Document Type

Article

Publication Date

Summer 2003

Keywords

William Simon, Mason Ladd Lecture, The Practice of Justice, Regulation of lawyers, Nonlegal regulation of lawyers

Disciplines

Law and Society | Legal Ethics and Professional Responsibility | Legal Profession

Abstract

It is truly an honor to be asked to Comment on the work of William Simon, one of the scholars who has done the most to contribute to the reputation of legal ethics as a field with intellectual rigor and depth, as well as one with significant implications for legal theory generally. The power of his critical faculties is unmatched: the platitudes offered by the organized bar in defense of the dominant view of legal ethics lie in tatters after the sustained assault in the first three chapters of The Practice of Justice. In fact, it can be difficult to find objections to the dominant view that Simon has not already articulated more forcefully. But his project is not merely critical, as his construction of the alternative contextual view of ethics shows. His Mason Ladd Lecture is a welcome extension of the contextual view, moving from the micro-evaluation of the ethics of individual lawyers into the macro level of institutional analysis and questions of regulatory regime design. Section I of this Comment is a brief review of this proposal.

Simon's work has been a tremendous influence on my own thinking about legal ethics, so I have good reason to fear the ignominious fate of commentators who end up agreeing with the subject of their evaluation. Indeed there is a great deal in this Lecture to agree with. Some of his suggestions for reform are so far-reaching, however, that one is bound to have a few reservations and questions. Section II of this Comment contains some questions about the details of using a market-based approach and a diversity of ethical norms to regulate lawyers. Simon has anticipated many of these objections, none of which are likely fatal to his project, but some of which seem to be a bit more problematic than he acknowledges. For example, even if a sufficient number of clients desire to hire high commitment lawyers, the transaction costs involved in matching up high commitment lawyers and clients may be sufficiently high to thwart the operation of the reputational market Simon envisions. Section III takes issue with the argument that nonlegal methods of regulation can avoid the corruption of regulation by self-interested professionals. Although nonlegal regulation offers many advantages over a formal scheme of legally enforceable rules, it is no less susceptible to capture by powerful actors than a system of legal regulation.

Comments

This article pre-dates the author’s tenure at Cornell Law School.

Publication Citation

Published in: Florida State University Law Review, vol. 30, no. 4 (Summer 2003).

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