Tuesday, September 22, 2009
Anita Bernstein (Brooklyn) has posted Pitfalls Ahead: A Manifesto for the Training of Lawyers on SSRN. Here is the abstract:
Entrants joining the legal profession are entitled to fair warning about what they are getting into. Accounts of lawyers' heroism, triumph, and reformist energy continue to inspire young people to pursue this profession, and they should. But before they represent a client, newcomers need to be informed about pitfalls, the complement to power: how lawyers lose their licenses, face liability for malpractice and breach of fiduciary duty, see their work performance deemed not competent or not "effective" under the Sixth Amendment, struggle against judges, become disqualified from representing particular clients, and forfeit some freedoms of speech and association. Learning about pitfalls enables lawyers not only to protect themselves should they encounter danger, but also to advance what is good for their clients and the public.
This Essay examines lawyers' pitfalls with an eye to their vocational and theoretical interest, gives examples of pitfalls-related teaching and learning strategies already present (but not always visible) in the American legal curriculum, and integrates this perspective with other approaches to lawyers' professional responsibility.