client’s case. Abel specifically chose not to consider cases involving mishandling or misappropriating funds in clients’ trust accounts, cases involving solicitation of personal injury clients, disciplinary proceedings following criminal convictions, or relatively rare problems such as sexual harassment. The three areas of focus represent relatively common areas of complaint by clients (i.e., neglect and excessive fees), or an area of popular concern about legal processes (i.e., lawyers who pursue their clients’ cases with excessive zeal).
The introductory chapter is a wide-ranging discussion of trust and betrayal, first covering the need for trust generally in society, and then an extended consideration of betrayal and the lessons to be derived from betrayal. As Abel spells out, many actors can engage in acts of betrayal: parents (and parent surrogates), environmental polluters, manufacturers, service providers (professional and nonprofessional), and competitors in settings such as sports. A section entitled “the sociology of trust violation” discusses mechanisms of betrayal through confidence games, white collar crime, and “fiddling” (routinized cheating of employers or customers by acts such as small-scale overcharging or shorting). Abel reports [*387] that it was his working through of these literatures that “helped frame my inquiry into how and why lawyers betray trust,” and particularly how that literature shows that “[d]eviance’s very ordinariness is what allows it to persist” (p.52). It is this last point that suggests what may constitute the major weakness of the book: the cases that Abel goes on to detail are striking by their lack of ordinariness (or, alternatively, by Abel’s failure to provide any way of judging their ordinariness). In fact, Abel acknowledges that he makes “no claim that my cases are representative of the population of lawyer misconduct” (p.55). Abel does make mention of many cases beyond those he studied in detail (see pp.64-69), but these mentions are not dealt with in any kind of systematic fashion. It would have been helpful to the reader if Abel had provided a brief statistical profile of disciplinary proceedings in New York, in terms of both types of complaints and outcomes (including the nature of sanctions); this would have allowed the reader to place the cases Abel details into some context.
This is not to say that the cases Abel describes are unimportant or uninteresting. The six chapters of case studies are detailed accounts, at times perhaps more detailed than necessary, of how lawyers made mistakes and then proceeded to dig themselves in deeper and deeper either by repeating the mistakes or by failing to understand how they had erred (“all but one of the lawyers were convinced that they had done nothing wrong,” p.491). Three chapters describe lawyers who neglected their clients (one personal injury lawyer, one immigration lawyer, and one business lawyer); much of the neglect described in these chapters arose from the lawyers taking on more cases than they could handle. Two chapters describe lawyers who engaged in unethical billing practices. In both cases the lawyers failed to have clear, written retainer agreements with their clients, complicated in some situations by the absence of (or inconsistency in) records purporting to track the amount of time the lawyers devoted to the work at issue (when pressed for supporting time records, one lawyer managed to generate records such that his unpaid time and expenses exactly equaled the amount of a tax refund he had kept as payment). In one case the arrangement had been very informal because the lawyer and client were friends prior to the legal engagement. The third case, labeled by Abel as “excessive zeal,” involved a situation where the client (who was at the time also working as a paralegal for the lawyer) obtained access to some of the opposing party’s privileged documents, and then the lawyer failed to promptly and properly report the breach; the lawyer worsened the situation by attempting to use what he learned from the breach to leverage a settlement. The chapters consist largely of narrative, supplemented by relatively brief analytic conclusions, and in two cases “responses” by the lawyers to Abel’s narrative. In several of the cases, the lawyers were simply unable to grasp their errors, and responded by becoming increasingly self-righteous regarding their actions and increasingly convinced of the injustice of the disciplinary proceedings. Perhaps the most extreme case of self-denial was one of the billing cases (in which the lawyer had taken on the representation of a friend without a written retainer agreement); this was one of the examples where the chapter included a reply by the lawyer, and in [*388] that reply the lawyer repeatedly referred to Abel’s narrative as the “dishonest professors’ tale,” insisting that he had done nothing wrong and that it was the disciplinary system that was corrupt.
