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Tuesday, October 17, 2006

Research Canons: Legal Ethics/Professional Responsibility

Also today we are discussing Legal Ethics/Professional Responsibility.  (See here for a discussion of the research canons project.)  Please comment on the books and articles that are essential to a new academic doing work in the field.

Posted by Matt Bodie on October 17, 2006 at 07:55 AM in Research Canons | Permalink

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Posted by Alan Childress Not to be confused with the original Canons of ethical rules. This means that the ongoing PrawfsBlawg project of research canons, or essential readings in various subjects, is now spotlighting legal ethics and professional resp... [Read More]

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I posted a version of this list last week on Legal Ethics Forum, http://www.legalethicsforum.com/. My own interests are in theoretical legal ethics, as opposed to the sociology of the profession, the new cognitive/behavioral stuff, or doctrinal scholarship, so this is the list of canonical works on the theory side (in no particular order).

Books:

David Luban, Lawyers and Justice (1988).
Anthony Kronman, The Lost Lawyer (1993).
William Simon, The Practice of Justice (1998).
Arthur Applbaum, Ethics for Adversaries (1999).

Articles:

Richard Wasserstrom, "Lawyers as Professionals: Some Moral Issues," 5 Hum. Rts. 1 (1975).

Stephen L. Pepper, "The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities," 1986 Am. B. Found. Res. J. 613.

Charles Fried, "The Lawyer as Friend: The Moral Foundations of the Lawyer-Client Relation," 85 Yale L.J. 1060 (1976).

Gerald J. Postema, "Moral Responsibility in Professional Ethics," 55 NYU L. Rev. 63 (1980).

Robert W. Gordon, "The Independence of Lawyers," 68 B.U. L. Rev. 1 (1988).

Thomas L. Shaffer, "The Practice of Law as Moral Discourse," 55 Notre Dame L. Rev. 231 (1979), and many other articles by Tom Shaffer.

David B. Wilkins, "Legal Realism for Lawyers," 104 Harv. L. Rev. 468 (1990).

Bernard Williams, "Professional Morality and Its Dispositions," in The Good Lawyer 259 (David Luban, ed., 1983). The essays collected in Good Lawyer are kind of collectively canonical.

Daniel Markovits, "Legal Ethics from the Lawyer’s Point of View," 15 Yale J. L. & Human. 209 (2003).

A few doctrinal articles are sufficiently important that they cannot be ignored, even by theoretical types. These include:

Monroe H. Freedman, "Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions," 64 Mich. L. Rev. 1469 (1966.

Ted Schneyer, "Moral Philosophy's Standard Misconception of Legal Ethics," 1984 Wis. L. Rev. 1529.

Susan P. Koniak, "The Law Between the Bar and the State," 70 N.C. L. Rev. 1389 (1992).

The Subin-Mitchell debate in the Geo. J. Legal Ethics is the best discussion I've seen of the competing values of truth and procedural justice in the criminal defense context. See Harry I. Subin, "The Criminal Lawyer's 'Different Mission': Reflections on the "Right" to Present a False Case," 1 Geo. J. Legal Ethics 125 (1987); John B. Mitchell, "Reasonable Doubts Are Where You Find Them: A Response to Professor Subin's Position on the Criminal Lawyer's 'Different Mission'," 1 Geo. J. Leg. Ethics 339 (1987).

Omissions aren't intended to imply non-canonicity -- this is an off-the-top-of-my-head kind of list.

Posted by: Brad | Oct 17, 2006 8:47:03 AM

The above is a reminder and further evidence of the value of the 'research canons' project, exemplifying the kind of considerate contribution we all can benefit from.

Posted by: Patrick S. O'Donnell | Oct 17, 2006 8:56:43 AM

Here's the specific link to the discussion that Brad is referencing: http://legalethicsforum.typepad.com/blog/2006/10/top_ten_most_fr.html

Posted by: Andrew Perlman | Oct 17, 2006 10:14:36 AM

Brad's list is a great place to start (consider also the Comments attached to Andy's original post at LegalEthicsForum). But [as he notes] it is short on the rich sociological literature here, such as works by Jerald Auerbach and Marc Galanter. A few more classics IMO are:

Heinz & Laumann, Chicago Lawyers: The Social Structure of the Bar (1982).
Robert Post, "On the Popular Image of the Lawyer: Reflections in a Dark Glass," 75 Cal. L. Rev. 379 (1987).
Felstiner & Sarat, "Enactments of Power: Negotiating Reality and Responsibility in Lawyer-Client Interactions," 77 Cornell L. Rev. 1447 (1992).
Douglas Rosenthal, Lawyer and Client: Who's in Charge? (1984).

I would add that anyone entering this field should remember that the U.S. is not the world, and our "legal profession" is not a definitional universality. The best quick read on comparative legal professions is Richard Abel and Philip Lewis, Lawyers In Society: An Overview (1995), but their full 3-volume collection Lawyers in Society (circa 1988) is a must-shelve too. Finally, over at The Legal Profession Blog, http://lawprofessors.typepad.com/legal_profession/2006/10/research_canons.html , I make my pitch that the canons should not be confined to "legal ethics and professional responsibility," and from these posting -- and others on Brad's and Andy's site -- it is clear that is not being confined that way. Thanks.

Posted by: Alan Childress | Oct 17, 2006 1:22:23 PM

Here's a list of some more titles I'd read for this field. (I haven't read Chroust but include it because of its historical reputation.) Some of the older titles have held up better than others but all have had lasting significance.


Stevens, Law School: Legal Education in America . . .
Chroust, The Rise of the Legal Profession in America
Horwitz, Transformation of American Law (Vols I-II)
Roscoe Pound, The Lawyer from Antiquity to Modern Times
Friedman, A History of American Law
Smigel, The Wall Street Lawyer
Heinz & Laumann, The Social Structure of the Bar
Galanter & Palay, Tournament of Lawyers
Abel, American Lawyers

Additionally, there's a book by either Drinker or Biddle, written about 50 years ago, and titled something like "A History of the Legal Profession." (I'm out of the office and can't find the title online.)

Finally, you have to read the pioneering works by Hoffman and Sharswood.

Posted by: John Steele | Oct 17, 2006 1:44:27 PM

A few additional suggestions, again from the sociology of the profession perspective:

* Michael Kelly, Lives of Lawyers (1996)
* Sarat & Scheingold (eds.), Cause Lawyering (1997) -- and their other stuff on "cause lawyers"

Probably not "canonical", but worthy of mention:
* Richard Abel (ed.), Lawyers: A Critical Reader -- excerpts from several works that, in their complete form, deserve canonical status.

* Thomas Geoghegan, Which Side Are You On? (1992) -- non-scholarly, but offers an interesting perspective from a practitioner.

Posted by: The Continental Op | Oct 17, 2006 2:27:06 PM

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