Individual Attorneys Research Articles

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In citizen participation criminal trials, ordinary citizens participate directly in the verdict. Accordingly, procedural adequacy is more strongly required than in ordinary trials. Therefore, state-appointed attorneys appointed in citizen participation criminal trials shall have sufficient competence to perform the aforementioned tasks.
 However, since citizen participation criminal trials are compulsory representation cases, a state-appointed attorney is assigned to a defendant without an attorney. But it is not certain that the state-appointed attorney arbitrarily designated by the court will be able to proceed smoothly in citizen participation criminal trials with the following reasons. First of all, it is difficult for a defendant to determine whether the state-appointed attorney to conduct such trial has the minimum ability even though the defendant is the party who applied for citizen participation criminal trials. Additionally, there is no special benefit even if a state-appointed attorney diligently carries out the case, and the cases and defense techniques of citizen participation criminal trials are held only by individual attorneys so that it is difficult to improve the quality of defense in citizen participation criminal trials over time.
 The current state-appointed counsel system that courts assign cases to attorneys, has its limitations in allowing high-quality attorneys to take charge of citizen participation criminal trials. This is because it is difficult for a state-appointed attorney to be fundamentally independent from the court. Even if these limitations are acknowledged to some extent, there is a great need for the state-appointed attorney to be completely independent of the court in citizen participation criminal trials in which juries participate.
 Therefore, this paper proposes establishment of a dedicated attorney system that conducts only citizen participation criminal trials. Attorneys dedicated to citizen participation criminal trials should belong to a separate organization independent of the courts, and at the very least, they should hold higher job security than the current state-appointed attorneys. In terms of jurisdiction area, it would be reasonable to allow attorneys in charge of citizen participation criminal trials to take nationwide jurisdiction. Other remuneration, treatment, workload, etc. are recommended to be determined by referring to the example of the dedicated state-appointed attorney, but to complement the reverse incentives of the existing state-appointed counsel system, it would be necessary to provide additional benefits to excellent attorneys.

“Listen, Hear my Side, Back Me up”: What Clients Want from Public Defenders

The current study was designed to understand what persons represented by public defenders want from their attorney and how they hope or aspire to interact with their attorney. The results of a thematic analysis of qualitative responses to those inquiries, from 120 people represented by a rural public defender agency, are presented in this article. Though extant literature in this area is scant, the findings here largely echo those prior works: participants articulated a desire for attorneys who effectively communicate, thoroughly investigate, and zealously advocate for them. The data here add nuance, however, to client conceptualizations of those distinct duties, and how clients report they might behave differently with their ideal attorney. Findings also highlight clients’ pronounced “resignation” (Casper 1970) related to systemic deficiencies in public defense and criminal justice systems more broadly, particularly following case disposition—despite overall satisfaction with their individual attorneys. We conclude by discussing implications for practicing attorneys and possible areas of future research.

The Settlement Norm in Audit Legal Disputes: Insights from Prominent Attorneys

ABSTRACTPrior research indicates that most audit legal disputes settle. There is, however, little evidence of the factors that drive the settlement norm and its exceptions in audit legal disputes. To better understand these factors, we rely on theory related to how professionals manage risks and, as a result, how professions defend jurisdictional claims. We use this theoretical lens to help motivate four research questions that we probe by interviewing 27 prominent attorneys experienced in audit litigation. Consistent with our lens, our interview data indicate that attorneys manage their risks, including the risk of reputational loss, by settling based on their expectations of trial verdicts. Unlike trials, settlements simultaneously enable attorneys on both sides to limit costs and avoid catastrophic jury verdicts and, by doing so, claim “wins” for their clients. Attorneys also stress that they settle many audit disputes without any legal filings. Thus, a large subset of disputes is invisible to the public and researchers. Attorneys characterize trials as exceptions to the settlement norm that emerge due to abnormal conditions sometimes present in disputes. However, trial verdicts in these abnormal conditions help attorneys justify the use of settlements to clients, as attorneys stress that by settling they can avoid the dreaded possibility of extreme unfavorable verdicts. We conclude that as individual attorneys manage their risks, especially the risk of reputational loss, their profession maintains its public image and thereby defends its jurisdictional claims. Among the many questions we pose for future research is whether the settlement norm reduces society's ability to monitor the audit profession and, more generally, whether this norm's benefits outweigh its drawbacks.