As noted previously, the central problem with the narratives forming the core of Abel’s “data” is that the reader is given no sense of how representative they are even of the case types that Abel chose to include (i.e., client neglect, billing practices, and excessive zeal). It seems likely that the cases represent extreme examples of these types of ethical violations. One would like to know what percentage of the cases that resulted in discipline had gone through the full disciplinary process, as opposed to the lawyer “admitting” the violation and consenting to discipline. What percentage led to suspension or disbarment? What percentage resulted in appeals? If I were teaching a professional responsibility course, Abel’s narratives would provide excellent examples of how an attorney can make a bad situation much worse. While this is an important lesson, I suspect that the majority, perhaps the vast majority, of disciplinary violations and proceedings are typically much more banal than the cases described by Abel, and a more important lesson for future (and current) lawyers is that most ethics violations do not take on the extreme form found in Abel’s examples.
In the concluding chapter Abel discusses how ethical breaches by lawyers could be reduced. In one sense, Abel’s six cases make a good vehicle for thinking about this because, as noted above, all but one of the lawyers whose cases he described did not believe that they had done anything wrong, and if we can reduce violations which are not recognized, then we should also reduce those that are recognized. One important point that Abel notes is that these lawyers did not get embroiled in disciplinary proceedings due to inexperience, which matches the general pattern that “lawyers typically become embroiled in disciplinary proceedings in the middle of their careers, not at the beginning” (p.496); one of Abel’s examples involved a lawyer well beyond the middle of his career. Abel’s analysis is that ethical failure comes from a combination of lapses in professional self-discipline, the institutional structure of practice, and the lack of institutional oversight. He draws comparison to concerns about medical error and institutional successes and failures to reduce iatrogenic injury and illness. He notes, for example, that lawyers working outside institutional settings (i.e., in solo practice rather than in firms) seem more likely to be caught up in ethical violations. The hospital provides a setting that both produces errors and seeks to reduce error through institutional structures. What Abel does not discuss is that the comparable institutions for lawyers would be the court or other institutional decision-maker; however, unlike the hospital which often bears financial responsibility for errors, the legal institutions have no such responsibility (and some may even be precluded from disciplining lawyers).
While not minimizing the issue of ethical violations by lawyers working in firm settings, Abel discusses reasons that ethical issues may be more likely to arise (or get to disciplinary authorities) with solo or very small firm lawyers: the marginal nature of some solo/small firm [*389] practices (lack of support staff, lack of backup from colleagues), clients of solo/small firm lawyers may have no recourse other than the disciplinary authorities (clients of larger firms can seek redress from firm management, and those firms are usually anxious to maintain client good will), and lack of internal monitoring by colleagues or management (in large firms, the firm may be at financial risk for malfeasance of its lawyers, and supervisory structures can identify potential problems and correct them in a way that is not possible in solo/small practices). Abel calls for some mechanism to allow potential clients to determine if a lawyer has had ethical issues in the past (similar to what is provided through the National Practitioner Data Bank for physicians; http://www.npdb-hipdb.hrsa.gov). Abel describes efforts of medical providers to reduce the incident of error; much of this involves standardizing procedures and enforcing the implementation of those procedures, even those as simple as hand washing. However, central to much of this effort is the finding that highly specialized medical providers who do a large number of a particular procedure, whether that is something as complex as heart bypass surgery or as routine as simple hernia repair, have lower error rates than do generalist or low volume providers. Abel discusses the need to allow more competition, a point with which I sympathize, although while such competition would probably reduce costs, it is not clear that it would reduce errors unless the clients of the personal services sector of the bar were to become much more sophisticated in how they choose and consume (i.e., monitor) legal services.
One point not discussed in the book is that all six of the lawyers upon which Abel focuses are male. Is this coincidence? It may be that women are less likely to run afoul of disciplinary authorities, either because of the types of practice settings in which they work or because of greater attention to ethical strictures. Alternatively, it may be the women do not appear among the lawyers discussed because women who do commit ethical violations are more willing to recognize that they have done something wrong and agree to discipline, rather than continuing to insist that their behavior is perfectly appropriate as did all but one of the lawyers in the book. This is a question that warrants future inquiry.
In summary, as he has done repeatedly in his books and other writings, Richard Abel has produced an interesting and provocative book. Anyone interested in the nature of lawyers’ work, and the problems lawyers can create for themselves in carrying out that work, will be interested in what Abel shows in his case studies and in his analysis of why the problems exist and what might be done to reduce ethical violations. At the same time, as Abel himself acknowledges, his selection of cases dictates caution in drawing generalizations about the day-to-day nature of ethical issues lawyers confront and deal with, or about the nature of everyday disciplinary proceedings.
© Copyright 2009 by the author, Herbert Kritzer.