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Legal Ethics: US and England Compared

The perception of attorneys in the US is dismal. The perception of the legal profession in the US is unfortunately unfavorable in general. A 2007 Gallup Poll looking at “unfavorable attitudes” showed that only advertising executives (58% highly unfavorable) and lobbyists (42% highly unfavorable) fared worse than lawyers (35% highly unfavorable). This is a bleak state of affairs that has not improved in recent years. In 2011 another similar Gallup Poll, which looked at “positive perception” showed similar results concerning the relative ranking of attorneys. Nurses (84% positive) and doctors (70% positive) rated as the most highly admired professionals while Lawyers (19% positive), lobbyists (7% positive), congressmen (7% positive), and car salesmen (7%) positive were at the bottom of the heap.

On the other hand, British barristers not only have a much better track record for reported ethics violations per capita than do US attorneys, but the barristers are also perceived by the public as performing ethically. Why the disparity? The legal system of the US was derived from and grew out of the British legal system (except for Louisiana which is a Civil Law jurisdiction). The traditions are extremely similar. Both employ the same burdens of proof in civil and criminal cases. The rules of evidence are similar. Both legal systems use the jury to decide tried cases. What happened?

Well, there are as many answers as there are experts on the topic, but there are a few points which can be agreed by virtually all parties on this point. 

One thing that helps the barristers maintain a better image is the fact that their relationship to the client is not nearly so close as it is between an American lawyer and his or her client. The distance is maintained by having the solicitor act as a buffer between the barrister and the client. The client does not pay the barrister directly; he pays the solicitor who in turn is supposed to pay the barrister. However, if the solicitor does not pay the barrister the barrister may not sue either the solicitor or the client. At most he can refer the solicitor to a disciplinary board. The solicitor interviews witnesses and passes this information on to the barrister. The barrister does not interview witnesses except for the client and possibly experts. The barrister does, however, appear in court for the client because the barrister has the “right of audience” whereas the solicitor does not (except in certain exceptional instances). These factors contribute to a more detached approach for the barrister and less propensity to do something improper. There is not much we can do about this without a complete overhaul of the US legal system and the creation of two classes – barristers and solicitors. It is not going to happen.

A major problem area is that of the contingent fee. It is a fundamental component of the American legal landscape. It can and does lead to the perception by the public that attorneys are overpaid at the expense of the client. Yes, there are benefits accruing to the client who would be unavailable otherwise, but nevertheless it has a negative impact on public perception of the profession. Such fee arrangements are generally prohibited in English law. Is the contingent fee going to disappear from the American legal landscape? No chance. However, it certainly could be monitored and regulated much more than it is now. This could possibly improve public perception of the legal profession in the US.

Another point, however, about which there is practically unanimous agreement is that the one year "apprenticeship" or "mentoring" process which each barrister must complete. It is extremely effective and beneficial in molding the young barrister into one who will practice law ethically. This is something that certainly could be incorporated into the process of legal education in the US to a much greater extent than it is now. There have been a few very nascent steps in this direction in recent years, but this is a big mistake. We do not need to make some small steps in this direction, we need to make wholesale changes to achieve this fundamental reshaping of legal education in this country. The benefits would be manifold and would enhance the legal profession as well as improving the perception of lawyers by the public at large.

By achieving substantial and sweeping changes in the area of mentoring in the US legal profession, it is very likely that the overall perception of the profession would improve as would actual ethical performance.

By guest contributor Bill Burns, Esq. Originally published on February 22, 2012.

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