University of Denver Sturm College of Law - SSRN papers

University of Denver Sturm College of Law Legal Research Paper Series Working Paper No. 08-18

Notes from Tsinghua: Law and Legal Ethics in Contemporary China Eli Wald

University of Denver Sturm College of Law

This paper can be downloaded without charge from the Social Science Research Network Electronic Paper Collection Original Paper Abstract ID: http://ssrn.com/abstract=1183682

Electronic copy available at: http://ssrn.com/abstract=1183682

NOTES FROM TSINGHUA: LAW AND LEGAL ETHICS IN CONTEMPORARY CHINA Eli Wald

*

ABSTRACT This article contributes to the expanding body of literature studying Chinese law and the Chinese legal profession by exploring Chinese legal ethics from the unique perspective of a legal ethics professor in China. Based on the vast differences between Chinese and American law in general, and between Chinese and American legal ethics in particular, one may expect to find that Chinese law students differ from American law students in significant, ideological and explicit ways. This article argues, however, that differences between Chinese and American law students emerge in subtle and implicit details: methods of reasoning and arguing; habits of learning and of teaching; and ways of communicating and interacting. It explores aspects of the typical Chinese approach to law study and some specific aspects of professional responsibility issues as framed by Chinese students. Moreover, this article shows how the experience of teaching a familiar subject in an unfamiliar setting can bring a person’s typical teaching methods into clearer view.

* Assistant Professor of Law, University of Denver Sturm College of Law and Visiting Assistant Professor of Law, Tsinghua School of Law and Temple University Beasley School of Law. I thank Richard Abel, Arthur Best, Marc Galanter, Bryant Garth, W. William Hodes, Tarry Mahony, Carrie Menkel-Meadow, Russell Pearce, John Smagula, Allen Snyder, Frank Upham and David Wilkins for their insightful comments and Diane Burkhardt, Chelsea Koch and Bryce Ilvonen for their research assistance. 369


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INTRODUCTION When a colleague learned that I was going to teach a legal ethics class at the Tsinghua School of Law in Beijing, he suggested I keep a journal to chronicle the experience. Intuitively, the idea made sense to me, as teaching in China sounded exciting and different, and thus worthy of recording. Moreover, the suggestion was made while I was reading Amy Tan’s Saving Fish from Drowning. Depicting Wendy Brookhyser, Tan masterfully ridicules Western, clueless arm-chair scholars, their ill-informed, romanticized assumptions about Asia, and their presumptions about the roles they might play there. Keeping a journal, in addition to educating myself about Chinese legal ethics and Chinese legal education, would, I hoped, help me avoid Brookhyser’s follies and make the teaching and learning experience more worthwhile. Teaching legal ethics in Beijing, I expected to learn that Chinese law students differ from American law students in big, ideological and explicit ways. Instead I found that differences between Chinese and American law students emerged in subtle and implicit details: methods of reasoning and arguing; habits of learning and of teaching; ways of communicating and interacting. This article explores aspects of the typical Chinese approach to law study and some specific characteristics of professional responsibility issues as framed by Chinese students. Moreover, and unexpectedly, teaching Chinese law students also taught me many lessons about American legal education. Keeping the journal made me realize that one need not embark on a trip to China to fall into the trap of making assumptions about one’s students and role in the classroom. If we do not continuously reexamine our assumptions about our students, and communicate with our students rather than impute their learning styles and goals, we risk being pedagogically futile and, like Amy Brookhyser, achieve little more than saving fish from drowning. The article is organized as follows: Part I summarizes the two categories of ideas developed in the journal – the differences between Chinese and American law students and their impact on teaching, and the lessons learned from teaching in China about American legal education. Part II is the journal chronicling my spring 2007 visit at Tsinghua contemporaneously taken while teaching the class, unedited with regard to content and supplemented only by footnotes. Part III offers a short conclusion.


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I. LESSONS FROM TEACHING LEGAL ETHICS IN CHINA A. Some Differences between Chinese and American Law Students

1. Law in a black-letter box Chinese law students are much more interested in black-letter law than their American counterparts, their interpretation is more committed to the text, and their construction is more consciously limited by it. My impression is that Chinese students do not give up on black-letter law as easily as American students and are not as accepting of arguments regarding the presumed intention of the law, its spirit and its underlying policy considerations. At first, I took a cynical view of this loyalty to black-letter law. Many American law professors, like many American lawyers, are Realists in the sense that we believe that sooner or later black-letter law runs out.1 We expect, at some point, to move to the “next level” of construction, beyond the textual, although we differ as to our understandings of what the next level is, ranging from critical construction to efficiency analysis, from outright policy analysis to Originalism.2 Legal interpretation that starts and ends with black-letter law seems to many, and initially seemed to me when I thought I was encountering it in the classroom, naïve. Chinese law students and lawyers, however, are far from naïve. Possibly their commitment to black-letter law is explained in terms of their limited role. Once they as lawyers concede black-letter law runs out, their work is done and the legislature takes over. Thus refusing to give up on black-letter law is in fact a savvy political reaction to their relative limited role vis-à-vis the legislature. Or perhaps their commitment is grounded in normative Formalism, the belief that black-letter law is a self-contained body of knowledge which if accurately designed never runs out.3 Importantly, and regardless of the reasons for it, commitment to black-letter law has allowed Chinese lawyers to master textual construction skills that are nearly a lost art for American lawyers. In a sense, Chinese lawyers of the twentyfirst century resemble American lawyers of centuries past, masters of the written

1. See generally AMERICAN LEGAL REALISM (William W. Fisher III et al. eds., Oxford University Press 1993); MORTON J. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW 1870-1960 THE CRISIS OF LEGAL ORTHODOXY 9-31 (Oxford University Press 1992); see Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 516 (1988). 2. See generally THE CANON OF AMERICAN LEGAL THOUGHT 4 (David Kennedy & William W. Fisher III eds., Princeton University Press 2006). 3. See, e.g., CHRISTOPHER C. LANGDELL, A SELECTION OF CASES ON THE LAW OF CONTRACTS WITH A SUMMARY OF THE TOPICS COVERED BY THE CASES, Preface (2nd ed., Little, Brown 1879); JOSEPH H. BEALE, SELECTIONS FROM A TREATISE ON THE CONFLICT OF LAWS §§ 3.2, 3.4, 4.12 (Baker, Voorhis & Co. 1935), available at http://www.constitution.org/cmt/jhb/conflict_laws.htm; 2 MAX WEBER, The Categories of Legal Thought, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 657-58 (Guenther Roth & Claus Wittich eds., 1978).

