THE TROUBLE WITH LAWYERS

Vol. 26 No. 6 (October 2016) pp. 117-120

THE TROUBLE WITH LAWYERS, by Deborah L. Rhode. Oxford: Oxford University Press, 2015. 248pp. Cloth $29.95 ISBN: 978-0190217228.

Reviewed by Alyx Mark, Department of Political Science, North Central College; Visiting Scholar, American Bar Foundation. Email: admark@noctrl.edu.

In her latest book on the subject, Deborah L. Rhode provides those interested in the legal profession with a valuable synthesis of the many consequences of lawyers’ monopoly on the practice of law. Rhode demonstrates that there are far-reaching implications for those seeking legal remedy, prospective and current law students, innovation in the field, as well as for the institutions and individuals within the profession itself. On the whole, THE TROUBLE WITH LAWYERS delivers a well-researched set of criticisms about the profession. Although Rhode provides some brief comparisons between the American system and innovations abroad, the book is largely a vehicle for proposals for future research and practical reforms.

In Chapter 2, the first substantive chapter, Rhode introduces the reader to the causes and consequences of lawyer satisfaction (and dissatisfaction) with the profession. She proposes that changes in the practice of law since the 1960s, including the increasing size of firms and the competition between them, have led to increasing pressures on lawyers from firms and the broader legal environment. What results is a greater focus on billable hours, an easily quantifiable measure of productivity. Rhode suggests this cultural shift leads to work-life imbalance and professional dissatisfaction – with little incentive for any single lawyer to call for reform.

Rhode transitions to a discussion of lawyers’ evaluation of professional satisfaction, which provides the reader with an overview of all of the forthcoming chapters of the book. Lawyers are generally more dissatisfied with their positions when they are at large firms and do not engage in much pro bono work. Rhode also suggests that students from elite law schools may be more dissatisfied with their positions than those from lower ranked schools because there is a mismatch between what they learn from doctrinal professors and what “real life” looks like in a firm. This leads her to propose some avenues for future study, including better measurement and monitoring of the factors that contribute to lawyer satisfaction as well as scholarship that seeks to demystify the profession for law students.

In Chapter 3, Rhode begins to address her criticisms with the profession that arise from the factors contributing to lawyer dissatisfaction with the field. She first focuses on the justice gap, a perennial puzzle for access to justice scholars. Rhode asks, with a glut of lawyers and law students seeking employment and professional experience, why are so few people with legal problems able to seek remedy with the help of a professional? Because the American system is split in terms of the services offered for criminal defense and civil justice problems, Rhode addresses them separately, and offers proposals for additional research and reform.

She starts with a discussion of criminal defense. Even though our system of public defense is in theory a universal one, the funding for these services is limited and little remedy is available for those receiving incompetent assistance. Rhode does not think that the problem with public defense is the quality of the services, but that it is instead a structural one. This is not a surprising argument, as the lack of resources and meaningful remedies for incompetent counsel are widely reported as contributors to a dysfunctional system. Rhode is skeptical that suggested reforms (resources, remedies for incompetence) will be realized without public mobilization to spur them along. She does note that reform efforts could also arise from within the courts, and a recent example where [*118] the Director of Missouri’s system of public defense appointed Governor Jay Nixon to represent an indigent defendant suggests such internally motivated reform is possible (Barrett 2016). Another way to reduce the burden on public defenders would be to move low-level offenses to problem-solving style courts, and Rhode suggests additional study on the efficacy of such methods of resolution.

She continues with civil justice, noting the financial, institutional, doctrinal, and political barriers to a comprehensive system of access to legal services for those with civil justice problems. Because access to legal assistance is not constitutionally guaranteed for civil matters, both federal funding and in turn, accessibility of civil legal assistance, are incredibly limited. As a result, more people go to court without lawyers than with them, and their disadvantage is compounded by the fact that our court system was not designed to be easily navigated without legal assistance. Doctrinally, lawyers protect their profession by largely disallowing those without a license from providing legal help, and as a consequence exclude most nonlawyers from engaging in activities that might help unburden the law field. And, like in the criminal law example above, the public has a misunderstanding about the remedies available for civil justice problems, and does not successfully mobilize reform efforts.

