Criminal Procedure Entitlements, Professionalism, and Lawyering Norms

Abstract

This article explores how social norms affect lawyers' and judges' behavior and, thereby, the content of both legal entitlements and the practice of ethics. It draws from several large studies of local criminal law practice. Norms in law practice often conflict with legal entitlements. Yet this article argues that such norms are sometimes defensible and necessary responses to tensions in public values and to conflicts between policymaking institutions. Norms often identify a need for doctrinal change, rather than a need for change in practice to conform with doctrine. In other instances, however, norms neither reconcile such conflicts nor devise efficient options to formal rules. Norms sometimes are rent-seeking actions by lawyers and judges. Further, they can be driven by ideological commitments; norms serve personal visions of just outcomes and fair procedures that conflict with public values. Finally, because lawyers observe norms that conflict with formal entitlements - leading them explicitly to disavow or subvert rules - norms reveal how practitioners revise professionalism notions to accord with actions that undermine both client interests and public values. The article suggests ways courts can respond to norms and surveys strategies for reforming undesirable norms.