Professor

Boston College Law School Faculty Papers

Civil Disobedience and the Lawyer's Obligation to the Law

Rule 11 and Federalizing Lawyer Ethics

Lawyers in U.S. culture are often presented in either an extremely positive or extremely negative light. Although popular culture exaggerates and oversimplifies the 'good v. bad' dynamic of lawyers, this dichotomy provides important insights into the role attorneys play in the U.S. legal system, the boundaries of legal ethics, and the extent to which the U.S. legal system is relied upon to address our society's great moral and social dilemmas.

Law and Lawyers in the U.S.: The Hero-Villain Dichotomy

Alternative Business Structure (ABS) law firms in the United Kingdom allow for non-lawyer owners and investors. This Article analyzes several new U.K. ABS law firms and offers an optimistic assessment of the benefits of these new firm models. ABS firms have created systems that improve legal services for the target clients and have mitigated the negative aspects of lawyer-centric thinking that pervades many traditional firms. ABS firm structure has provided access to capital to allow for investment in employee development and creative use of technology. The ABS form has brought some unregulated activities under the control of regulators and created the possibility of linking legal services to other socially-conscious pro-consumer service providers. Risks emerging from these early entrants into the ABS form include a concern about whether the public aspects of lawyering, such as public oriented duties to improve the legal system and offer pro bono services, become lost in a dominant corporate and client-centered model. If so, a regulatory response may be required to correct this imbalance.

UK Alternative Business Structures for Legal Practice: Emerging Models and Lessons for the US

Retirement and Worker Choice: Incentives to Retire and the Age Discrimination in Employment Act

The problem is often decried: out-of-control attorneys, opportunists, cowboys, self-dealers, and overzealous prosecutors abusing the litigation process either for self-serving ends or from ideological zeal. But one person’s opportunist, cowboy, or self-dealer is another person’s zealous advocate. Lawyers want and need guidance on how to resolve issues that have competing claims to right behavior. The first place many lawyers look to find appropriate guidance are rules of ethics. Lawyers practicing in federal courts will find the search for rules particularly confusing. Unlike the Federal Rules of Civil and Criminal Procedure, federal courts do not operate with uniform ethics rules. District courts use a variety of approaches, with the majority adopting the rules of the state in which the court sits, causing problems for lawyers who have a national practice, but preferable to lawyers who practice within a single state. The cacophony of approaches at first blush begs for resolution through rule-making. But rulemaking on issues of professional responsibility in federal court practice has been an utter failure to date. Multiple cultures and values come together when we try to regulate attorney conduct in federal court practice. When exercising their inherent power to control proceedings in front of them, federal courts often look to either the state rules or the Model Rules for guidance. But even when looking to particular rules, federal courts revert back to a common-law approach by relying on their own body of federal case law to interpret the text. The rules of professional conduct contribute to this common law, contextualized approach to regulating attorney conduct in court practice. The rules do not typically address many of the issues that arise in litigation, often contain open-textured standards, and most importantly fail to address the remedy for violation of the rules, leaving all these issues to judicial discretion. In addition, judicial discretion in applying rules of professional conduct is particularly difficult to constrain. Judges often have primary discretion to choose the rule of decision because of the incompleteness of most lawyer codes and they have secondary discretion because most issues are highly fact-bound and not easily subject to judicial review. In addition, judges have wide fact-finding latitude to simply ignore the attorney conduct questions, which are usually ancillary to the merits of the litigation. Rules are unlikely to constrain this broad discretion, particularly among judges who have a strong culture of autonomy and absolute belief both in their ability to regulate the conduct of attorneys who appear before them and, perhaps more importantly, their finely honed ability to exercise discretion. The debate over uniform approach to attorney conduct in federal court practice has yielded some positive benefits. Federal courts appear to be moving on their own accord toward a system of dynamic conformity (using the rules of the state in which they sit); the Department of Justice has sought through litigation and negotiation to resolve issues of greatest concern to them; and we have developed significantly greater insights into the judge’s role in regulating attorney conduct in litigation.

The (F)Utility of  Rules: Regulating Attorney Conduct in Federal Court Practice

The rapidly expanding Chinese legal profession provides an extraordinary opportunity for the U.S. legal profession to test U.S. assumptions about legal ethics. This essay examines challenges facing Chinese legal education and the Chinese legal profession as it develops norms of legal ethics. This essay examines this process from the law school and law student’s perspective about legal ethics, and then briefly explores the effort to create norms of attorney conduct from a top-down perspective. Both a bottom-up and top-down view show the tremendous challenges facing the emerging Chinese legal culture in building a coherent model of lawyering that can serve as the foundation for a system of legal ethics.

