St. Mary's Journal on Legal Malpractice & Ethics

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St. Mary's University School of Law


Robert W. Derner

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Social activism, particularly law reform, has long been an accepted, even revered part of the lawyer’s identity. But modern developments such as nation-wide firms, the economic importance of client development, and aggressive attempts by clients to deploy attorneys as de facto, undisclosed lobbyists have put substantial pressure on the traditional vision of the attorney as a “lawyer-statesman” or someone who “checks clients at the door” when participating in law reform activities. Furthermore, law reform activism on behalf of one client (or prospective client when attorneys use their law reform lobbying as part of their marketing strategy) poses a real danger of injury to other law firm clients who may lose cases influenced by Restatements, Model Acts, Committee Reports or White Papers produced by law reform organizations.

Law reform organizations have paid insufficient attention to the problem of the partisan participant, and the legal profession has failed to sufficiently appreciate the positional and institutional conflicts created when lawyers engage in politico-legal activism on behalf of clients. Both problems undermine the lawyer-statesman ideal and create impermissible positional conflicts of interest disserving clients.

Lobbying surrounding the American Law Institute Restatement of the Law of Liability Insurance (RLLI) exemplifies both problems and the profession’s insufficient response to date. Recognition and appreciation of the problem demonstrates the need for a new regime of increased disclosure (to clients, law reform organizations, and the public), scrutiny, and enforcement of neutrality and conflict norms. If properly observed, a heightened appreciation of the problem would likely require lawyers and firms to decline certain engagements or at least obtain the consent of those potentially adversely affected.