Research on reforms and innovations in access to justice come to different conclusions regarding the value of legal services and representation, and we still know little about how to efficiently use limited resources to best reach legal remedies for those needing assistance (Shanahan, Carpenter, and Mark 2016; also see Sandefur 2015 for a comprehensive meta-analysis). Rhode implores scholars to dedicate more energy to the study of the array of innovations to legal services including unbundled and online services, and for firms to better harness pro bono opportunities to improve lawyer satisfaction and to help close the justice gap.

In Chapter 4, Rhode calls for a better explanation of gender, racial, and ethnic inequality within law firms and for greater attention to who should be addressing those shortcomings, and how. While women have increased in number in law firms since the 1960s, they still lag far behind on the elevation to partnerships – but report being just as satisfied with the practice of law as men. Among minorities, there is a lot of variance across different measures of career satisfaction, with little explanation of the causes. Rhode suggests that women and minorities often fall victim to stereotypes that undermine their performance in the field. While white males are assumed to be competent, women and minorities are required to demonstrate performance in order to attain acceptance in the field. Male counterparts also judge women more critically when they exhibit leadership skills that are positively assessed when used by men. Rhode cites examples of minorities being “shown off” to clients to demonstrate the diversity of a firm and not necessarily that the lawyer has skills compatible with the client’s needs. Rhode adds that this “outgrouping” of women and minorities also depresses their opportunity to receive high quality mentoring, as mentoring relationships may not be as successfully fostered across gender and racial lines.

Rhode notes that there are legal remedies available to those who believe their employers have discriminated against them, but that due to the subjectivity in evaluating such claims and the fears of negative professional consequences that result from filing a claim, far fewer of these problems are addressed than do occur. She suggests that firms should collect data in a systematic way regarding such claims, hinting that this might not be a widespread practice due to liability concerns. Rhode also argues that diversity provides benefits to firms – different perspectives within group decision-making processes decrease the likelihood of groupthink and increase the likelihood of innovation and creative thinking. However, there are few studies on the influence of diversity within firms, or how widely diversity policies are shared between them.

In Chapter 5, Rhode discusses the numerous problems that arise as a result of the legal [*119] profession’s self-regulation and monitoring practices. Because lawyers, as well as judges and legislators (who are often socialized by the profession and/or legal education) regulate the legal profession, regulations end up being favorable to the profession, often at the cost of innovation and finding efficient solutions for those with legal problems. A recently created ABA commission was tasked with proposing reforms to this system, but the profession largely dismissed any significant changes, Rhode posits, because it wished to maintain control of its authority.

This chapter addresses the evolving nature of legal problems, and Rhode argues that a state-level licensing scheme may not be sufficient to accommodate the increasing number of cross-border legal issues, and advocates for a specialization-focused method of licensing. Here, she discusses systems of regulation in Great Britain and Australia to make a claim for the successes of alternative approaches. Even within the state-by-state system in the United States, we still know little about what makes states more or less likely to allow even temporary practice by out of state, barred attorneys in their jurisdictions.

Not only do legal problems cross state lines, they often require multiple types of services to reach a resolution. For example, a family law problem may have not only legal dimensions, but may also require the assistance of a social worker. But, the profession is reluctant to commingle legal services with those of nonlawyers for fear of lowering professional standards. Rhode thinks that cross-disciplinary organization is useful for innovation, and suggests research explore the frequency of ethics problems across single-focus organizations and those that manage several professions.

Further, a system of regulation created and managed entirely by those within the profession creates an opaque system of sanctioning for those who violate ethics codes or even criminal statutes. Hearkening back to Chapter 3, Rhode concludes by suggesting that regulatory issues like the above are most likely to harm those who do not have repeated interaction with the legal system. The “one shot player” is least likely to mobilize for reform (or to be successful in the achievement of those reforms through the courts, see Galanter 1974), while the bar is always advocating for favorable regulatory schemes.

