Vol. 15 No.1 (January 2005), pp.22-26
LEGAL ETHICS: A COMPARATIVE STUDY, by Geoffrey C. Hazard, Jr. and Angelo Dondi. Stanford: Stanford University Press, 2004. 368pp. Cloth $60.00. ISBN: 0-8047-4882-9.
Reviewed by Amalia D. Kessler, Stanford Law School. Email: AKessler@law.stanford.edu .
In LEGAL ETHICS: A COMPARATIVE STUDY, Geoffrey C. Hazard, Jr. and Angelo Dondi offer a comprehensive, comparative analysis of the role of lawyers (and the ethical challenges they face) in modern legal systems, including those of the United States, England, Western Europe, Latin America, Japan, China, and the former Soviet Union. They argue that lawyers in the modern world play strikingly similar and fundamental roles in enabling the functioning of the modern, constitutional state—characterized by twin commitments to democratic politics and capitalist economics. Accordingly, they conclude that the code of ethics applicable to lawyers is, and should be, largely the same across legal systems. In this respect, the book would seem to follow from Hazard’s broader professional commitment—through his (and Michele Taruffo’s) work with UNIDROIT (the International Institute for the Unification of Private Law)—to facilitate “globalization” by helping to harmonize legal rules across national systems.
Hazard and Dondi begin with a brief historical overview of legal practice in the West from the Roman era to the present. Concerns about lawyers’ misdeeds, they argue, have been remarkably consistent through time and across societies, giving rise to a set of strikingly universal legal ethical precepts. They suggest, however, that the rise of the modern state and economy in the nineteenth century has changed the nature of legal practice worldwide, in ways that simultaneously pose new problems of legal ethics, while heightening the importance of law and lawyers in the successful operation of social institutions. Modernity, they posit, is characterized throughout the world by two distinctive developments: (1) the enormous expansion of the size and reach of the state and of private business organizations, and (2) the “legalization” of both state and economic activity, such that the legitimacy of all such activity now hinges on whether it has been authorized by formal rule of law. To the extent that states and business organizations are much bigger and more active, and to the extent that they cannot act except as authorized by law, lawyers have become essential to the functioning of society.
Having concluded that these developments are characteristic of modernity the world over, Hazard and Dondi posit that “law practice in all modern regimes will develop inevitably, if only gradually, in the same general direction” (p.54). In so arguing, they dismiss distinctions between the common law and civil law traditions as greatly exaggerated. Lawyers in civil law systems, they suggest, are just as competitive as their Anglo-American [*23] counterparts, and just as willing to use the procedural, and often obstructionist, means necessary to prevail.
The remainder of Hazard’s and Dondi’s book comprises a detailed exploration of what they identify as the five core professional virtues that govern the conduct of lawyers throughout the modern world—competence, independence, loyalty to the client, maintaining client confidentiality, and responsibility to court, colleagues, and public. In examining each of these virtues, the authors note differences between various legal systems, but focus primarily on points of commonality. They observe, moreover, that the means by which these virtues are enforced throughout the world have changed in recent times—and in a remarkably uniform manner. In particular, while legal ethics once consisted of largely informal norms shared by lawyers practicing within small, relatively homogenous communities, the development of modern, more anonymous and bureaucratized societies has resulted in the transformation of these informal norms into formal legal rules. In the authors’ terminology, legal ethics have been subjected, much like state structures and private business organizations, to the modern tendency to “legalize.” This, they suggest, has been a mixed blessing—decreasing the chances that informal norms will be used to ostracize those perceived as different, while weakening the moral force of traditional ethical precepts by suggesting that they are subject to legalistic definition and interpretation.
Hazard’s and Dondi’s comprehensive survey of legal ethics across many of the world’s important legal systems is engaging and valuable and bespeaks a great deal of learning. The authors have persuasively demonstrated that there are, indeed, significant commonalities among these systems. Moreover, they admirably recognize that many issues of legal ethics commonly perceived as contemporary can only be properly understood when placed in historical context. For example, they observe that while the independence of the legal profession appears to be key to the rule of law and thus to modern constitutional government, such independence was actually much easier to justify in the early-modern world of monarchical, non-democratic government. This is because, in that era, numerous social groups—and not just lawyers and other proto-professionals—were endowed with privileges (literally private laws) of self-government. Accordingly, the authors suggest that any theory or practice of legal ethics must start from the premise that, in the modern world, it is no small problem to ensure that lawyers as a group continue to enjoy the self-regulatory powers needed to guarantee their independence, while at the same time assuring that they are subject to the formal, state-enforced rules and regulations, that are now key to legitimacy.
Because Hazard and Dondi survey so many legal systems and emphasize their convergence, they tend, perhaps not surprisingly, to gloss over significant dissimilarities among them. Most notably, as mentioned above, they assert that differences between the common law and civil law traditions have been greatly exaggerated in “American academic circles,” where some have posited a “misleading comparison of an idealized judge-centered system with a [*24] crudely disparaged adversary system” (p.66). In particular, they reject any notion that “American lawyers . . . are improperly hyperaggressive and oblivious of the interests of ‘justice’” (p.288). But, contrary to their suggestion, the academic argument that the American legal system is distinctively adversarial in ways that unnecessarily exacerbate costs and detract from the pursuit of truth does not rest on a claim that American lawyers are inherently unethical. Rather, it rests on the recognition that institutional structures and procedural rules can shape incentives in ways that affect the conduct of lawyers.
