Remus on Out of Practice: The Twenty-First Century Legal Profession

My colleague Dana Remus has posted her article, "Out of Practice: The Twenty-First Century Legal Profession," which is forthcoming in the Duke Law Journal.  Cribbing now from Remus' abstract:

Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the “practice of law” as defined by the profession, they ignore many types of work that today’s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth and twenty-first century social dynamics that are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business.  Within the resulting boundary zone, a growing number of lawyers occupy roles for which legal training is valuable but licensure is not required. I argue that the ambiguity surrounding these roles—regarding what constitutes legal practice, what roles lawyers play, and what professional obligations attach—creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients.  The proliferation of these roles gives rise to key ethical tensions, ignored by existing models of the profession, that threaten to extinguish the profession’s public-facing orientation in favor of its private interests.  I conclude that we cannot effectively understand and regulate the twenty-first century legal profession until we move beyond the rigid constraints of existing models and begin to study the full range of roles and work settings—both in and out of practice—that today’s lawyers occupy.

You may recall that I've blogged about Remus' article "Advocacy Revalued," which is about the role we expect of lawyers in the adversarial system.  As to this article I think it'll resonate with a lot of discussion about lawyers who are working in JD-advantaged jobs, because Remus is interested in how -- if at all -- those people should be regulated by the bar.

If I might share some other good news about this article, it's just received the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility.  In other good news, Norman Spaulding received honorable mention for the Zacharias Prize for "The Privilege of Probity: Forgotten Foundations of the Attorney-Client Privilege," which appeared in volume 26 of the Georgetown Journal of Legal Ethics beginning at page 301.