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word. No doubt, a textual construction that does not resort to the spirit of the law, let alone to its goals and underlying policy considerations, can not achieve the same outcomes as an interpretation that is so informed. And yet, Chinese lawyers precisely because of their proficiency and mastery of textual construction are able to achieve a lot within their black-letter domain, and do within it some of the legal work American lawyers do at the “next levels” of construction. In so far as policy work is disguising itself as black-letter interpretation, the work is somewhat manipulative.4 Nonetheless, there is great skill and value in hard, good oldfashioned black-letter law work, which American lawyers have somewhat neglected over the past century. It is therefore a mistake to dismiss too easily the preoccupation of Chinese lawyers with black-letter law as naïve and limited in scope. Such characterizations risk understating and missing complex legal work being done by Chinese attorneys. Moreover, there is a danger, as a law professor, in lecturing to Chinese students about the virtues of the “next levels” of interpretation without paying close enough attention to the work being done within the black-letter box. It is similarly a mistake to give up too easily on black-letter law back home. Such mastery of textual construction by Chinese lawyers reminded me that textual construction is a lost art, a valuable skill that ought not to be diminished by law professors who are eager to reach the “next levels” of analysis. 2. Big principles v. small rules The commitment of Chinese law students to black-letter law also informs their understanding and characterization of legal problems. Whereas American students tend to be more comfortable with general and abstract formulations and propositions, Chinese students better address narrow, specific and detailed legal questions. For example, while many Chinese students had a hard time coming to terms with an abstract discussion about increased lawyer mobility as a feature of modern law practice, they understood well the practical difference between allowing and disallowing clients to give informed consent and waive a conflict of interest created by a lateral move, as well as the consequences of allowing a law firm to erect an ethical wall around a moving attorney. Similarly, while many Chinese students resisted a general cost-benefit analysis of confidentiality, they nonetheless saw with great clarity the specific advantages and disadvantages to the client, the lawyer and society from confidentiality in a particular set of circumstances. Their American counterparts typically are more at ease with the principles of cost-benefit analysis but often experience difficulty with appreciating the detailed application of the principles in practice, in this case the impact of confidentiality on clients, lawyers and society.

4. Disguising policy analysis in so-called “textual construction” is by no means limited to Chinese lawyers. Indeed, some might say it is a common pastime for American judges to both engage in disguised policy analysis and to deny doing so while accusing others of judicial activism.

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To be sure, the point is not simply that one looking for, and looking to impress upon Chinese and American students, striking, general, abstract differences between American and Chinese law might find the experience frustrating. Rather, it is that both in China and at home, different students experience and understand legal problems differently. While it might be true that Chinese students’ commitment to black-letter law and relative resistance to general policy analysis makes Chinese law students appear less likely to appreciate the complexities of abstract legal analysis per se, their command of black-letter law gives them an advantage in construing detailed statutes and case law. Similarly, while the familiarity of American students with big principles allows abstract and theoretical discussions in the classroom, this strength might conceal a relative weakness in terms of understanding and applying rules in context. Teaching in China served as a powerful reminder of the need to accommodate and utilize multiple avenues of reasoning and explanation in the classroom given students’ varying styles of learning. 3. Lofty ideology v. gray application: recognizing the role of discretion Preparing to teach the course, I anticipated profound ideological differences to emerge between American and Chinese students on issues such as the independence of the bar and the judiciary, zealous loyalty to clients versus loyalty to country and the government, and the provision of legal services to those who cannot afford to pay for them. Surprisingly, no such ideological differences emerged. Instead, a key teaching challenge was to have my Chinese students explicitly recognize and acknowledge the sometimes hidden ideological component of legal doctrine. For example, the students accepted broad confidentiality and avoidance of conflicts of interest matter-of-factly and were not inclined to debate whether the doctrines, respectively, increase client autonomy and facilitate lawyer loyalty to clients. Of course, the difficulty could have stemmed not from the failure of the students to see the ideological commitments of the law but rather from their reluctance to discuss them publicly. The challenge was particularly acute in situations that explicitly call upon lawyers to exercise their professional discretion and thus allow them to commit themselves to underlying ideologies. To be clear, the issue was not the “ad hocish” nature of the students’ exercise of discretion and their refusal to commit themselves to a particular ideology. In fact, a conscious insistence on trying to act in good faith in the best interests of clients regardless of possible ideological inconsistencies is a coherent ideology in-and-of-itself. The problem was the students’ reluctance to recognize or publicly acknowledge the possibility of, and the role of, competing ideologies when exercising their discretion.

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4. Culture is in the details Rather than only in form or content, profound differences between Chinese and American law students and between Chinese and American law came to life in the details and contexts of legal problems and their proposed solutions. The differences were far less ideological than I had expected and far more nuanced, concrete, and time and context-dependent. For example, exploring a case involving a conflict of interest problem faced by a partner at a large American law firm in the mid 1980s,5 the cardinal importance of shared social, economic, and cultural assumptions and background suddenly became evident in class. The students had a hard time understanding not the narrow legal issue presented in the case but rather the context in which it transpired. We spent a significant amount of time discussing the rise of the large law firm, the culture of the firm, the corporate economic conditions in the United States in the mid 1980s, the identity of large law firm partners at the time, the importance and consequences of status within such firms, the identity and power exercised by large corporate clients over law firms, etc., considerations without which it was hard to understand the conduct of the attorney in question and the outcome of the case. Clearly, American law students also have varying degrees of knowledge and exposure regarding such considerations. Nonetheless, as a group, they are more familiar, if only intuitively, with the social, economic and cultural factors back home. Teaching students who do not share our cultural background, I was driven to defend assumptions about the law that are rarely questioned back home. More importantly, I became keenly aware of the deep nexus between law and culture and the near meaninglessness of law outside of its cultural context. Moreover, differences in cultural details inform not only the form and content of legal problems, as well as the ability to understand their context, but also pedagogical approaches in the classroom. Back home I employ an array of teaching techniques intended to reinforce and empower student participation. For example, when a student makes a positive contribution, I turn back to the student later in the same session or in subsequent classes when a similar point or issue presents itself, both to acknowledge the student’s participation and contribution publicly and to reward the student with an easy opportunity to participate again. I discovered that this technique does not work as well in China. Some Chinese students prepare thoroughly, often writing up their comments, before speaking up in class. Calling on them unexpectedly deprives them of the opportunity to prepare and burdens them with having to recall their own past contributions. The result is not merely failure to empower but also the creation of stress and possible

5. See United States v. Gellene, 182 F.3d 578, 582 (7th Cir. 1999); MILTON C. REGAN JR., EAT WHAT YOU KILL (University of Michigan Press 2006) (situating John Gellene’s story in the context of practice in the competitive, high stakes arena of the large law firm). See infra p. 400 (“Monday, March 26, 2007, shortly after class #7”).