Professional Responsibility in an Uncertain Profession: Legal Ethics in China

The need for multidisciplinary approaches to legal services has given rise to increasingly creative service delivery models. The phenomenon is a natural outgrowth of three important ideas that Louis Brandeis developed. First, his work gave rise to the concept of the Brandeis Brief, which in its broader meaning has become a metaphor for the relevance of such social science insights to legal problem-solving. Second, Brandeis introduced the concept of “counsel for the situation” to capture a vision of lawyering that provided a broader identification of the interests involved, again with an orientation on problem-solving. A third idea championed by Brandeis was to boldly proclaim that business can be a force for good. These ideas, brought together, suggest that clients and users of legal services can benefit not just from a narrow Brandeis brief, but a true Brandeis law firm that unleashes the insights from other professional perspectives, allows for creative problem-solving, and sees the potential of business as a force for good. This essay explores the challenges and opportunities to U.S. law firms that wish to move from using the spirit of a Brandeis brief to become a more fully holistic Brandeis law firm.

Moving from a Brandeis Brief to a Brandeis Law Firm: Challenges and Opportunities for Holistic Legal Services in the United States

Using the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a case study, this Article explores the merger of legal cultures at the ICTY. The ICTY was crafted in a high-stakes international environment and brings together lawyers and judges who have been trained and inculcated typically in a common law/adversarial system or a civil law/non-adversarial system. Lawyers and judges come to the ICTY not only with a distinct understanding of their roles within their home jurisdictions, but also with different skill sets. Merging the legal cultures has not always been smooth. By comparing how attorney-conduct norms are created in the United States—socialization, malpractice, market controls, regulatory processes, and procedural rules—with the practice at the ICTY, it becomes evident that the judges are the dominant source of norm creation in this international court. These norms are created, however, in an environment in which it appears that most of the substantive interaction between the judges, prosecutors, and defense counsel occurs in formal court settings. Future international courts would benefit from additional discussion among the judicial, prosecutorial, and defense functions as norms are created, including shared discussion about codes of conduct for judges, prosecutors, and defense counsel.

Creating Norms of Attorney Conduct in International Tribunals: A Case Study of the ICTY

This article focuses on three current professionalism challenges in the U.S. legal profession: (i) the problem of neglect, poor client communication, and poor management of client funds; (ii) the need to improve the ethical infrastructures in practice settings to enhance both routine practice and ethical decision-making when lawyers confront ethical challenges; and (iii) the challenge of providing legal services to the poor and working class. For each, it turns out that improving adherence to core values requires not just training lawyers to internalize a model of professionalism, and a continuing commitment to self-regulation in some form, but also implementing improved business practices. In other words, a significant part of our failures as a profession are business failures. These failures occur at the individual, firm, and market levels, and at each level we need to consider the business structures that enhance or impair improved practices. 
Business—good business—is not the enemy of lawyers but an important tool to implement our service profession. We need to have a sharper and richer discussion of the business perspective of professional practice, without apologies, if we want to improve the professional practice of U.S. lawyers. In addition, a stronger interdisciplinary conversation with the field of business ethics would help break down the stereotype of business as an amoral, or immoral, enterprise. We must envision business as both a partner and a tool to achieve our larger social goals.

In Defense of the Business of Law

Using the International Criminal Tribunal for the Former Yugoslavia (ICTY) as a case study, this Article explores the merger of legal cultures at the ICTY. The ICTY was crafted in a high-stakes international environment and brings together lawyers and judges who have been trained and inculcated typically in a common law/adversarial system or a civil law/non-adversarial system. Lawyers and judges come to the ICTY not only with a distinct understanding of their roles within their home jurisdictions, but also with different skill sets. Merging the legal cultures has not always been smooth. By comparing how attorney-conduct norms are created in the United States—socialization, malpractice, market controls, regulatory processes, and procedural rules—with the practice at the ICTY, it becomes evident that the judges are the dominant source of norm creation in this international court. These norms are created, however, in an environment in which it appears that most of the substantive interaction between the judges, prosecutors, and defense counsel occurs in formal court settings. Future international courts would benefit from additional discussion among the judicial, prosecutorial, and defense functions as norms are created, including shared discussion about codes of conduct for judges, prosecutors, and defense counsel.

