Felstiner, WLF --- "Lawyers' Obligations for Managing Justice" [2000] ALRCRefJl 35; (2000) 77 Australian Law Reform Commission Reform Journal 72

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Reform Issue 77 Spring 2000

This article appeared on pages 72 – 76 & 93 of the original journal.

Lawyers’ obligations for managing justice

By WLF Felstiner*

I hope you’ll indulge the rather tortured path this talk will take. I’m going to tell you how I think justice might be defined in relation to lawyers. Then I’m going to keep score, that is, tell you what the empirical literature has to say about how American lawyers are doing, which is not well. Then I’m going to tell you what is wrong with the empirical literature. Finally, I’m going to give you some more focused empirical data, my own, which suggests that some American lawyers are not doing that badly, and then suggest the limitations of this research as well.

I think of justice in lawyer-client relations in both substantive and procedural terms. Substantively, the traditional position is that lawyers produce justice by counselling clients to do the right thing. They transform their clients’ objectives into socially acceptable goals, they mediate between their clients’ illegitimate objectives and the social interest, they refuse to do the clients’ most destructive and antisocial bidding, even if it is technically legal. Of course, it is not easy to define ‘the right thing’ or, on many occasions, for a lawyer to identify it. But, for the moment, let us assume that some counsel tends more toward socially acceptable ends than others, and that such advice is intended to turn clients away from the most aggressive behaviour and selfish objectives.

Procedurally, justice in these relationships would mean that lawyers treat clients well – that lawyers are accessible, responsive, empathetic, communicate effectively, pay prompt attention to their clients’ affairs, and are motivated by professional values rather than financial returns. In sum, the procedurally just lawyer treats a client with respect.

Where does the idea that lawyers ought to counsel their clients along socially constructive paths come from? It is not a notion that is self-evident. If the lawyer is thought to be an agent for the client, then the lawyer’s conception of goodness, morality, social acceptability, constructive means, or the spirit of the law would be irrelevant. But the lawyer has long been normatively considered more than an agent. Inherent in the idea of a profession, incorporated in repeated codes of ethics, is the idea that lawyers are accountable to court and public, have responsibilities to society that have priority over their own interests, and, although particular instances are hotly contested and even litigated, also have responsibilities higher than the interests of their clients.

Empirically, the case that law is a public calling, and that lawyers have assumed a special responsibility to advance the public good, is not that obvious. I won’t go into them in detail, but the major works in the US that are concerned with the social role of lawyers provide only a shallow picture of the profession in action. These works tend to be elitist in conception. Although they talk about lawyers and the legal profession in general, when it gets down to the details, they are concerned only with the posture of large firm lawyers as they have faced the current transformation in practice settings and structures. Moreover, the research suggests that lawyers in large firms do not struggle with clients over basic questions of social morality because their views on such issues are rarely out of step with those of their clients.

When we turn to evidence of the behaviour of lawyers in general, we see that the notion that lawyers are motivated more by financial returns than professional values has wide currency in the socio-legal world. This is, of course, the familiar litany that law practice has been transformed from a profession into a business. This refrain has been heard for many decades, but seems to have gained force and credibility in the past 10 years.

The thin trickle of empirical evidence supporting the socially constructive role of lawyers is overwhelmed by a tide of studies that depict lawyers in the opposite posture – sacrificing their clients’ interests in favour of their own; permitting fee arrangements to dictate strategy; subordinating clients’ positions to the bureaucratic exigencies of their offices; not pushing their clients’ cases fully for fear of annoying other lawyers or jeopardising future business; and engaging in group settlement practices that enhance fees at the expense of individual clients.

Clients are assumed by lawyers to give priority to economic returns when faced with competing social responsibilities. This is probably correct in the case of business firms. A profit margin oriented view in lawyers’ hands is incompatible with a socially sensitive counselling function. In short, clients are assumed to want aggressive lawyers who will deliver economic returns, and lawyers who value their own returns will do whatever the clients want, as long as they do not run a real risk of being indicted for something.

