ROB BEJESKY, Independent
Email: robbejesky@yahoo.com

Rule 8.4 of the Model Rules of Professional Conduct requires lawyers to impart honest representations of the law and candid legal advice. Rebuke roused due to advisory opinions furnished by government attorneys who offered an unchecked vision of the Commander in Chief authority, sanctioned illegal detentions and interrogations, and slighted human rights abuses on combatants, suspected terrorists, and innocent detainees. Professor John Yoo confronted much controversy for his memoranda written while serving as Deputy Assistant Attorney General in the Department of Justice Office of Legal Council. Yoo was criticized by academia, sued by a former detainee, subject to a prolonged investigation by the U.S. Department of Justice Office of Professional Responsibility, and faced advocacy for disbarment and penalties at U.C.-Berkeley Law School. Yoo surmounted these challenges, but Spanish prosecutors brought criminal charges for war crimes against Yoo and five other Bush Administration legal advisors. The appeal is currently pending before the Spanish Supreme Court. Combining the obligations of Rule 8.4, fundamentals of democratic governance, and this case study, this article offers a five-point inquiry into the details of the relationship between the attorney-advisor and government-client and the intentions for rendered advice. The work emphasizes that legal consultation to a government-client can have such a reverberating impact on taxpayers and require prolonged sacrifice from citizens that certain considerations should elevate the due diligence of the government. Salient variables include the notoriety and acceptance of the advisor’s preexisting legal positions on issues in question, whether the advisor knew guidance on essential policy questions would be used to substantiate government actions or was to be employed for initial cogitation, whether the substance of the legal opinions would be expected to attain accord from the legal community, and whether consultation would fail a common-sense test that could subject government officials to criminal or civil liability.

LESLIE C. LEVIN, University of Connecticut School of Law
Email: leslie.levin@law.uconn.edu
CHRISTINE ZOZULA, Department of Sociology, University of Connecticut - School of Law, Assistant Professor of Sociology
Email: christine.zozula@gmail.com
PETER SIEGELMAN, University of Connecticut - School of Law
Email: peter.siegelman@law.uconn.edu

The research reported here uses information from the admissions files of lawyers admitted to the Connecticut bar from 1989 to 1992 to compare those who were disciplined with those who were not disciplined. It analyzes information reported during the bar admissions process that may predict later lawyer misconduct including, inter alia, prior criminal history, problem credit history, prior employment history, academic misconduct, substance abuse, and psychological history. The study reveals that many of the responses on the admissions application are statistically associated with an elevated risk of future discipline. Nevertheless, these variables nevertheless make very poor predictors of subsequent misconduct. The explanation for this seeming paradox is that the overall baseline likelihood of discipline is so low (only about 2.5% of the 6,159 lawyers in our cohort). Thus, even if some variable (e.g., having defaulted on a student loan) doubles the likelihood of subsequent disciplinary action — a very strong effect — the probability of subsequent discipline for someone with a student loan default is still only 5%. It seems highly unlikely that any regulator would be comfortable denying admission to an applicant who had only a 5% chance of subsequent discipline. Put differently, even knowing that an applicant has a substantially elevated risk of future discipline is probably not sufficient to justify some kind of corrective or preventative action, given the low baseline risk.

JOHN FLOOD, University of Westminster, University of Miami - School of Law
Email: john@johnflood.com

The Bar Council and the Bar Standards Board entered lengthy critiques of my, and Morten Hviid's, report on the Cab Rank Rule undertaken for the Legal Services Board. The original report is 40 pages. The Bar Council response runs to 30 pages but the BSB response runs to nearly 90 pages! Both responses say that we essentially miss the point of the cab rank rule (that barristers must be like taxis and take any client that comes along) and that without it the rule of law would collapse. The responses rely on judicial pronouncements mostly.

However, it is clear that neither group understands the nature of social science research and the role of empirical evidence. Time and time again the responses reject our use of empirical evidence by the simple assertion that it's wrong. Our response attempts to put straight the misconceptions of the Bar over the cab rank rule. We say the rule is now used to bargain with government and solicitors over the levels of remuneration; it is no longer about representing the odious client. For indeed, the more odious the client, the more likely the client will be represented for their attendant publicity value.

NORA FREEMAN ENGSTROM, Stanford Law School
Email: nora.engstrom@law.stanford.edu

It has long been taken as gospel that attorney advertising drives down the cost of legal services. The Supreme Court assumed it when first permitting attorney advertising in the landmark First Amendment case, Bates v. State Bar of Arizona. And, in the decades following Bates, courts, commentators, the ABA, and the FTC have followed suit, frequently touting advertising’s ability to cut consumer costs. The price effect of attorney advertising is thus both seemingly settled and also deeply embedded in its judicial justification.

But there is a wrinkle. Though it appears advertising did drive down prices for routine legal services in the years immediately following Bates, in the intervening decades, there has been a decided, yet heretofore unexplored, shift. Contemporary attorney advertising is now mostly the province of the personal injury bar. Yet there is scant evidence that attorney advertising reduces the contingency fees personal injury lawyers charge. To the contrary, the best, most sophisticated, most comprehensive study of legal fees and attorney advertising ever conducted found that, unlike for most basic legal services (e.g., wills, personal bankruptcies, uncontested divorces), those who advertised personal injury legal services charged higher prices than their non-advertising counterparts. Other evidence likewise shows contingency fees have not dropped, even while personal injury lawyers’ ad expenditures have soared.

This fact has been all but ignored, though it is of enormous consequence for both the legality of attorney advertising and the delivery of legal services more generally. This Article aims to reopen and reorient the “settled� attorney advertising debate, in light of the particularities of personal injury practice and the changing nature of the market for personal legal services in the United States.

RAKESH K. ANAND, Syracuse University College of Law
Email: rkanand@law.syr.edu

This essay was presented at a conference on “The Law: Business or Profession? The Continuing Relevance of Julius Henry Cohen for the Practice of Law in the 21st Century.� It addresses a broad social issue: commercialism’s growing impact on society as a whole and how we might think about law and the role for lawyers in light of this state of affairs. Organized around an understanding of both economics and law as cultural practices – and, as such, as ways of knowing, or being in, the world – at least in United States, the broad message of the essay is that (a) the American embrace of the cultural practice of economics has put the political order in a bad place and, thus, the social situation is a troubled one and (b) the cultural practice of law and the legal profession represent a locus within which to assist society in moving in the direction of change.