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humiliation. The different cultural details required the adoption of different teaching techniques than the ones utilized effectively back home. Once again, the point is not only that significant differences between Chinese and American law and between Chinese and American law students are “hidden” in the details rather than in explicit, general, ideological statements. Rather, while the impact of different backgrounds and assumptions about the rule and role of law and the role of lawyers may be easier to notice when an American law professor is teaching a legal ethics course in Beijing, a similar gap in understanding and meeting the expectations of students about the law might very well exist between an American law professor and an increasingly diverse group of American law students back home. B. Chinese Inspired Insights about the American Classroom

1. Stereotypical expectations v. classroom realities Somewhat surprisingly, one challenge in my Chinese classroom turned out to be not overcoming external academic censorship, but rather rising above my own stereotypes, and teaching effectively a group of students who did not share my fundamental assumptions about the law, nor my expectations of what it means to “think like a lawyer” or “think like a law student.” The real danger was not outside interference, it was failing internally to realize, and thereafter successfully bridge, the gap in expectations between the students and myself. While the danger of ineffective communication and the challenge of managing expectations as a condition of effective teaching might seem more apparent, perhaps even more acute, between an American law professor and Chinese law students, it is by no means unique to this context. To the contrary, the challenge is inherent in every teaching experience. As I read and reread my own notes, it occurred to me that my journal was as much about the teaching of law in China as it was about the teaching of law generally, and that the value of the notes might rest in capturing my attempts, explicit and implicit, to revise my expectations, react to and interact with the students, and teach an effective class. To the extent that I came to China with a subconscious elitist notion of my role as an American law professor who was going to lecture about how to better understand and practice law,6 and as so far as I arrived at Tsinghua with an ill-

6. Preparing and researching for teaching at Tsinghua, I tried to learn from the experience of past generations of American law teachers overseas. Seminal studies on the subject include JAMES A. GARDNER, LEGAL IMPERIALISM: AMERICAN LAWYERS AND FOREIGN AID IN LATIN AMERICA (University of Wisconsin Press 1980); LAWYERS IN THE THIRD WORLD: COMPARATIVE AND DEVELOPMENTAL PERSPECTIVES (C. J. Dias, et al. eds., Scandinavian Institute of African Studies 1981); THE NEW LAW AND ECONOMIC DEVELOPMENT (David M. Trubek, et al eds., Cambridge University Press 2006). It should be noted China is often excluded from such studies. See, e.g., David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 WIS. L. REV. 1062, 1062 n.1 (“We include all of Latin

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informed set of expectations about the differences between teaching law in the United States and China, noticing and working to overcome these expectations was manageable with the help of a proactive and passionate group of students. And yet, inherent in every teaching experience and in the role of a law professor is the formation of expectations about teaching, classes and one’s students. Indeed, the adoption of some stereotypical expectations about teaching is inevitable. Overcoming these stereotypical expectations, however, a precondition for successfully communicating with one’s students and for effective teaching might not be as easy to accomplish at home where one might be tempted to assume that students generally share similar backgrounds and values. I hope these notes will serve as a reminder of the illusive nature and demanding extent of the task of reevaluating and re-discovering the preconceived notions we all develop, and reexamining our classroom expectations. 2. Hard and easy cases, core and edges American legal education is comfortable focusing its attention on hard cases,7 and is secure enough in its fundamentals that it does not shy away from challenging some aspects of the law. In the first year of law school we teach almost exclusively hard appellate cases. We do not fear that our students might lose faith in the law and end up believing the law is hopelessly ambiguous and hard.8 In upper classes we teach, for example, flag burning cases without fear of undermining the First Amendment. In Legal Profession we often criticize the rules of professional conduct and lawyers and do not worry that these critiques will lead to diminished self-regulation and loss of professional independence. In other words, we do not hesitate as teachers to emphasize the hard cases over the easy ones, the edges over the core of law, because even if we question the content of the core we do not question its stability. These seemingly obvious choices are not as easy to make teaching legal ethics in China. Teaching confidentiality in the United States, I spend as much time questioning confidentiality and probing its edges as I do establishing its core because confidentiality is an intuitive concept for my students and a secure

America, Africa, and Asia except for Japan and China. China, like parts of Eastern Europe, is excluded from our focus for historical as much as analytical reasons.”). A notable exception is Roscoe Pound, Progress of the Law in China, 23 WASH. L. REV. & ST. B. J. 345 (1948), although Pound’s observations, of course, predate the People’s Republic of China. See, Roscoe Pound, The Chinese Civil Code in Action, 29 TUL. L. REV. 277, 277 (1955) (“This article was written… in 1948. Since that time, of course, the government of China discussed in this article has been replaced by the present Communist rule.”). 7. See, e.g., GUIDO CALABRESI & PHILIP BOBBITT, TRAGIC CHOICES 17 (Norton 1978); see Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1057 (1975). 8. Although maybe we should fear more the consequences of disillusioning our students at law schools. See, e.g., Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 VAND. L. REV. 871, 872 (1999).

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doctrine.9 I very much hesitated to take the same approach at Tsinghua because I feared that too much emphasis on the trees might cause the students to altogether miss the confidentiality forest. Similarly, introducing cutting edge case law discussing the erosion of the requirement of privity as a condition-precedent in malpractice lawsuits seemed counterproductive if part of my pedagogical goal was to establish the notion of the attorney-client relationship and the basic notions of privity and an attorney’s duty to clients.10 And yet I felt at times as if I was being academically dishonest with my students. Teaching the draconian imputation of conflicts of interest rules without mentioning to the class that many states have recently expanded the notion of permitted ethical screens thereby relaxing their imputation rules seemed a bit manipulative.11 I convinced myself that the exercise is no different from how we “hide the ball” from our students in first year of law school, and that in fact, it is nearly impossible to criticize and challenge without first establishing a baseline or a framework of analysis. And yet, it was surprisingly hard to build with my Chinese students, in good faith, doctrinal bridges that we long ago crossed in the United States, not to mention bridges that we criticized, burned and replaced with new doctrines. The experience made me more conscious and more cautious of the choices I make in selecting and emphasizing materials in the classroom. 3. To China and back: rediscovering legal imagination Critical legal scholars have taught us all that every once in a while it is a good idea to revisit our categorizations and conventions, to “shake up” our systems and question their fundamentals,12 and that the status quo freezes and dries up legal imagination.13 Rediscovering and expanding the limits of legal imagination,

9. See, e.g., Daniel R. Fischel, Lawyers and Confidentiality, 65 U. CHI. L. REV. 1, 2 (1998) (arguing that confidentiality serves the interests of lawyers and may not serve the interests of clients and society); William H. Simon, The Confidentiality Fetish, THE ATLANTIC MONTHLY, Dec. 2004, at 113. 10. See, e.g., Biakanja v. Irving, 320 P.2d 16, 18 (1958) (discussing the erosion of the requirement of privity). 11. Eli Wald, Lawyer Mobility and Legal Ethics: Resolving the Tension Between Confidentiality Requirements and Contemporary Lawyers’ Career Paths, 31 J. LEGAL PROF. 199, 263 (2007). Several jurisdictions have recently moved to adopt a screening rule that allows a new law firm to hire and screen a moving attorney tainted by a conflict of interest. Id. 12. Influential critical writers include Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685 (1976); ROBERTO MANGABEIRA UNGER, THE CRITICAL LEGAL STUDIES MOVEMENT (Harvard University Press, 1986). See generally MARK KELMAN, A GUIDE TO CRITICAL LEGAL STUDIES (Harvard University Press 1987). See also, Marc Galanter, Why the ‘Haves’ Come out Ahead: Speculations on the Limits of Legal Change, 9 LAW & SOC’Y REV. 95 (1974) (pioneering “law and sociology” scholarship challenging conventional assumptions and thinking about the adversary system). 13. On the tense relationship between status quo and legal imagination see for example Peter Margulies, Progressive Lawyering and Lost Traditions, 73 TEX. L. REV. 1139 (1995) (arguing that Anthony Kronman’s lament in THE LOST LAWYER (Harvard University Press 1993) over the decline of practical wisdom and his embrace of traditional lawyering risks suffocating innovation in the practice of law). See also RICHARD A. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY 185-211

