Customer Reviews

In the Interests of Justice: Reforming the Legal Profession

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In this penetrating new book, Deborah L. Rhode goes beyond the commonplace attacks on lawyers to provide the first systematic study of the structural problems confronting the legal profession. A past president of the Association of American Law Schools and senior counsel for the House Judiciary Committee during Clinton's impeachment proceedings, Rhode brings an insider's knowledge to the labyrinthine complexities of how the law works, or fails to work, for most Americans and often for lawyers themselves. She sheds much light on problems with the adversary system, the commercialization of practice, bar disciplinary processes, race and gender bias, and legal education. She argues convincingly that the bar's current self-regulation must be replaced by oversight structures that would put the public's interests above those of the profession. She insists that legal education become more flexible, by offering less expensive degree programs that would prepare paralegals to provide much needed low cost assistance. Most important, she calls for a return to ethical standards that put public service above economic self-interest.

Elegantly written and touching on such high profile cases as the O.J. Simpson trial and the Starr investigation, In the Interests of Justice uncovers fundamental flaws in our legal system and proposes sweeping reforms.

"A thoughtful and well-documented analysis, from a broad public perspective, of basic and enduring problems of the American legal profession. In The Interests Of Justice presents the insights of a distinguished scholar into legal ethics, the cost of legal services, the delays in the legal system, the role of the law schools, and 'life' in contemporary law practice."--Geoffrey C. Hazard, Jr., Trustee Professor of Law, University of Pennsylvania

"This is an important and timely book. It provides a comprehensive survey of the common complaints against lawyers and the legal system; a careful analysis of the most serious problems with the way lawyers perform their jobs, and make--or fail to make--available their services, and an imposing array of ambitious but workable proposals for reform. The book expertly builds upon the best that has been thought and said about legal ethics and legal practices in the last 25 years."--Robert W. Gordon, Fred A. Johnston Professor of Law, Yale University

A very interesting diagnostic of the major flaws in the U.S. legal system, by Deborah L. Rhode, Professor of Law at Stanford Law School. Well written, this book unveils many of the fundamental reasons for the perception that the public at large has of the lawyers and their trade..... The chapters titled Lawyers and their discontent, The advocate's role in the adversary system, and the Regulation of the profession, are truly revealing vis a vis the current problems that plague legal practice. Professor's Rhode suggestions as to possible solutions towards a betterment of the workings of the legal system are thought provoking.
The funny thing about this book, is that you can extrapolate many of the revelations about the rocky road of legal education and the structural problems that now affect legal firms in the U.S., to other legal systems, outside the common law area..... So, even as a mirror of the flaws and shared problems that affect the legal profession in other countries, such as the commercialization of practice and the underestimation of ethical standards in favor of lawyer's economic self interest, this book is recommended reading.

Rhode's sbook is billed as a systematic study of the sturctural problems confronting the legal lprofession, and it delivers on that theme. It concentrates on identifying real problems associated with the practice of law in America, and avoids many of the contentious areas that scholars love to write about. There is no lamenting about the glories of the classical period; there is no invocation of the nostrum of simply returning to more prudence and restraint in the practice of law. She doesn't blame the legal realists or any other group for leading us into our present condition. Nor does she overstate the influence of the law on our society, and indeed suggests that law is more the effect than a cause of our social tensions. All of these matters are of great interest, and not without importance. But her focus in in examining modern legal practice as it actually and directly impacts the legal system, and in drawing up a balance sheet of its assets and liabilities. In short, she sticks to her guns and explores the opportunity that we lawyers have to make a better contribution to our commonweal by recognizing and changing some of the flaws in our practice. The primary thesis of the book is that the profession is not sufficiently accountable to the publc, for whom-presumably-it acts. She explores in some detail the relative ineffectuality of our bar organizations and our courts to provide a desired degree of regulation over lawyers. While she acknowldeges that no one wants the heavy hand of government to control our lawyers, she repeatedly points out how and why our self-regulation is more self-serving than regulating. Disciplinary groups lack the resources and commitment to investigate most complaints. Judges are loathe to sanction fellow attorneys, and consider that handling complaints about discovery abuses and other unethical acts don't do anything to advance resolution of cases. And attempts to toughen the Model Rules and other controlling regulations have been largely repelled in favor of promoting the creed of zealous advocacy. Rhode tackles the excesses of the adversary system, pointing out that it does not always promote truth finding, and in many cases deters access of deserving clients to the resources of our legal system. A review of Rhode's book in the Feb. '01 isssue of the ABA Journal is critical for understating lawyers' drive for money as the key operative problem, and suggests that desired reforms will not materialize unless we are presented with some kind of really significant crisis. And certainly, as you read through her suggested reforms, balanced as they are, the easiest reaction is that lawyer greed will not permit such changes. But surely she is correct to lay out the problems, and at least we lawyers should read the record. If we are half the problem solvers that we say we are, we should want to act before a crisis is upon us. And she is prbably right in saying that if we can improve our accountability to the public, we will concurrently improve our own professional lot.

As it happens, two of the very best books on law I have read so far this year have been written by people whose political outlooks differ significantly from my own. This is one of them. (The other is W. David Slawson's _Binding Promises_, which I've reviewed as well.)

In this volume, Deborah L. Rhode sets out to tell us what is wrong with the legal profession and how to fix it.

That's a big job, and it is to her credit that she succeeds as well as she does. Rhode's exposition is a delight: she possesses an absolutely first-rate critical intelligence (including a highly sensitive B.S. detector); she writes clearly and gracefully; and she has an insider's view of the legal profession. As a result she has a firm grasp of the competing incentives facing both lawyers and legislators, as well as a keen insight into the self-serving rhetoric of the bar associations.

