Document Type

Article

Publication Date

10-2001

Keywords

Nonlegal regulation of lawyers, Informal regulation of lawyers, Community-based sanctions, Rational choice theory, Civic republicanism, Richard McAdams, Eric Posner, Legal ethics, Social norms and practicing lawyers

Disciplines

Law and Economics | Legal Ethics and Professional Responsibility | Legal History | Legal Profession

Abstract

What should be done about lawyers who persist in violating ethical norms that are not embodied in positive disciplinary rules? That question has been a recurrent theme in recent legal ethics scholarship. 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. 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.

In this Article, I wish to look critically at the call for a renewed focus on reputation, professional "lore," and informal enforcement mechanisms. In doing so, it will first be necessary to construct some kind of explanatory framework, to understand how professional communities regulate the behavior of individual members. It is one thing for courts to appeal to professional lore, but quite another to account for how these norms are developed, transmitted to novices, and enforced against deviant community members. The linchpin of this analysis is the concept of social norms, which has recently received a great deal of attention from legal scholars. My project may therefore be described as an attempt to give a theoretical account of the development, transmission, and enforcement of social norms in the community of practicing lawyers.

The bulk of this Article is critical, and will be taken up with a series of arguments against devolving too much power to the professional community through the mechanism of social norms.

Comments

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

Publication Citation

Published in: Vanderbilt Law Review, vol. 54, no. 5 (October 2001).

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