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however, is easier said than done. Teaching legal ethics at Tsinghua provided me with an opportunity to do so because I was driven to re-examine some basic assumptions not often questioned by American students both about the law of professional responsibility and about teaching. Long after I decided to omit Charles Fried’s Lawyer as a Friend from the readings for my Legal Profession class because I found it to be anachronistic in contemporary practice realities,14 I discovered in China a legal community in which the concept of the lawyer as friend is taken very seriously. The concept is, of course, both in China and in the United States, not free of criticisms and challenges. And yet the lawyer as a friend is alive in China as a viable idea, as an ideal, and as an aspiration. Therefore, I am now committed to reintroducing it in my Legal Profession class back home, if only to challenge the emerging status quo regarding lawyers as service providers and business persons.15 Unlike American law,16 Chinese law generally does not allow waiver of a conflict of interest.17 If a concurrent conflict of interests exists, the tainted lawyer has to withdraw and informed client consent does not cure the defect.18 Whether such a draconian rule is good law is beside the point. Rather, the Chinese rule reminded me of the underlying rationale for conflict of interest rules in general – loyalty to clients. The American legal profession is so busy catering to the rise of commercialism that it continuously relaxes conflict rules to accommodate increased lawyer mobility without stopping to re-imagine a different more clientcentric conflicts rule.19 Regardless of whether recognizing ethical walls to accommodate increased lawyer mobility is desirable, the Chinese insistence on client loyalty and refusal to allow waivers, while somewhat radical, is simply an idea that is outside the imagination of contemporary American legal ethics. It should not be.

(Harvard University Press 1999) (asserting that traditional professional mystique stands in the way of effective client service). 14. Charles Fried, The Lawyer as a Friend: The Moral Foundations of the Lawyer-Client Relation, 85 YALE L.J. 1060 (1976). 15. See Russell G. Pearce, The Professionalism Paradigm Shift: Why Discarding Professional Ideology will Improve the Conduct and Reputation of the Bar, 70 N.Y.U. L. REV. 1229 (1995) [hereinafter Pearce, The Professionalism Paradigm Shift] ; POSNER, supra note 13, at 185-211. See also Louis D. Brandeis, The Opportunity in the Law, 39 AM. L. REV. 555 (1905). 16. MODEL RULES OF PROF’L CONDUCT R. 1.7(b)(4), 1.9(a) (2007). 17. [Law of the People’s Republic of China on Lawyers], at art. 34 (2001), available at http://www.lawinfochina.com/law/display.asp?db=1&id=2829 (last visited Mar. 20, 2008). 18. Id. 19. Wald, Lawyer Mobility and Legal Ethics, supra note 11, at 277; see Susan P. Shapiro, Bushwhacking the Ethical Highroad: Conflict of Interest in the Practice of Law and Real Life, 28 L. & SOC. INQUIRY 87 (2003).

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II. THE TSINGHUA NOTES20 Wednesday, March 7, 2007, hours before class #1 My first class teaching Professional Responsibility: the U.S. Legal Profession at Tsinghua University School of Law in Beijing, China, is a few hours away. Tsinghua University is one of the premier universities in China. Its law school, founded in 1925, closed its doors in 1952, and reopened in 1995. In 1999, Temple became the first foreign university approved by the Chinese government to offer a foreign law degree program in China, when the Temple University Beasley School of Law collaborated with Tsinghua University School of Law to offer a Masters of Laws Program.21 I have taught Legal Profession (the standard American legal ethics class) a dozen times,22 and to an extent, teaching the course has become a habit. Nonetheless, I am quite excited about teaching a version of it at Tsinghua and spent a significant amount of time thinking about the class, revising the syllabus and preparing to teach it in Beijing, as I expected the class to differ in significant ways from the one I teach back home. Structurally, rather than a semester-long, 28meeting class, 75-minute per session course, I have only a quarter, with 14 meetings of 120-minutes to work with at Tsinghua. Moreover, rather than teach on a Monday-Wednesday or on a Tuesday-Thursday two-day schedule, as is the practice at the University of Denver Sturm College of Law, I will teach on Wednesday and Thursday afternoons, making the course, at least in theory, a more intense experience, akin to a three week winter semester or a summer session taught daily. In many ways Legal Profession is a standard code class featuring the American Bar Association’s Model Rules of Professional Conduct and the Model Code of Judicial Conduct,23 but I try not to teach it as a black-letter law class. Rather, I spend a few minutes in class highlighting the key terms of art of the particular Rule assigned and then spend the bulk of class time in a problem-solving mode

20. The Tsinghua Notes are to the best of my knowledge the first contemporaneous account taken by an American law professor in China. Other American law professors have recently written about their experience teaching in China. See, e.g., Patricia Ross McCubbin et al., China's Future Lawyers: Some Differences in Education and Outlook, 7 ASPER REV. INT'L BUS. & TRADE L. 293 (2007). Literature on legal education in China is a growing body of scholarship. See, Zhenmin Wang, Legal Education in Contemporary China, 36 Int'l Law. 1203 (2002) (survey of contemporary legal education in China); Kara Abramson, Paradigms in the Cultivation of China’s Future Legal Elite: A Case Study of Legal Education in Western China, 7 ASIAN-PAC. L. & POL’Y J. 302 (2006). 21. See Master of Laws (LLM) Program in Beijing, www.law.temple.edu/servlet/RetrievePage?site=TempleLaw&page=Graduate_Masters_Law_Beijing (last visited Mar. 20, 2008). 22. Following Watergate, the American Bar Association amended its accreditation standards to require that every law student take a course in legal ethics. See American Bar Association, Accreditation Standards, Preface, http://www.abanet.org/legaled/standards/standards.html (last visited Mar. 20, 2008). 23. Hereinafter I refer to the American Bar Association Model Rules of Professional Conduct as the “Rules.”

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exploring with the students the details of the Rule, its Comments and relevant readings from the casebook in the process of addressing hypotheticals. Finally, I use the problems as a platform to study justifications and criticisms of the Rules as a means of developing professional judgment and instilling the exercise of discretion in my students. My discussions with colleagues who have taught the class at Tsinghua in years past suggested I should deviate from my usual approach to the class. Preparing to teach Professional Responsibility here I intend to focus heavily on the Rules and explicitly teach the course as a code class. I have been advised that the students will expect the “law” to be grounded in the code, and that stepping away from it will be unnatural and foreign to many of them. I have been thinking about what it might have felt like to try and introduce insights from the Realist tradition in a nineteenth century class at Harvard Law School when Formalism and the blackletter approach to law were not only the status quo but the only way to think about and imagine law.24 Based on conversations in preparation for this class, I assume that some of my Chinese law students will find class discussions about the underlying policies for a particular Rule conceptually baffling. Nonetheless, taking a straight-forward statutory approach to teaching the Rules presents a challenge because the Rules consist of open-ended standards that inherently and explicitly build upon the need to exercise judgment in construing and applying their provisions.25 My initial plan is to spend the first hour of each session studying the assigned Rules and Comments in great detail and turning to hypos in the second hour, grounding the answers in the Rules and only gradually expanding the scope of answers to include, implicitly, justifications and criticisms of the Rules. To that end, I have decided to cut out most of the excerpted articles from the syllabus, both for pedagogical reasons (I think that law review articles, even if designated as “secondary authority,” might seem foreign to the students as sources of law) and for practical reasons (I have been advised not to assign more than ten to fifteen pages per class beyond the Rules and Comments). Finally, in terms of content, I intend to cover, relatively speaking, more topics in less depth. Compared with the standard class I teach at home I will explore selected provisions from the Model Code of Judicial Conduct which I do not usually cover, but due to the structural limitations (the smaller number of classes as