Thus, for example, Hazard and Dondi themselves observe that because civil law systems, unlike the American legal system, do not have broad rules of discovery requiring disclosure of relevant documents (even when detrimental to a client’s case), “[t]he pressures on the civil law advocate are correspondingly much less severe than in the American procedure” (p.290). They make this point in an effort to absolve American lawyers of the charge that they have an innate tendency to “conceal ‘smoking gun’ documents in discovery” (p.288). But it is precisely the fact that so much significant responsibility for fact-finding is placed in the hands of American lawyers locked in adversarial struggle, rather than granted to judges, that creates the “pressures” to which the authors refer—pressures to serve clients’ interests and attain victory, at the expense of the truth. It is these sorts of structural pressures that at a systemic level incline the American adversarial system towards overly costly procedure, frequently (though by no means always) deployed to obstruct the truth.
In disputing the unfavorable comparison between the American adversarial system and civil law systems—and, in particular, the claim that in civil-law systems, the judge is empowered to pursue the truth— Hazard and Dondi also downplay significant differences among civil-law systems. They argue that “[t]he judicial viewpoint in civil law systems is that the judges seek to do justice, but only within the framework of the legal controversy as defined by the advocates” (p.66). However, to the extent that the American adversarial system has been subjected to less than glowing comparison with other legal systems, the comparison has not been, as the authors suggest, with “civil law systems” as such. Instead, as they implicitly recognize in citing John Langbein’s article on the “German Advantage,” the comparison has been quite specifically with the German legal system. This is significant in that, as the authors themselves observe, “[i]n some [civil law] systems, notably in France [and] Germany . . . the judge may exercise initiative to develop issues for consideration beyond those preferred by the advocate” (p.67), and to “give strong direction to the proceedings” (p.280). Thus, while there is, as the authors suggest, good reason to doubt that all civil law systems facilitate judicial truth-seeking, the narrower claims that have been advanced on behalf of certain of these systems are perfectly sustainable.
To some extent, the authors’ overemphasis of convergence may follow from the fact that, despite their admirable intention to take “[a]ccount . . . not only of the formally stated ethical [*25] rules but also their practical significance for lawyers” (p.2), the book’s mode of analysis frequently consists largely of juxtaposing the rules from various legal systems. For example, Hazard and Dondi observe that the United States, Canada, Italy, China and Russia all have rules requiring lawyers to represent indigent criminal defendants when a court so requests. Accordingly, they conclude that “receiving legal assistance is the universally recognized right of an indigent criminal accused” (p.249). But it is very hard to know what to make of this universal right, as evidenced by similar legal rules, absent a discussion of such factors as the historical origins of the rule in each legal system, attitudes towards it, how often courts seek to appoint lawyers on this basis, how often lawyers agree to such appointments, and what other institutional mechanisms are available for providing legal services to the indigent. While the authors recognize that legal systems differ in their approaches to providing legal aid and in the quality of such aid, they do not explore these differences at any length. This is understandable in that there may be a necessary trade-off between the wide scale of their survey and the feasibility of looking beyond formal rules. Nonetheless, it is hard not to suspect that, to at least some extent, similarities among formal rules mask deeper differences in institutional structure and cultural practice, and thus to wonder what one ought to conclude from any such similarities.
Hazard’s and Dondi’s tendency to deemphasize differences in service of a narrative of convergence—a narrative in which lawyers are central to enabling democratic political structures and capitalist economies—also seems to serve a latent normative function. In particular, their descriptive account of convergence appears to be motivated in part by an effort to defend the status quo, and especially the American status quo, against criticism perceived as disproportionate and unfair. Thus, they repeatedly refer to the legal reforms advocated by “critics holding tenured positions in the academic world” (p.227) as at best the unrealistic musings of those out of touch with how the world actually works, and at worst the product of “strong antibusiness sentiment” (p.72) or a “hostility to capitalist enterprise that is widely shared in academia” (p.173). Despite the best hopes of such “social idealists,” they conclude, “the connection between wealth and political power and exploitative use of the law” is, to some extent, the inevitable and necessary by-product of any legal system in which lawyers are powerful and independent, as they must be for constitutional government to function (p.232). Along similar lines, the authors express skepticism that universal legal aid will ever become possible and suggest that mediocrity may necessarily be the prevailing standard of legal practice.
None of these claims is unreasonable. Who can dispute that some lawyers will always be tempted to serve the interests of their clients, and their own desire for victory, at the expense of justice, and even the law? Likewise, it would surely not be wise to bet that perfectly adequate, universal legal aid and a high standard of competence throughout the legal profession are likely to emerge in the near future. But the authors’ conclusions that significant change is impossible or highly improbable appear to stem, at least in part, from their [*26] overarching narrative of convergence towards one model of modernity—a model in which the American approach sometimes implicitly, and often expressly, serves as the prototype—and from their effort to defend the American legal system from perceived academic attack.
Without rejecting their very wise skepticism regarding the limits of change and without disputing their conclusion that there is much in our legal system of which we ought to be quite proud, it is possible nonetheless to strike a somewhat different tone, and with perhaps somewhat different results. This would require focusing not on broad comparisons, but instead on particular legal systems—and indeed, on particular, procedural rules, institutional structures, and norms within a particular legal system—in an effort to assess precisely what works and what does not. For example, if as the authors recognize, the French and German systems provide for greater judge-controlled pursuit of fact-finding, then ought we not to consider whether such a judicial role produces cost-savings and a greater likelihood of making truthful assessments of fact? Of course, any such inquiry would be incredibly difficult to conduct. And even were we to conclude that the French and German systems are superior in this respect, the question of transplanting rules and structures from one system into another is very tricky business. Yet, despite the inherent complexity of such questions, they would seem to offer a fruitful avenue for deploying comparative research in service of promoting positive change.
Langbein, John H.. 1985. “The German Advantage in Civil Procedure.” 52 UNIVERSITY OF CHICAGO LAW REVIEW 823-866.
© Copyright 2005 by the author, Amalia D. Kessler.
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