In Chapter 6, Rhode concludes THE TROUBLE WITH LAWYERS with a focus on legal education. Throughout the preceding chapters, she frequently mentions how integration of these topics into a legal education would help to mitigate some of the dissatisfaction lawyers feel in their professional lives and perhaps improve the profession as a whole. However, because they are governed largely by a desire to maintain accreditation and ascend the rankings, law schools are severely limited in their ability to innovate, provide a diversity of educational experiences, or respond to the legal needs of the public. Rhode offers grand reforms to a largely homogenous system, including enhanced clinical education programs – which would provide much needed practical experience for law students yet is not a requirement for many law schools – as well as more ethics and diversity training.

THE TROUBLE WITH LAWYERS contributes to a burgeoning literature that seeks to not only criticize some of the most persistent issues with the legal profession, but also to highlight the latest innovations and proposed reforms to these issues both in America and abroad. Rhode’s background research is comprehensive to an exhaustive extent. Although the arguments presented here are not unique to Rhode’s work, this book provides a thorough review of scholarly and popular accounts through each substantive chapter. Another highlight of the book is the number of suggestions for future work it poses. In any given chapter, there are more than a handful of dissertation ideas. Finally, the book provides useful ideas for reform that are valuable for both scholarly and practitioner audiences across several areas of legal interest.

This achievement of the book, I believe, is also the source of my main critique. Notably in Chapter 5, Rhode provides examples of Great Britain and Australia’s approaches to regulation, [*120] why the countries arrived at them, and their relative successes within those schemes. Aside from these examples and some anecdotal evidence throughout (especially in Chapters 4 and 5), I was struck by how little new evidence was introduced in the book. Perhaps because the book is not targeted toward a specific academic audience and is meant to be widely accessible, it does not seek to elaborate on the many proposed research ideas within. But, I was left wanting to see Rhode test some of the numerous hypotheses she posed throughout the book.

Another criticism concerns some of the strategies the book lays out for reform. As one good audience for this book is prospective students and early career lawyers, I was struck by some of Rhode’s ideas for how this group might best improve their chances for a satisfactory professional life. For example, she suggests that law students should do some introspection before entering the market, ensuring that the legal job they choose best fits with their own interests and priorities. This strategy is surely a difficult one for the average lawyer or law student with regards to the costliness of a job search and the dearth of jobs Rhode rightly calls attention to that achieve work-life balance. It seems to be a strategy best suited for those graduating from elite law schools, who are not necessarily those who need a leg up in the profession.

As I mentioned, I believe this book is useful for prospective law students and early career lawyers. I also think that it could be useful for scholars of the legal profession who are seeking a comprehensive resource about criticisms of the profession and proposed reforms. I do agree with Rhode that the legal profession is ripe for some introspection and that reform is necessary in order to be more responsive to the legal needs of the public, and of those seeking to enter the profession. However, as she also demonstrates, there are many gaps in the literature that need to be addressed.


REFERENCES:

Galanter, Marc. 1974. “Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change.” LAW AND SOCIETY REVIEW. 9(1): 95-160.

Sandefur, Rebecca L. 2015. “Elements of Professional Expertise: Understanding Relational and Substantive Expertise through Lawyers’ Impact.” AMERICAN SOCIOLOGICAL REVIEW. 80(5): 909-933.

Shanahan, Colleen F., Anna E. Carpenter and Alyx Mark. 2016. “Lawyers, Power, and Strategic Expertise.” DENVER LAW REVIEW. 93(2): 469-521.

MEMORANDUM REFERENCE:

Barrett, Michael. 2016. Director Michael Barrett to Governor Jay Nixon, August 2, 2016, Missouri State Public Defender, Office of the Director. http://www.publicdefender.mo.gov/Newsfeed/Delegation_of_Representation.PDF

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© Copyright 2016 by author, Alyx Mark.