24. See CHARLES WARREN, HISTORY OF THE HARVARD LAW SCHOOL AND OF EARLY LEGAL CONDITIONS IN AMERICA (Da Capo Press 1970) (1908); supra note 3. 25. Comment 9 to the Rules’ Preamble states: “Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living. The Rules of Professional Conduct often prescribe terms for resolving such conflicts. Within the framework of these Rules, however, many difficult issues of professional discretion can arise. Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.” MODEL RULES OF PROF’L CONDUCT PMBL. cmt. 9 (2007) (emphasis added). Comment 14 adds that: “The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.” Id. at PMBL cmt. 14.

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well as the practical restriction on assigned readings) I will cover the materials we do explore in less detail. Wednesday, March 7, 2007, minutes after class #1 Thirty six students are enrolled in Professional Responsibility. About half are law students, legal assistants and attorneys, and the other half consists of government lawyers, judges and prosecutors. Overall, initial class chemistry seems very positive, both among the students and with regard to their interactions with me. I was pleasantly surprised by the class’ active participation. Based on my conversations with colleagues, I expected participation to be limited in scope. Many students participated voluntarily, responding to hypotheticals or addressing my questions. A couple of people came during the short five-minute break to ask clarifying questions. One person stayed after class to further pursue a point. The level of participation was on par with class participation at any of the Legal Profession classes I have taught at the University of Denver Sturm College of Law. At this stage, it is hard for me to assess whether participation was informed by the readings because the hypos were introductory in nature and because participants did not directly cite or rely on the readings. Tomorrow, as we turn to the Rules, I intend to ask participants to explicitly support their insights by citing to the Rules, Comments and the readings. Studying the definition of a “lawyer,” we explored Wasserstrom’s characteristics of professions.26 I built on Wasserstrom’s third characteristic, economic monopoly and self-regulation, to explore the notion of the legal profession’s independence from outside regulation and specifically independence from the government (for simplicity, I chose not to explore recent developments back home including the federalization of legal ethics – the increased regulation of the profession by federal statutes, and also stayed clear of other state laws that regulate lawyers).27 Preparing for class, I spent a great deal of time thinking about how to approach the issue of independence. Back home, students accept the independence of the profession as a given and we are able to explore challenges to it without having to emphasize in too great a detail the importance of the underlying assumption. I am not sure what kind of response I was expecting, but the students did not have any noticeable reaction to the notion of the independence of the American Bar and seemed to have accepted it as a matter of fact.

26. See Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 HUM. RTS. 1 (1975-76), reprinted in ANDREW L. KAUFMAN & DAVID B. WILKINS, PROBLEMS IN PROFESSIONAL RESPONSIBILITY FOR A CHANGING PROFESSION (4th ed., North Carolina Academic Press 2002) [hereinafter CASEBOOK]. 27. On the federalization of legal ethics see Fred C. Zacharias, Federalizing Legal Ethics, 73 TEX. L. REV. 335 (1994) (overview of the federalization of legal ethics, concluding that federalization may be inevitable). On the complex landscape of the regulation of lawyers see David B. Wilkins, Who Should Regulate Lawyers?, 105 HARV. L. REV. 799 (1992).

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Shortly thereafter, exploring the notion of role-differentiated behavior, we reviewed a hypo featuring Adam and Eve in the Garden of Eden,28 which is meant to illustrate the point that one acting in a certain role (husband) might behave differently than one acting in a different role (religious believer or attorney). In an American class, with little direction on my part, the discussion quickly turns to whether one will tell on Eve or not and why. Interestingly, that was not the direction class discussion took today. The first student response was “file a lawsuit against the snake” and the second response was “destroy the evidence, the apple.” Implicitly yet clearly, a consensus of not reporting Eve to God emerged in class. Furthermore, when I explore the hypo with my American law students, in nearly every class someone will argue that he or she will report Eve to God because eating the apple is forbidden. In other words, often a student will play into the hypothetical, arguing, if only implicitly, that his or her role as a religious believer might dominate decision-making processes and trump the role of a husband with its presumed loyalty to his wife. In contrast to American students, the class did not seem to react to the religious background of the hypo, and more importantly, I feared, did not notice the contrasting role of a religious believer, which might conflict with conduct suggested by the husband’s role. I decided on the spot to revise the facts of the hypo and suggested that eating the apple represented a grave violation of the law, and that rather than reporting Eve to God, Adam will possibly notify the police. I did get lively participation as a result of the change. When I asked whether anyone would report Eve, a significant other or a friend who was breaking the law to the police, no one answered. Knowing that there were prosecutors and judges in the class, I asked again: “would anyone call the police?” No one answered. I asked: “why not?” Almost in unison many answered: “because I would protect my friend.” In hindsight, I regret replacing God with the police. After class a student told me that the Beijing police force has been traditionally held in low regard and it is possible that my students simply did not consider notifying the police a viable or meaningful option. Nonetheless, I found the students’ consensus fascinating because it suggested the importance of the role of the friend in Chinese culture, and the importance of relationships relative to “legal duties” or external obligations. Following the hypo, I asked the students to assume that they were the lawyer for Adam and Eve. Again, many asserted they would not disclose the wrongdoing to the police or the authorities, citing not confidentiality but rather loyalty to friends. One student introduced the Chinese concept of Guan Xi, meaning relationships, and took the position that the friendship with Adam and Eve might be more important than being a lawyer. He might not even try to dissuade Adam and Eve from wrongdoing (eating the apple) because that would be offensive to them as his

28. “You are Adam in the Garden of Eden. Eve tells you that the snake has given her an apple from the Tree of Knowledge and that she is about to eat it. Knowing that it is ‘forbidden,’ what do you do? Suppose you were the lawyer for Adam and Eve. What would you do then?” Casebook, supra note 26, at 14.