Transformational leadership and attorneys' performance in law firms

PurposeThis study examines how transformational leadership on the part of senior attorneys in law firms may affect their subordinate attorneys' performance in an industry experiencing both distinctive leadership challenges and widespread economic upheaval. Specifically, our multilevel theoretical model attempts to capture the moderated mediation relationships between transformational leadership, innovative climate, entrepreneurial orientation, and individual performance.Design/methodology/approachThe study employs of a multilevel path analysis to examine the earlier described conceptual model utilizing primary data collected from 484 attorneys at 31 professional service firms.FindingsThe authors used multilevel path analysis to examine the existence and the extent of a multilevel mediation effect. They found that a firm's entrepreneurial orientation mediates the relationship between supervising attorneys' transformational leadership and individual attorneys' performances. The authors also found that the indirect effect of supervising attorneys' transformational leadership on individual attorneys' performances through entrepreneurial orientation is conditional on the degree of firm innovative climate.Originality/valueThe authors draw on theories of social learning to construct a dual-level theoretical model that connects domains within the leadership and entrepreneurship literatures. It does so by examining the relationships between the law firms' supervising attorneys' change-oriented leadership and their subordinate attorneys' billable hours during a period of severe economic disruption.

The Settlement Norm (and Exceptions) in Audit Legal Disputes: Insights from Prominent Attorneys

Prior research indicates that most audit legal disputes settle. There is, however, little evidence of the factors that drive the settlement norm and its exceptions in audit legal disputes. To better understand these factors, we rely on theory related to how professionals manage risks and, as a result, how professions defend jurisdictional claims (e.g., Abbott 1988; Power 2004). We use this theoretical lens to help motivate four research questions that we probe by interviewing 27 prominent attorneys experienced in audit litigation. Consistent with our lens, our interview data indicate that attorneys manage their risks, including the risk of reputational loss, by settling based on their expectations of trial verdicts. Unlike trials, settlements simultaneously enable attorneys on both sides to limit costs and avoid catastrophic jury verdicts and, by doing so, claim “wins” for their clients. Attorneys also stress that they settle many audit disputes without any legal filings. Thus, a large subset of disputes is invisible to the public and researchers. Attorneys characterize trials as exceptions to the settlement norm that emerge due to abnormal conditions sometimes present in disputes. However, trial verdicts in these abnormal conditions help attorneys justify the use of settlements to clients, as attorneys stress that by settling they can avoid the dreaded possibility of extreme unfavorable verdicts. We conclude that as individual attorneys manage their risks, especially the risk of reputational loss, their profession maintains its public image and thereby defends its jurisdictional claims. Among the many questions we pose for future research is whether the settlement norm reduces society’s ability to monitor the audit profession and, more generally, whether this norm’s benefits outweigh its drawbacks.

Behavioral Legal Ethics

Complaints about lawyers’ ethics are commonplace. While it is surely the case that some attorneys deliberately choose to engage in misconduct, psychological research suggests a more complex story. Iit is not only “bad apples” who are unethical. Instead, ethical lapses can occur more easily and less intentionally than we might imagine. In this paper, we examine the ethical “blind spots,” slippery slopes, and “ethical fading” that may lead good people to behave badly. We then explore specific aspects of legal practice that can present particularly difficult challenges for lawyers given the nature of behavioral ethics - complex and ambiguous ethical rules and standards, agency relationships, the ethos of the adversarial system, the financial and temporal pressures of modern legal practice, positions or feelings of relative status or power, and cues or pressure from others. The psychology we present provides substantial insight into why attorneys sometimes behave unethically, why attorneys may have difficulty curbing or reporting the unethical conduct of their clients or fellow attorneys, and why it is often difficult for attorneys to see and learn from their own ethical missteps and the missteps of others. At the same time, the psychological research also provides insight into why attorneys are often able to resist substantial pressure to act unethically. We draw on the psychological research to make suggestions for how individual attorneys and legal employers can enhance their approach to ethics.