Not only does the literature on lawyer-client relations suggest that clients other than large businesses or other powerful entities are often in no position to dictate goals and means to their lawyers, but a separate body of work focusing on the interpersonal dimensions of the lawyer-client relationship indicates that lawyers frequently do, in fact, neglect and show little respect for their clients. Clients often experience lawyers as condescending. Legal aid clients are particularly prone to being treated as embodiments of legal problems rather than fully fledged persons. Clients become exasperated when lawyers try to overwhelm them with jargon. Public defenders instruct rather than consult with their clients while some private defence counsel are alleged by their clients to be brash, cold, inattentive, and poor communicators. The literature is full of assertions that lawyers are arrogant and paternalistic.

Clients complain that lawyers are uncooperative, uncommunicative, lack empathy, are rude, unresponsive, evasive, and are tardy in providing services. Studies of lawyer-client relations often report client files that were forgotten or lost. The most common client complaint about lawyers is that they do not respond to phone calls and letters. In criminal defence work, both assigned counsel and public defenders have been found to ration severely the time they spend with clients. Two of the most common types of lawyer malpractice, ‘blowing’ the statute of limitations and suffering default judgments for failure to appear, can be considered as ‘inattention’ in the extreme.

Problems in communications with clients exist despite the high importance training in such skills is accorded by both law students and their prospective employers. Lawyers fail both to listen and to explain legal matters adequately in lay terms. In addition, lawyers are frequently indifferent to clients’ feelings and to the pace of their affairs. My own work on divorce lawyers provides extensive accounts of lawyers both refusing to engage with their clients’ emotions and schooling clients about the need to separate their emotions from their objectives. The literature in poverty and civil rights practice suggests that lawyers routinely silence their clients even while purporting to ‘tell their stories’. A refusal to engage with clients’ feelings has an effect on the quality of service provided: clients whose feelings are ignored or discounted have difficulty in responding to the legal counsel that the lawyer provides as well as to the lawyer personally.

It is not clear what proportion of clients are merely annoyed by the bad manners of lawyers and how often these behaviours inflict serious social or psychological traumas. Procedural justice theorists have found in a wide range of contexts that people are remarkably sensitive to the process that they experience in encounters with authority figures like lawyers.

Before procedural justice researchers turned their attention to tort litigation, litigant satisfaction was assumed to reflect only considerations of outcome, cost, and delay. Economic analyses of procedures, and the proposals for reform derived from them, assume that litigants are primarily concerned with recoveries and payouts and with how much it costs and how long it takes to bring a case to closure. Lind and his colleagues, on the other hand, found that what they call ‘dignitary process’ issues are even more important than objective outcomes because respectful and dignified treatment implies that the recipient is a fully fledged, valued member of society, a belief that goes to the core of the way that we define our self-identity.

If this theory of status definition is correct, then we can see that a lot of ordinary behaviour in the lawyer-client context is charged with much greater significance than lawyers either realise or intend. Not answering a phone call, not answering the mail, not sharing plans and developments with clients, not pushing a client’s affairs on to closure, are no longer just bad manners. Instead, suggests the theory, such behavior may inflict serious psychological trauma. Thus, lack of respect for clients reflects not only the power of lawyers to behave without considering the effect of that behaviour on their clients, but it may involve the power to cause serious injury to those on whose behalf one is supposedly acting.

Changes in the culture and context of large firm practice, which have been so salient in the past 20 years, do not, by and large, affect lawyers working in the personal services hemisphere of the profession. For these lawyers the intriguing question is not the substantive side of justice, for empirically hardly anyone has made the case that a socially responsible practice has at any time in the past 100 years been high on their agenda (this is not to say that it has not, but rather that we do not know). Rather, the interesting question is on the procedural side – why might a significant proportion of these lawyers treat their clients so badly? There are apparently several causes including socialisation into practice norms, occupational stress, substance abuse, and the image that lawyers hold about what clients want. But the most powerful influence may be the workload that these lawyers face.

