Lawyers and the New Institutionalism

Abstract

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.