Final Report - Identification, Development and Validation of Predictors for Successful Lawyering

For years, American law schools have placed very substantial weight on applicants' LSAT scores when making admission decisions. As applicant volume and the perceived importance of law school rankings have grown, that emphasis has intensified. Only a small fraction of graduates of law schools become academics, but more than either other professional or academic graduate schools, law schools rely mainly on cognitive and academic indicators to choose among applicants and predict their success in law school. The unresearched question, however, is whether the prediction of lawyering effectiveness should play a role in schools' choices among qualified applicants. This exploratory empirical study sought to answer that question. Funded in large part by the Law School Admission Council, nine years of research are reported in this working paper. The research plan involved three phases. Phase I investigated what lawyers thought were the characteristics of effective lawyers. Twenty-six Effectiveness Factors were extracted from multiple rounds of interviews and focus groups with Berkeley alumni, faculty, students, judges and clients, who represented a wide range of practice settings and specialties. These 26 include not simply analysis and reasoning but also such factors as negotiation, advocacy, stress management, practical judgment, problem solving and other dimensions. The interviews and focus groups generated approximately 715 examples of behavior to illustrate different levels of effectiveness for each of the factors. In an internet survey, more than 2000 Berkeley alumni rated the effectiveness of the examples on a scale that ranged from poor to excellent. Results of the survey, which took into account agreement among respondents, yielded 26 Effectiveness Factor scales that would allow evaluation of individual attorneys' performance. Phase II of the research examined a range of existing tests and test methods, eventually selecting nine types of tests that we hypothesized might predict effectiveness in the 26 identified factors. We used some off the shelf tests, adapted others and wrote items from scratch for others. In Phase III, Berkeley alumni were recruited as test subjects to take a compilation of the chosen tests, which were administered online and took about 2 hours to complete. Subjects also gave consent for researchers to access their UGPA, LSAT scores, and LSGPA. In addition, they identified two supervisors and two peers, as well as themselves, to evaluate their current work effectiveness using the relevant subset of rating scales developed in Phase I. Eleven hundred alumni volunteers participated, two-thirds from Berkeley Law and about one third from Hastings College of the Law. More than 4000 performance appraisals were submitted online. Results revealed the following: 1) A number of the new tests were predictive of lawyer performance on most of the 26 Effectiveness Factors. The LSAT and Index Scores were not particularly predictive of lawyering performance except on the several most cognitively oriented factors among the 26. 2) The new tests were no more predictive of first year law grades than the currently used Index Score but the sample replicated the results typical of the predictive power of the Index Score. 3). Performance on the new tests did not show significant differences between race and gender sub-groups, although it is widely recognized that existing LSAT and Index scores create substantial adverse impact. 4) The Report strongly recommends that this exploratory research be carried forward through conduct of a national validation study such that these methods could potentially be added to existing methods of applicant assessment.

The advertising of legal services: A comparison of the perceptions of attorneys and of the public

Practitioners in the so-called classical professions are increasingly facing competition from non-professionals in what, traditionally, was accepted as 'their' business domains. Non-professionals are, however, not hamstrung by restrictive professional association regulations to the same degree as professionals. Such regulations have limited professionals in their efforts to counteract the 'invasion' of their traditional markets. One such regulation prohibits professionals from advertising. Attorneys in particular have been affected by increased competition in their markets and have questioned the legitimacy of the prohibition on advertising. The issue of advertising has been addressed by both provincial law societies and the Association of Law Societies, but no firm decision has as yet been taken. One concern among attorneys is the possible reaction of the public to advertising by individual attorneys. In this article an attempt is made to shed some light on the issue, by comparing practising attorneys' perceptions of the implications of legal services advertising with those of members of the public. It is suggested that attorneys and members of the public differ significantly in their perceptions of the implications of legal service advertising. Significant differences exist between the two groups in respect of 36 of the 69 aspects investigated.

Lawyers, Clients, and Professional Regulation

The legal profession is currently the subject of controversy and criticism. Individual attorneys are often described as unethical and incompetent, while the bar is portrayed as politically partisan, captive of economic interests, and unresponsive to the public interest. Public opinion polls document disrespect for attorneys as a group. Local and national scandals highlight criminal acts of prominent attorneys. The cost, quality, and availability of legal services are matters of public debate.

Lawyers, Clients, and Professional Regulation

The legal profession is currently the subject of controversy and criticism. Individual attorneys are often described as unethical and incompetent, while the bar is portrayed as politically partisan, captive of economic interests, and unresponsive to the public interest. Public opinion polls document disrespect for attorneys as a group. Local and national scandals highlight criminal acts of prominent attorneys. The cost, quality, and availability of legal services are matters of public debate.