Boston College International and Comparative Law Review

The purpose of this essay is to propose and justify a theory of the proper role of the lawyer faced with issues involving civil disobedience. Given the assumption that civil disobedience sometimes is morally proper, the more difficult question concerns whether civil disobedience might be proper in certain circumstances for general (nonlawyer) citizens, yet still improper for the lawyer, either as individual or as counselor. As described in Part IA, by becoming a member of the legal profession the lawyer takes on special responsibilities, which require the lawyer to make certain personal and professional sacrifices. As described in Part IB, our American legal system, with its Constitution, Bill of Rights, and emphasis on democracy, causes many people to see a close correlation between the rule of law (the notion that there are certain principles of justice with which both governments and individuals must comply) and positive law (the pronouncements of legislatures, courts, and administrative entities). Part IC sets out why, in light of this close identification between positive law and the rule of law, lawyers have a special obligation to act in accordance with the law. Part II of this article discusses the lawyer as counselor. When serving as a counselor, the lawyer provides both raw information and discussion to help the client make a fully informed decision. The lawyer’s role as counselor includes informing the client of his or her options within the law. In order to fulfill this responsibility the lawyer must be able to have a wide ranging discussion with the client. Any limitations on the lawyer’s discussion come from according proper respect for the client’s autonomy.

Civil Disobedience and the Lawyer’s Obligation to the Law

Retirement Incentives in the Twenty First Century: The Move Toward Employer Control of the ADEA

Who Owns Rights: Waiving and Settling Private Rights of Action

Lawyers traditionally claim that they are not morally accountable for the goals or activities of their clients that are within the bounds of the law. This essay explores this concept of non-accountability in the context of corporate transactional representation. We argue that corporate lawyers, whose practice is forward looking, undertaken on behalf of corporate clients who have legally impaired ability to engage in independent moral reasoning, and who function in a world of relatively minimal legal oversight (i.e. whose work is furthest from the model of the adversary system) cannot persuasively claim that they are not morally responsible for the work on behalf of their corporate clients. This conclusion is, in fact, heartening if it encourages corporate transactional attorneys to focus more deeply on the value of their work to society.

The Moral Responsibility of the Corporate Lawyer

Life After Law School: On Being a Retired Law Professor

In his 1994 seminal article on Federalizing Legal Ethics, Prof. Fred Zacharias examined the need for a national and uniform code of ethics for attorneys. Prof. Zacharias was correct that there has been increasing pressure to federalize legal ethics, but that process is occurring not through articulation of national norms but rather through decentralized contextualization of attorney conduct norms. Federal agencies that direct securities practice, immigration, tax, patent, labor and many other areas of federal practice are increasingly supplementing state regulations to specifically regulate the attorneys who appear before their agencies. Targeted substantive federal law and treaty obligations also increasingly apply to attorneys. The effect is to slowly move the center of gravity of attorney regulation toward a complex web of federal regulation in the many areas that involve federal interests. This process offers some important benefits of contextualization and carries some risk, including conflicts between federal and state norms. Our robust experience with federalism provides a mechanism to work through these tensions and differences.

Zacharias’s Prophecy: The Federalization of Legal Ethics Through Legislative, Court, and Agency Regulation

Drawing on the sociological theory of new institutionalism, this essay explores the ethical behavior and decision-making of lawyers by reference to the organizational context in which lawyers work. As the new institutionalism predicts, lawyers develop powerful assimilated informal norms, practices, habits, and customs that sometimes complement and other times supplant formal substantive law on professional conduct. Structural choices in practice settings influence the creation of these informal norms. The challenge for the legal profession, and particularly academics who teach legal ethics, is how to prepare law students and lawyers better to recognize and analyze the norms in their practice setting and to encourage management choices within practice settings that more likely provide norms that enhance rather than degrade ethical decision-making.