We start with a simple proposition. Almost all lawyers want to be over-committed, and a large proportion of them actually are. This drive is as true of lawyers handling criminal cases on a private basis as it is of lawyers in civil matters. The incentive structure pushes in that direction. Lawyers generally cannot assure future business by contract. Many do not have clients who know that they will require legal services of any particular volume in the future, and those that do frequently find that those clients are unwilling to commit that future business to their current lawyers. The typical lawyer and law firm response is to take on all the work that they can get.

Government lawyers, particularly public defenders and legal aid attorneys, are naturally unconcerned with maintaining a large caseload for personal economic reasons. But the limited extent of public financing of legal services for the indigent frequently puts these lawyers in the position of facing large, if not crushing, caseloads. Thus, we see in the literature the familiar picture of public defenders who spend little time with individual defendants, even in felony cases, and legal aid attorneys who are forced to adopt the same working practices. Large caseloads are imposed on government lawyers rather than created by them as is the case with private lawyers, but the effect is likely to be the same on their ability to relate to clients in a deliberate and considerate manner.

The connections between lawyer overload and their inattention to clients are obvious. Matters that do not absolutely require immediate attention may receive either no, or a glancing, response. Clients who are on the receiving end of such behaviour experience neglect, rejection, and disrespect. Overloaded, harassed lawyers are all too likely to be short-tempered, impatient, highly focused on the instrumental dimensions of their work and little inclined toward caring, empathy, responsiveness, cooperation, sharing, and patience.

Not a pretty picture. It is, I assure you, an accurate reflection of the literature. But how reliable is the literature?

I began with the questions of whether lawyers counsel clients along socially constructive lines and whether they treat their clients with respect. If most were to do both most of the time, I believe that we ought to be quite content with the connection between lawyers and justice. Most of the evidence that we do have points in the other direction. But I am uneasy with that picture. I believe that there may be a major, possibly fatal, flaw in the way that I, and other social researchers, go about synthesising empirical materials. Some of the hyper-negative picture is probably an artefact of social research generally. It is natural to direct studies toward problematic rather than untroubled areas of inquiry; empirical researchers are more often than not cynics accustomed to revealing patterns of inequity beneath formalistic platitudes or unexamined conventional wisdom.

But something even more dangerous is going on. Legal systems are immense and complicated. Systematic empirical research on them has only been underway on a sustained basis for about 50 years. For a long time I have employed the metaphor of a mosaic composed of thousands of small ceramic chips. Fifty years ago we began with a big, blank wall. As each new study was reported a new chip went up on the wall. Over time a comprehensible picture began to emerge, or so we assert. The model scientific paper, for instance, begins with a review of the literature on the area under study. Then doubt is created about some small slice of the general picture and replaced by the researcher’s own vision, but surprisingly the rest of the mosaic is accepted uncritically. We just assume without careful scrutiny that the sum is made up of the parts. Thus, the description I have presented of lawyers and justice is composed of the work of a large number of scholars whose interests, agendas, and methods vary widely. Since good survey research is both technical and expensive, much of the mosaic is derived from small-scale case studies, which are then endowed with unwarranted generalisability. None were concerned with the central question of surveying the field of lawyers and justice generally. As a result, the composite may not be an accurate picture of an area of legal life as a whole, but rather many narrow snapshots that in the aggregate is both seriously incomplete and misleading. We may not have a mosaic; we may have a jumble of ill-fitting and misshapen pieces.

Until the research that I’ll describe shortly, there really has not been an attempt to determine the extent to which lawyers across the board adopt a socially constructive posture with clients or treat them respectfully. The evidence on the substantive side is not that, when presented with a choice, lawyers fail to take the socially responsible path with their clients, but that in the circumstances in which they have been studied they frequently put their own interests ahead of those of their clients. These are not the same thing. Even if the ‘circumstances in which they have been studied’ had been randomised, which, with the emphasis on solo practitioners and personal injury, legal aid, and criminal defence lawyers, they clearly have not, we have no assurance that the advice that is given to clients is not more often than not, or predominantly, socially responsible, particularly where the lawyers’ own interests are unaffected. Moreover, I believe that if researchers were looking at the question of socially responsible counsel rather than who is feathering whose nest, they would adopt different research strategies, ask different questions, and produce results we have no way to anticipate.