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friends. Interestingly, none of my American students have ever raised the idea that a lawyer might also be a friend of her client, let alone that the role of a friend might be more important to the lawyer, in meaningful ways, than her role as an attorney.29 Thursday, March 8, 2007, minutes after class #2 In the first hour we covered Rule 1.1 (attorney competence). As is often the case with my American students, the first time we construe a Rule in detail, some students had read the Rule but not the Comments, and others had a solid intuitive understanding of the law but were not used to carefully applying the Rule to facts. We turned our attention to a short excerpt in the casebook exploring alternative mechanisms to ensure attorney competence. Introducing civil liability as an alternative form of regulation, that is, an alternative to the disciplinary Rules, we read our first case, examining the privity requirement in malpractice. I thought this would be a good “first” case, with the excerpt being only one page long and the legal question explored narrowly defined (the case examined only one of the four elements of the malpractice cause of action). The students, however, had some unexpected difficulties. The first two words in the case are Per Curium and I was asked what that meant. Some had problems following the parties in the case (petitioner law firm, respondent third party, and the “missing” party the client). Others did not know what privity meant. With hindsight, I should have selected a different case, for example, one that clearly introduced the elements of malpractice before exploring in great detail privity. In class, I provided an introduction summarizing the elements of the cause of action but for some that was too little (I could tell some students had difficulties with the concept of a fiduciary) and for others perhaps it was too late (they could have used the introduction before reading the case). It is one thing to assign the case to 2nd or 3rd year American law students who have taken torts (even if they have not covered malpractice they have certainly covered negligence), and another to assign it to students who are possibly reading negligence cases for the first time. After the short break we explored the “self-regulation” rules, Rules 8.1, 8.3 and 8.4, along with several hypos. I explained the “draconian” nature of the mandatory reporting rules in the context of the independence of the bar and suggested that self-reporting and reporting others are the price lawyers “pay” for independence from government regulation, and the students seemed to appreciate the point. Many smirked when we covered Rule 8.4(e), expanding misconduct to cover both stating and implying an ability to influence an official. I was reminded of our discussion of Guan Xi yesterday. Possibly, it seemed, implying an ability to influence an official was an acceptable way of doing business and practicing law and denoting it as misconduct was unreasonable. We finished class by construing a complicated hypo dealing with both mandatory reporting and professional misconduct and calling for the application of

29.

But see Fried, supra note 14.

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Rule 1.1. Class discussion was excellent, including both volunteers and students called on. One such person, sitting at the back, stalled for a minute and when I was getting ready to grant her a pass (as is my practice back home) surprised me with a strong, coherent answer. Another pleasant surprise awaited me after class ended. Many students, perhaps as many as ten, stayed to ask thoughtful questions, reflecting a deep understanding of class materials. Not often in a class of thirty six students back home do I stay for another half an hour to answer questions, especially after what was for many the third and final class of the day. Monday, March 12, 2007, hours before class #330 Over the weekend I received my first e-mail from a student in the class. The student asked a clarifying question about the hypo with which we ended class last time and invited me to have lunch or dinner with a group of six students. Back home, I use lunch invitations as a check on students’ reactions and feelings about the class: on the first day of class I tell my students that I would like to meet each and every one of them in small groups, no more than two or three at a time, for lunch during the semester. I explain that there is no credit for having lunch with me and we do not discuss class materials. I have come to realize, over time, that students tend to approach me and ask to schedule lunch after effective, interesting classes and tend not to after unclear or difficult classes. On the other hand, I probably should not read too much into the lunch invitation I just received. Talking to colleagues who have previously visited Tsinghua, I have been told to expect social invitations from students. It appears that the hierarchical distance that tends to characterize the fairly formal interactions between students and professors in American law schools is not common here. While having lunches with most of my students on a regular basis is rather unusual in Denver, playing basketball with students, having lunches and dinners and even singing along in a Karaoke bar is considered standard at Tsinghua. Nonetheless, I am delighted by the invitation, which would allow me to get to know better a significant percentage of the class, six out of thirty six students. Reviewing and editing my class notes for today, covering authority in the attorney-client relationship and communications, I put greater emphasis on Rules and Comments. I have assigned no readings from the casebook, in part compensating for a longer reading assignment for class this Thursday, when we begin discussing confidentiality. I developed many hypotheticals to test the students’ understanding and knowledge of today’s materials, including both shorter hypos quizzing the elements of the various Rules and longer ones teasing out the justifications underlying the Rules.

30. The Program Director asked the previous Thursday if I could teach on Mondays and Thursdays instead of Wednesdays and Thursdays to accommodate the schedule of a colleague.

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Monday, March 12, 2007, minutes after class #3 Rule 1.2 – allocation of authority within the attorney-client relationship – was not well received by the class. The principle of lawyer non-accountability for the client’s goals captured in Rule 1.2(b) was met with normative dismay.31 The students certainly understood the Rule, but seemed to be unpersuaded by its justifications. One student wondered why a lawyer who helps bring about a bad, undesirable outcome should not be liable for the consequences. Another pointed out that while Rule 1.2(d) prohibits a lawyer from counseling or assisting a client in criminal or fraudulent conduct, the Rule does not prohibit an attorney from counseling or assisting a client in conduct which is illegal but does not amount to a crime or a fraud, and asked why a lawyer should not be accountable for the latter. Furthermore, the students were not persuaded by the distinction drawn by Rule 1.2(d) between presenting an analysis of legal aspects of questionable client conduct and recommending the means by which a crime or a fraud might be committed by the client. One student opined that providing information that would allow the client to commit a crime is equivalent to implying the client should commit the crime. Once again, the students understood the distinction between presenting the law and recommending a course of conduct but did not seem to think it was, or should be treated, as an important one. Nor were they reassured by the lawyer’s ability to withdraw from the representation. Having not yet covered Rule 1.6 and confidentiality, I briefly explained the general rule of non-disclosure of information related to the representation, and the students’ sense of discomfort seemed to linger. “So the normal rule,” one commented, “is that a lawyer who helps a client pursue illegal conduct is not responsible and cannot tell anyone about it?” When my American students question Rule 1.2 and its justifications, I often feel that their critiques are somewhat cynical, suggesting that lawyers’ nonaccountability is a principle conveniently drafted by, and enjoyed by, lawyers. I did not get that sense in class today. The queries sounded less cynical and more genuinely critical of the rationales for the Rule. Perhaps this was the first indication of the profound gap in expectations about the role of law and lawyers vis-à-vis clients between my American and Chinese students. Back home, the notion of strong client autonomy is well accepted and respected as a fundamental assumption, even if it is occasionally critiqued. Of course, the reasoning goes, the client is ultimately responsible and accountable, alone, for the objectives of the relationship. While some of my students will sometimes challenge excusing

31. On the principle of non-accountability see Murray Schwartz, The Professionalism and Accountability of Lawyers, 66 CAL. L. REV. 669, 672-75 (1978) (according to the “principle of nonaccountability” lawyers are not morally accountable for the client’s choice of ends and means); NATHAN M. CRYSTAL, PROFESSIONAL RESPONSIBILITY 620 (1996) (lawyers are “neither legally, professionally, nor morally accountable for the means used or the ends achieved.”). See also DAVID LUBAN, LAWYERS AND JUSTICE: AN ETHICAL STUDY 148-74 (1988) (criticizing the principle of non-accountability for protecting lawyers from moral culpability for their clients’ conduct).

