Volume 35

The Access and Justice Imperatives of the Rules of Professional Conduct

by Eli Wald

The rules of professional conduct are the backbone of legal ethics. The primary objective of legal ethics, and thus of the rules, is protecting clients, the legal system, the public, and justice. Increasingly, however, the rules fail at protecting the public and advancing justice. The problem does not lie with a particular rule. Rather, the rules are based on antiquated assumptions, which no longer reflect some of the fundamental needs of clients and the public nor the practice realities of lawyers. To fulfill their objective, the rules must address the contemporary needs of clients and the public: they must help address the problem of insufficient access to lawyers for those who cannot afford to pay for legal services, and they must meaningfully address widespread forms of inequality, including gender and racial injustices. The Article explains and rejects the legal profession’s traditional defense of the rules pursuant to which lawyers are three-legged stools who effectively balance the interests of clients, the legal system, and the public. Instead, the Article advances the best possible defense of the rules, an account in which lawyers serve the public by serving clients and advancing the Rule of Law but shows that this account is unsustainable given contemporary practice realities. Prevalent insufficient access to lawyers, changing power dynamics between clients, lawyers, and non-lawyers, and persistent injustices mean that lawyers can no longer credibly claim to indirectly serve the public by serving paying clients. Rather, the rules should be revised to mandate that lawyers increase access to legal services and pursue justice directly. The Article concludes by developing an access and justice-driven agenda for reforming the rules.


Keep Reading

Subscribe to GJLE