A century ago the legal realists declared that the real law is the law in action, not just the law in books.
They urged us to think things, not words, and placed their faith in the power of the still youthful social sciences to think legal things accurately and rigorously. In legal ethics, I think most scholars would agree on the single biggest discrepancy between the law in books - the profession’s ethics codes - and the law in action.
The ethics codes are almost entirely individualist in their focus. They treat lawyers (clients, too, for that matter) largely as self-contained decision-makers flying solo. In fact, however, lawyers increasingly work in and for organizations. While most lawyers continue to practice in small firms, and sole practitioners still form the largest single demographic slice of the profession, the trend is toward organizational practice. The largest law firms and corporate legal departments have more than a thousand lawyers, and the biggest firms in the country three decades ago would not make this year’s top hundred.The importance of these trends for legal ethics can hardly be exaggerated. Psychologists, organization theorists, and economists all know that the dynamics of individual decision-making change dramatically when the individual works in an organizational setting. Loyalties become tangled, and personal responsibility diffused. Bucks are passed, and guilty knowledge bypassed. Chains of command not only tie people’s hands, they fetter their minds and consciences as well. Reinhold Niebuhr titled one of his books Moral Man, Immoral Society, and for students of ethics no topic is more important than understanding whatever truth this title contains.
My own students, I might add, think about it without any prompting. No dilemma in the ethics class causes them more anxiety than the prospect of being pressured by their boss to do something wrong. Not only do they worry about losing their jobs if they defy the boss to do the right thing, they also fear that the pressures of the situation might undermine their ability to know what the right thing is.