I will not bother picking nits about minor points. Rhode offers, and discusses at length, two absolutely critical insights which should be not only read but shouted from the rooftops by anyone concerned with the present state of the legal profession. These are as follows:

(1) The legal profession uses the power of the law to act in an anti-competitive fashion and prevent the intrusion of lower-cost alternatives into its market -- all the while proclaiming itself to be above sordid and crass "commercialism," as though the practice of having paralegals thrown in jail is _really_ intended for the "public good" and only _happens_ to protect overpriced attorneys from competition.

(2) Legal education, as currently practiced, is neither necessary nor sufficient as preparation for either law practice or legal scholarship. Moreover, the few times anybody has bothered to check, there has been basically no correlation whatsoever between law school performance and professional performance.

The second of these is actually a consequence of the first, and I would have liked to see more discussion of this point than Rhode provides. The ineffectiveness and irrelevance of legal "education" is a direct, economically intelligible consequence of the legal profession's casting itself as a sort of intellectual priesthood and maintaining its "guild" status by law; here I think Rhode could profit from a closer look at her own inconsistent case for the value of competition.

But I won't argue the point here. This is a terrific book all around, and every lawyer and law student should probably read it if possible.

Also recommended: Mary Ann Glendon's _A Nation Under Lawyers_, especially for its delightful debunking of the legal profession's attacks on "commercialism." In this respect and others, Rhode's book is a worthy successor to Glendon's and belongs on the shelf next to it.

Rhode's assessment of the U.S. legal system's problems is presented clearly and comprehensively, and, to some extent, persuasively. I found the writing at times dry, typical of what one might expect in an academic paper. However, if you're interested in the law, you are likely to gain some insight from Rhode into the legal system's woes as seen by those within and outside the profession. Although the book appears to be thorough, well researched, and documented, Rhode sometimes mixes her own biases and opinions with the facts, without making a clear distinction. For instance, with respect to hiring, mentoring, and promotion of lawyers in law firms, Rhodes states that disfavoring women and minorities stigmatizes and subordinates the entire group, while disfavoring white males does not. On this issue, her point is that preferential treatment is needed to remedy discrimination encountered by certain groups, which requires disfavoring members of other groups (presumably straight white males). In this example, her statements related to affirmative action are largely passed off as fact. Presumably, the reader is expected to accept these comments at face value, without substantiation or discussion of alternative views or approaches that address problems of employment discrimination. From her mixing of fact and opinion on this topic, readers may wonder what is really accurate in this book, and what is not.

Deborah Rhodes asserts the need to bring the practice of law more in line with the ideals of the profession. This is a worthy goal but I take issue with a number of her suggestions for reform. On page 18 she recomends "reducing the need for legal services, lowering the costs of services, and expanding the range of alternatives available". She may or may not be correct in her estimation that these things will provide benefits to the consumer. One thing is certain, they will mean reducing the demand for lawyers and lowering the compensation for lawyers. They may also decrease the freedom, rewards, and the overall desirability associated with the profession.

This is similar to what the HMO's have done for the medical professions (lower pay, less freedom, less desirable working conditions). They also resemble what the New Teaching Standards and standardized testing have done for the teaching profession (reduced freedom for teachers in designing curricula, and reduced ability to serve the individual needs of students). I am reminded, as well, of all of the agricultural advancements that have occured over the last century, adding efficiency to the system and adding benefits to the consumer to keep suply up and prices low. But these advancements have had obvious drawbacks in terms of there ultimate affects on farming as an occupation.

In the realm of higher education, we have seen a shift towards "distance learning" and a decrease in the number of "full professor" positons available, accompanied also by reduced compensation for professors and increasing expectations from them (when the expectations were not low to begin with)- many of these changes have been brought about by budget conscious school administrators who I have yet to see recomend "distance administrating" to meet budgetary goals.

Consolidation is occuring within all our major industries (as indicated by the recent trend in mega mergers). These are often brought about, not only to increase market share, but also in the name of benefits to the consumer resulting from added efficiencies to the system (which, by the way, are no guarantee). What is guaranteed is that the total number of desirable positions will be reduced in the name of efficiency (note the culling of management invariably following large mergers).

I am sure there are many who are standing by with a ready "Boo-Hoo" for all of the spoiled Lawyers, Doctors, Professors, Farmers, Teachers, executives, and engineers. Maybe it's time for these professionals to get off of there high horses and join the ever expanding ranks of the proletariat. We might use a similar rationale to justify the reduction in the wages of U.S. factory workers so that they are on par with what foreign labor will work for. This might result in reduced prices for the consumer (or it may just result in more money to spend on advertisements, the sponsorship of pro athletes, and executive compensation) but would it be a step in the right direction? No.

As the number of desirable jobs available to the increasing number of new workers continues to diminish I am left to wonder wether we have lost sight of the fact that consumers are also workers and employees. Often, benefits to the consumer come at the expense of the worker but this fact is too often left out of the decision making process.

I have a shelf of 20 books describing the shortcomings of legal practice today. I do not find anything new in Rhode Members of the legal profession are worried, and the public holds much of the profession in low regard. Yet, we must have the law and at its best it truly holds our society together, and establishes standards of free discussion of evidence.

The Rhode book is full of suggestions preceded by "should", "need to", "desirable that", "train lawyers" and "reduce need for". The last is not quite so. There is much need for conflict resolution which does not go to court owing to the hassles with lawyers and judges.

Those who should follow up and implement these "shoulds" and provide the remedy, namely the judges and the legislators, are themselevse lawyers. The problem is stubbornly analogous to Aids, where the disease fighting system becomes itself diseased.

There must be external oversight. We need strong citizens commission formed with a majority of non-lawyers.

I have written a short book to this effect but it does not yet have a publisher. I welcome support on publication. .....