In honour of Deborah Rhode

Steven and I have been moved by the untimely death of Professor Deborah Rhode. Deborah was one of the giants of legal ethics. She has shown great personal kindness to many legal ethics scholars, and written many great works. As it happens last week we were finalising a chapter on leading works on ethics for a volume being edited by Julian Webb of the University of Melbourne and we had chosen to focus on Deborah’s book, In the Interests of Justice: Reforming the Legal Profession. Here is an excerpt from our draft singling out what we thought makes Deborah’s work so important and so influential on our own…

To our minds, Rhode’s central argument in this wide-ranging leading work is that, for structural and ideological reasons, the professions are flawed repositories of the public interest. Worthy in intent, lawyers (individually and collectively) are hamstrung by context. The size and competitive nature of legal service markets places commercial priorities over social obligation, creating systems that are, ‘far too complex, expensive, and open to abuse.’ The financial isolation of practice and professional status diminishes its values. Expediency trumps moral independence. Notions of professional zeal, borrowed from the specific context of criminal practice, diminish judgement. The adversarial premises of such ethics are, Rhode argues, ill-suited to many practice contexts, not least transactional work. They are also ill-suited to the distribution of legal services: access to justice problems ensure the system is imbalanced against ordinary people. The rich are more valued than the poor, and that imbalance is manifest not just in the inability of ordinary people to access legal services, but in the content of ethical dilemmas themselves:

the clash between lawyers responsibilities as officers of the court and advocates of client interests creates the most fundamental dilemmas of legal ethics. All too often, the bars resolve this conflict by permitting overrepresentation of those who can afford it and underrepresentation of everyone else.

For us, her point means that a profession not properly guarding the public interest is responsible for their clients’ opponents accessing injustice. Ethical rules are, ‘under demanding and under enforced.’ The profession is self-regarding and psychologically blind to the limits of its own position. The health, safety, and financial well-being of opponents and third parties is compromised as a result. Willing blindness can shade into sins of political intervention beyond cases as, Rhode claims, the profession will too often block the advance of public interests where they perceive that they conflict with their own. ‘No occupational group’, as she puts it, ‘however well-intentioned, can make unbiased assessments of the public interest on issues that place its own status and income directly at risk.’

Rhode’s resolutions of these problems cover three main points. The first is that lawyers should accept personal moral responsibility for the consequences of their professional acts, testing their own conduct against, ‘consistent, disinterested, and generalizable foundations’; in particular, there should be, ‘greater practical content for professional values’ that includes an obligation to pursue justice. This involves a recognition that moral objections can trump legal rights particularly where rights cause unnecessary harm or conflict with core values such as honesty, fairness, and good faith. And, fidelity to the idea that zealous pursuit of the client’s interests is paramount is contingent on context. Justice may demand placing less weight on the notion of client’s interests first and last. Rhode’s second response is the equitable and adequate provision of access to legal services for all. The third is, ‘[P]ublic accountability professional for regulation.’ Some oversight of professional regulation is necessary, she says, to, ‘permit more responsiveness to consumer concerns’ and, ‘more specific and more demanding standards.’ In making the case for these responses, Rhode blends together philosophy, psychology, and a sociology of the professions with a heavy sense of the practical importance of access to justice and ethical imbalances, urging Aristoltlean reflection over bright line answers to ethical dilemmas.

In the Interests of Justice was not, of course, Rhode’s first contribution on these matters. She had been thinking about, speaking to, and publishing on these topics for over twenty-five years. Nor of course was Rhode the only scholar interested in these things. But Rhode’s book was, as Bill Simon described it, the “most fully developed expression” of arguments to date about the American legal profession. Austin Sarat said that, “few [works on the profession] are as relentless and powerful”. It seems to us that this book has since become a leading work (cited over 600 times) partly because of the practical proposals for reform that Rhode advances (in response to each and every one of the issues she raises), partly because of the far-reaching ground the text covers (which means that the book appeals to those working on lawyers of various shapes and sizes, and/or on professional ethics and regulation, in various places), and partly because of how Rhode, as Bob Gordon puts it, offers a “detached and diagnostic” account (and so this not a polemic which immediately aggravates its intended readership; no simple task given the forceful moral commitment the book also contains). On this last point, when Rhode later reflected on her book she wrote that, “I have elsewhere been critical of legal academics who write only for each other on issues of public policy in a form that is off-putting to the public”: In the Interests of Justice was explicitly designed to be read by a broad audience and this further adds to its endurance.

This is also, we think, a leading work because of the intractable nature of the problems Rhode surveys. While Sarat pushed back against Rhode and suggested that “[t]he profession should be understood neither as sharing a set of essential attributes nor as being united as a singular tool used to quash the public interest”,what has been so interesting (read: so bleak and depressing) is the consistency with which other studies, spread over the last twenty years and concerned with lawyers doing a variety of work and based in a variety of jurisdictions, have come to the same conclusions as Rhode.

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To Deborah’s family, friends, and colleagues in the US and around the World we offer our sincerest condolences.