By Melissa Mortazavi. Full text here.
The Article argues that practical labor issues and ethical issues are inherently intertwined in the legal profession. Despite the widespread acknowledgment that there is an underlying tension between how private practice is conducted and the values lawyers hold, the issue of how to remedy modern legal practice ethically is misunderstood and often analyzed on a rule-by-rule or individualized basis. This approach misclassifies the core of this problem as resting in individual action. As a result, it impedes meaningful creative problem-solving. Instead, the Article applies the framework of new institutionalism—widely and fruitfully used in the sociological and economic literature—to legal practice and legal ethics.
Applying this theory reveals that the ethical crisis at the heart of the current private practice system is an institutional and systemic flaw, rather than one in the purview of any one individual, bar association, or even firm. The inevitable tension between the conscious acts—or inaction—of individual lawyers and the institutional norms of private practice that facilitate unethical behavior have led to an ethical crisis. Understood institutionally, one can begin to craft meaningful and workable solutions to restore a sense of professionalism, agency, and integrity to the legal workplace. The question changes from, “how can individual lawyers act ethically,” to “how do lawyers change the institution itself to compel ethical behavior?”
The Article argues that only a structural change in firm institutions, a seismic shift, can reorder the legal workplace to being one conducive to professionally responsible practice. Past solutions, such as piecemeal amendments to the Model Code of Professional Responsibility, or relying on firms and individuals to self-police, are ineffective. Similarly, banishing the billable hour is neither pragmatic nor likely. Agreements between lawyers regarding pay are antitrust violations. Labor discussions between individual lawyers and their firms reflect extreme leverage inequalities, lack enforceability, and are subject to client and economic pressures to be competitive with other firms. As such, the Article proposes the only remaining alternative: private-sector attorneys should unionize, not only to change their own lives and working conditions, but also to uphold their ethical obligations as lawyers.