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lawyers’ accountability, the notion of client responsibility seems consistent with their respect of the latter’s autonomy. Making the lawyer responsible for the client’s conduct seems to position the lawyer in the role of a gate keeper of sorts, a moral police officer, which not only contradicts many students’ intuitive understanding regarding the role of lawyers, but also seems to infringe on the client’s autonomy. Perhaps my Chinese students’ cold reaction to Rule 1.2 stems from the fact that they do not share a strong conviction, even deference, to individual autonomy. They do not have an instinct to hold the client alone responsible for his conduct, nor an inclination to see the lawyer gate-keeper as infringing on client autonomy. The class’ reaction, I must admit, caught me a bit off guard. In a sense, I found myself having to defend assumptions that are hardly tackled or questioned by American students, and taking the autonomy assumption for granted myself I am not sure that I did a good enough job responding to the students’ challenges. Not one of my American law students has ever noticed that Rule 1.2(d) does not prohibit assisting illegal (but not criminal or fraudulent) conduct. Even if a somewhat theoretical point,32 this observation might again disclose a different perspective about the role and conduct of lawyers. Perhaps American students are more trusting of lawyers, and therefore believe that there is no need to explicitly prohibit undesirable attorney conduct. Possibly, my Chinese students are less trusting of lawyers in general, and less willing to believe that lawyers will do the right thing. By the way, such close, attentive reading of the Rules seems to be common among the students. Next we explored Rule 1.4 – attorney-client communications. When I explained that Rule 1.4 leaves certain areas of communications unresolved, such as whether a lawyer must disclose to his client that he does not carry malpractice liability insurance, or whether an attorney must give her clients a “Miranda” type warning about how she is going to exercise her discretion in revealing confidential information,33 the students accepted the explanation as a matter of fact. However, by the time we were done with Rules 3.3 (candor toward the tribunal) and 4.1 (truthfulness in statements to others), I sensed a little student frustration with the built in ambiguity and discretion embedded in the Rules. I repeated my introductory comments about the Rules as open-ended standards as opposed to bright-line rules, and the inherent importance of exercising professional judgment and discretion in construing the Rules, but got the sense the students were not satisfied. I felt like they wanted more bright-line answers and less ambiguity. My instinctive response was to try to accommodate to their tastes. As I was walking outside of the building I was thinking about incorporating into my notes a few “easy” examples where the application of the Rules is

32. A broad enough interpretation of the terms ‘criminal’ and ‘fraudulent’ would leave only de minimis conduct as non-prohibited illegal conduct by an attorney. 33. See generally, Eli Wald, Taking Attorney-Client Communications (and therefore Clients) Seriously, 42 U. S. F. L. REV. 747 (2008).

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straightforward. After all, frustration with the law we cover in the class can soon lead to frustration with the professor who is teaching it and is “unable” to “clearly” resolve the issues. But as I am typing these notes I have decided not to give in, at least not yet. While it is perhaps understandable that students who are used to black-letter law might be somewhat frustrated by open-ended standards, the Rules are such standards and simply avoiding the hard questions inherent in applying open-ended legal propositions cannot be the way to go pedagogically. To be sure, I am not sure why the students seemed to be uncomfortable with the Rules’ ambiguity and not at all certain that familiarity with Formalism was at the root of it. When a student stayed after class and commented about the many “traps” within the Rules I responded that command of the “traps” is what distinguishes a good lawyer from a mediocre one. In class on Thursday I plan on being more explicit and explain that the very same “esoteric knowledge” and expertise that we discussed on the first day of class as the underpinnings of professionalism are called for in exercising discretion and interpreting the Rules. Also, I plan to suggest that the exercise of professional judgment, in turn, explains the high status of lawyers, as well as their ability to charge high fees. Thursday, March 15, 2007, an hour or so before class #4 Dean Wang Chenguang hosted a “welcome dinner” yesterday evening. I expected a formal exchange introducing more structure and coordination among the visiting American faculty and between the classes taught. Instead, dinner was informal and enjoyable and after dinner I spent another hour or so with one of my new colleagues. By the way, Dean Wang was very interested in legal ethics and discussed the possibility of introducing a class in legal ethics as a mandatory requirement of the Tsinghua curriculum. I arrived at school early today and met six students for lunch: a judge, a law professor, two law firm partners and two government lawyers. Lunch was very friendly and informal. I assumed we would share communal dishes, but perhaps to accommodate my imputed Western preferences, the students each ordered an individual dish and I did the same. The conversation covered the students’ careers, plans to take the New York State bar examination after graduating from the Program, and gracious invitations to visit the students’ respective home provinces after class was over. I was asked, and shared, details about my professional career and personal life. The students were very interested in the contrast between their experiences as “foreign” students and the study of law in a second language (English) and my own experience as an LL.M. student years ago (Harvard Law School, class of 1998), as well as in my impressions of their class compared with the “average” legal ethics class I teach in Denver. I responded that I felt it was a bit premature to draw any conclusions but did share that tentatively it was my impression that students here seemed to work harder than my American students. Back home, I explained, it was usually my experience that some students were very well prepared for class, the

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majority was prepared and a minority hardly prepared at all, whereas here the vast majority of students seemed to be highly prepared for class. I speculated that the relative high cost of the Tsinghua/Temple Program coupled with the perception of exposure to American legal education as a privilege might explain the relatively high motivation of the class, contrasted perhaps with a sense of entitlement to be at law school and displeasure with Legal Profession being a required class expressed by some of my American students. I also commented that the different background of the “typical” student – a 2nd and 3rd law student back home, where most students come straight out of college contrasted with practicing attorneys here in Beijing – also made a difference in the nature and quality of participation. On the way back to school, two of the students were curious regarding my position on the issue of whether American law should influence Chinese law, and to what extent. I shared with them that for me, teaching at Tsinghua was a way of answering their question. In 2000, as a law student, I took a reading class entitled So you Really Want to be a Lawyer? One topic covered was the emerging legal profession in China and we explicitly explored the role of American lawyers and law professors in pursing the Rule of Law, and specifically, in advocating the American version of the Rule of Law in China.34 Some students in that class took the position that while American law might play a very positive role in pursuing a rule of law agenda in China, American lawyers ought to be particularly mindful of cultural and social differences that might render some aspects of American law inapplicable in China. In other words, some cautioned that a whole-sale advocacy of American law, without sufficient attention to Chinese details, circumstances and realities, might result, if “successful,” in the adoption of the “Rule of Law” in China as an empty shell. I found then, and still find today, that reasoning to be compelling. Rules of legal ethics, I explained, are important and can play a desirable role in the regulation and guidance of an emerging legal profession in China. Particular rules, however, are grounded in specific understandings and assumptions about law and lawyers that may not hold true in China (or anywhere else) and may therefore be inapplicable, even undesirable, if adopted “as-is.”35 Thus I think of the class as offering a comparative law perspective, a necessary yet insufficient step towards

34. See, e.g., William P. Alford, Of Lawyers Lost and Found: Searching for Legal Professionalism in the People’s Republic of China in 287-310 RAISING THE BAR – THE EMERGING LEGAL PROFESSION IN EAST ASIA (William P. Alford, ed., Harvard University Press, 2007); William P. Alford, On the Limits of “Grand Theory” in Comparative Law, 61 WASH. L. REV. 945 (1986); William P. Alford, How Theory Does – and Does Not – Matter: American Approaches to Intellectual Property Law in East Asia, 13 UCLA PAC. BASIN. L. J. 8 (1994-95); Matthew C. Stephenson, A Trojan Horse Behind Chinese Walls? Problems and Prospects of U.S.-Sponsored ‘Rule of Law’ Reform Projects in the People’s Republic of China, 18 UCLA PAC. BASIN L. J. 64 (2000). 35. Pound, Progress of the Law in China, supra note 6, at 348 (“The tendency of much of this training abroad [of foreign law professors in China] has been to bring about fixed ideas derived from some foreign system of the doctrines and technique of that system as the legal order of the nature. While many law teachers whom I have met are able to rise above this, it remains something with which law teaching and so law must reckon [with].”).