Lawyers and the New Institutionalism

As the Catholic Church struggles with the aftermath of the clergy sexual abuse crisis, some have explored the possibility of an ecclesiastical code of professional conduct. Lawyers' long and storied history with professional codes offers a cautionary tale to those exploring an ecclesiastical code of ethics. As priests to our secular religion of law, lawyers are called forth and mandated by a competent authority to function in a defined role, the specifics of which are reflected, in part, in lawyer codes.
As lawyers moved from Canons of Ethics (1908) to a Code of Professional Responsibility (1969) to Rules of Professional Conduct (1983, revised in 2002), the provisions grew more directive. They are designed to assist in the regulation of the profession, which results in provisions that are crafted to define baselines of conduct that justify punishment if the actor falls below that base. The natural tendency of codes is to move toward specificity, with a corresponding danger of losing sight of the fundamental values that drive the code. An ecclesiastical code will face similar pressures.
In addition, lessons from the legal profession suggest other challenges and opportunities of an ecclesiastical code. First, who gets to craft the first draft, quite apart from the complex question of adoption, will reveal much about the goals and likely success of a code. Second, such a code must acknowledge and confront the inherent limitations of all rules: identifying the optimum level of discretion and understanding the role of fact-finding within a code. Third, drafters must understand - as they inevitably do - the necessity of ethical awareness as a precondition for the effectiveness of any code. Fourth, as a code articulates the contours of the role-differentiated behavior of the professional, it must be sufficiently flexible to reflect the challenges of role-differentiated behavior. Finally, and perhaps most importantly, a code of conduct by its nature focuses on the function of the individual professional and can be an awkward, and often ineffective, vehicle for addressing the need for changes in the institutional structures within which the professional functions. Against these challenges sits a huge and incredibly important benefit - education.

Toward an Ecclesiastical Professional Ethic: Lessons from the Legal Profession

Over the last 20 years, a rich body of literature has emerged to describe the increasingly complex system of lawyer regulation in the United States. This article studies the available data from the Code of Judicial Conduct and federal and state court opinions to glean a richer understanding of how judges construct their individual and institutional role in this web of attorney regulation. The picture that emerges from the reported decisions in both state and federal court is a desire to maintain the integrity of the judicial process and a concern for the efficiency and fairness in the proceeding before the court. Concern for the integrity of the legal profession as an independent concern appears to play a lesser role in judges' attitudes, at least as reflected in the reported decisions. There is an obvious connection between the legal profession and the judicial system, but regulating attorney conduct is derivative or secondary to the larger goals of a fair and efficient legal proceeding. This picture of judicial attitudes toward confronting attorney misconduct appears to reflect a seasoned and thoughtful assessment of the institutional capabilities of judges.

Judicial Attitudes Toward Confronting Attorney Misconduct: A View From the Reported Decisions

On paper the state-run lawyer disciplinary system in China serves multiple interests: client protection, maintaining the reputation of the legal profession, upholding the rule of law, and safeguarding the party-state authority. This Article assesses which of these interests dominates in the lawyer disciplinary process by analyzing 122 published lawyer discipline cases from Zhejiang Province from 2007-2015. These records of lawyer discipline evidence an authoritarian political logic of attorney discipline, with punishment most clearly serving to safeguard the Communist Party's rule by keeping lawyers in bounds and tightly tied to their law firms. Subordinate to this are other state interests such as upholding the legal system and rule of law, as well as private interests of protecting firm income. Client protection is a secondary interest at best, with only a handful of cases having clear client-protection goals. The dominance of party-state interests reflects not only the socialist legacy, but also the persistence of an authoritarian legality in contemporary China.

Judith A. McMorrow

Works

Civil Disobedience and the Lawyer's Obligation to the Law

Rule 11 and Federalizing Lawyer Ethics

Law and Lawyers in the U.S.: The Hero-Villain Dichotomy

UK Alternative Business Structures for Legal Practice: Emerging Models and Lessons for the US

Retirement and Worker Choice: Incentives to Retire and the Age Discrimination in Employment Act

The (F)Utility of Rules: Regulating Attorney Conduct in Federal Court Practice

Professional Responsibility in an Uncertain Profession: Legal Ethics in China

Moving from a Brandeis Brief to a Brandeis Law Firm: Challenges and Opportunities for Holistic Legal Services in the United States

Creating Norms of Attorney Conduct in International Tribunals: A Case Study of the ICTY

In Defense of the Business of Law

Creating Norms of Attorney Conduct in International Tribunals: A Case Study of the ICTY

Civil Disobedience and the Lawyer’s Obligation to the Law

Retirement Incentives in the Twenty First Century: The Move Toward Employer Control of the ADEA

Who Owns Rights: Waiving and Settling Private Rights of Action

The Moral Responsibility of the Corporate Lawyer

Life After Law School: On Being a Retired Law Professor

Zacharias’s Prophecy: The Federalization of Legal Ethics Through Legislative, Court, and Agency Regulation

Lawyers and the New Institutionalism

Toward an Ecclesiastical Professional Ethic: Lessons from the Legal Profession

Judicial Attitudes Toward Confronting Attorney Misconduct: A View From the Reported Decisions

Lawyer Discipline in an Authoritarian Regime: Empirical Insights from Zhejiang Province, China

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Works