On the procedural side, the evidence that many lawyers neglect some of their clients some of the time may, at first blush, appear compelling. But I now seriously question that picture. Allan Lind of Duke University and I have recently completed a random, national survey of individuals who have recently been clients of American lawyers. The larger project was to investigate dysfunctional elements of lawyer-client relations in the US — their frequency, distribution, origins and consequences. Much to our surprise, for our expectations were based on the literature that I have just described, the incidence, as reported by clients, of disrespectful lawyer behavior is quite low.

Now, because of the marked interest in possible gender differences, we have looked at the reactions to men and women lawyers, as well as to lawyers generally. There are no real differences in the extent to which women and men lawyers are viewed by their clients as friendly, confident, polite, organised, trustworthy or fair. Men are thought to be somewhat more leisurely, more experienced and more willing to talk about non-legal matters while women are less evasive, listen more carefully, are more likely to let clients explain their problems, more likely to keep clients informed, more likely to answer telephone calls and letters, more willing to deal with the emotional aspects of the legal matter, more likely to treat clients with respect and to be concerned with them as people, more careful to consider their clients’ views and needs and more likely to treat clients’ cases as important. There are no differences in lawyer gender in the bottom-line questions about the likelihood that clients would recommend the lawyer to others or use the lawyer again. The differences that I have noted are quite small and are not statistically significant, even when we control for area of law, client status and gender, and cross-race effects. Thus when investigated directly, the overall picture is that the great majority of both men and women lawyers are perceived to have treated these clients quite well on all the ways that the literature suggests are problematic.

In sum, if we believe that it is socially desirable for lawyers to listen to their clients carefully, to communicate with them in a direct manner, to give them a significant role in setting the agenda for discussions, to keep them informed of the status of their legal matters, to respond promptly to their inquiries, to treat them with respect, to be concerned with them as people and to act as if their problems were important, then both men and women lawyers are doing quite well. This is despite the picture that one would get by doing a general survey of the literature rather than a survey of people who have actually used lawyers.

But I want to close with one caution. We did not survey all lawyers randomly. Rather we looked at that portion of the American bar, about half of it, which primarily provides legal services to individuals. On the important question of gender differences, a very recent study in the UK by Sommerlad and Sanderson came to a very different conclusion.

Sommerlad and Sanderson’s male respondents (and thus, they say, the profession in England) adopt what we take to be the conventional two-step argument. Men are inclined to be strong, dominant, powerful, aggressive, logical, tough, and resistant to emotional issues. This macho characterisation is professionally good. Women are inclined to be vulnerable, intuitive, empathic, emotional, subjective, personal, and sensitive to context. This characterisation with caring as the centre-piece is assumed to be undesirable for law practice.

The origins of this view seem to be a post hoc rationalisation by men solicitors of why women have not succeeded more than they have, as success is conventionally judged in the English profession. It is thus a projection of what men think clients want, rather than a finding directly about client preferences. On the other hand, when one looks directly at client preferences, as we did, the results are not only more positive for women, but much less macho for men. In other words, the clients that we studied value many of those very traits which Sommerlad and Sanderson’s respondents thought were feminine and undesirable. The point is that we were probably looking at different populations of clients – they make heavy use of data from commercial firms while we excluded business organisations other than ‘mom and pop’ operations from our client survey. In other words, the status of ‘female’ values may to some extent be an artefact of our respective research strategies.

And, in like manner, the encouraging picture that I have just recounted of the way that lawyers acting for individuals are perceived by clients may, or may not, be duplicated when clients are organisations. I don’t know. The bottom line, then, is that as consumers of socio-legal research, you must attend to the small print, you must focus on the populations studied, methods used and analysis produced by those in the research community who would purport to tell you how the world actually operates.

*Professor William Felstiner is the Distinguished Research Professor of Law at Cardiff University. This is an edited version of his speech to the ALRC’s conference, Managing Justice ... the way ahead for civil disputes, Sydney, May 2000.