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participating in an informed discourse about the Rule of Law and legal ethics in China. Thursday, March 15, 2007, minutes after class #4 Minutes before class I walked to the Starbucks just outside of Tsinghua University’s East Gate and ordered a latte. As I was heading to class moments later, I thought how surreal the moment was. Here I am, teaching an American legal profession class at a Chinese law school, getting used to a routine of walking downstairs to the classroom on the second floor from my office on the fifth floor, with a cup of Starbucks coffee in my hand. Today we explored confidentiality. Preparing for class, I assumed confidentiality would be a challenging topic. In contrast with their American counterparts,36 confidentiality is not the norm for Chinese lawyers, in part because protecting a client’s confidential information from the state is not taken for granted, and in part because the idea that client confidentiality is a desirable concept, even if it was plausible, is not well accepted. Following our discussion on the first day of class, I realized that perhaps confidentiality might not be as important to Chinese lawyers as it is for American lawyers. That is, American lawyers tend to protect confidentiality zealously because they believe it is essential to their effective representation of clients, and because they realize that it provides them with a competitive edge vis-à-vis other professionals who are unable to offer confidentiality to their clients. Our discussion of Guan Xi, however, made me wonder whether for Chinese lawyers, other considerations might be more important than confidentiality. Preserving and pursuing a friendship, for example, might be more important to a Chinese lawyer than confidentiality, with the possible result being divulging a client’s confidence to a friend. We started class by introducing the general rule. The students were struck by how broad the rule was. Specifically, some challenged the standard broad interpretation of the term “information relating to the representation,” in Rule 1.6(a). When construing a hypo about a disgruntled client who after losing his business and his wife to his former partner, threatened to harm the former partner and possibly his ex-wife and child,37 one student suggested that violence stemming from resentment over the outcome of a case is not related to the representation because the scope of the representation was litigation, not violence, and threat of violence should never be deemed “related to the representation.” Another suggested that the representation ended when the client lost the litigation, and that everything the client said after the representation “ended” cannot be related to it. That is, the student reasoned that “related to the representation” should be limited by the timing of the statement, and that statements made after the representation

36. See Simon, supra note 9, at 113 (arguing that confidentiality is not only a professional norm but also a fetish of American lawyers). 37. CASEBOOK, supra note 26, at 145 (Problem 3-5).

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was over cannot, by definition, be related to the representation. I explained that the representation probably did not end automatically with the conclusion of the trial and that pursuant to Rule 1.4 the lawyer has a duty to explain the outcome to the client, but suggested that even if the representation was defined to end at the moment the judge ruled on the matter, many American attorneys would nonetheless consider the client’s statement confidential as relating to the representation. The exchange allowed me, I believe, an opportunity to explicitly engage the class in the process of assessing the law from a policy perspective. I told the students that until now we have been studying the “black-letter law” of confidentiality: we started by explaining whether confidentiality attached to a specific piece of information pursuant to Rule 1.6(a), and if so, explored whether any exception, pursuant to either subsection 1.6(a) or 1.6(b) applied. Then we took one step away from the “law” and asked how an attorney ought to exercise her discretion to reveal confidential information assuming she has the discretion to do so pursuant to subsection 1.6(b). Finally, I suggested, in assessing the outcome we can ask whether Rule 1.6 makes sense. Should we have such a broad confidentiality rule? I introduced two of the Rule’s standard justifications. First, confidentiality as means of ensuring client autonomy: in a highly legalized society, first-class citizenship depends on an informed understanding of the law. Clients’ informed understanding of the law, in turn, depends on access to lawyers and effective communication with attorneys, and effective exchange with one’s lawyer is more likely to take place with the protection of confidentiality, which establishes trust and loyalty in the attorney-client relationship.38 Second, broad confidentiality encourages clients to “tell all” to their lawyers, who in turn are able to dissuade clients from wrongdoing.39 I asked the students whether these reasons justified a broad confidentiality rule. Interestingly, no one responded to my query. Whereas moments before, many engaged and attacked specific applications of the rule, no one explored the rule at this more abstract, general level. In other words, while several students had implicitly argued before, in the context of Problem 3-5, that confidentiality was too broad and attempted to limit the application of the rule by restricting the zone of “relating to the representation,” no one explicitly took the general position that confidentiality was too broad.

38. See, e.g., Steven L. Pepper, The Lawyer’s Amoral Ethical Role: A Defense, A Problem, and Some Possibilities, 1986 AM. B. FOUND. RES. J. 613 (1986). 39. MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 2 (2007) (“[Confidentiality] contributes to the trust that is the hallmark of the client-lawyer relationship. The client is thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer... The lawyer needs this information… if necessary, to advise the client to refrain from wrongful conduct… Based upon experience, lawyers know that almost all clients follow the advice given, and the law is upheld”).

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Back home, students sometimes question the utilitarian defense of the rule,40 pointing out that we simply do not know whether lawyers attempt to dissuade clients from wrongdoing, and whether, assuming lawyers do try, clients tend to listen. In my experience, American students are relatively comfortable arguing in generalities – they will criticize the rule for making unsubstantiated empirical assumptions. My Chinese law students did not make such claims. It seemed to me that some students in class today were not persuaded by the autonomy defense of confidentiality. When the outcome seemed inconsistent with common morality (for example, when the Rule suggested that confidentiality attached, no exception was applicable and the outcome was morally condemnable), the students worked hard within the framework of the Rule either to find that confidentiality did not attach or to find an exception. Importantly, however, even if an exception was available the students were reluctant to say that they would use their discretion to reveal confidential information, and even more reluctant to take, explicitly, the position that confidentiality was too broad, or that that they found the autonomy defense, in general, unpersuasive. My intuitive reaction was to think that the exercise was not going very well – the students did not take the extra step of assessing the law from a general perspective. After class it occurred to me that perhaps the exercise did work, in the sense that it demonstrated the reluctance of Chinese lawyers to engage in abstract general policy debates removed from the details and specifics of the law. What did not work was my unconscious attempt to force the students into a particular mode of reasoning that I was comfortable with and used to. Nonetheless, my curiosity regarding the students’ stance on confidentiality was left unsatisfied. American students, even those critical of the utilitarian defense of confidentiality, usually tend to accept, at least partially and in certain contexts, the autonomy defense. They concede that while increased individual client autonomy is by no means an overriding value, it is nonetheless an important value. I got the sense that my Chinese students did not share that conviction. It seemed to me that some of their implicit challenges to broad confidentiality resulted from the fact that they simply did not believe client autonomy was such an overriding value. But I could not tell whether that was the case because the students did not engage with me openly at the general level of discussion. Following the short break, I was asked a couple of pointed questions. First, can one construe confidentiality so broadly as to have it attach to virtually any statement by the client, because most statements might have a possible future impact relating to the representation? Second, is not all information “relating to the relationship” in the sense that but for the relationship the client would not be in a position to tell it and the lawyer will not be in a position to hear it? Again, I was

40. For Utilitarian critiques of confidentiality see for example 8 JOHN H. WIGMORE, EVIDENCE, at 549 (quoting 7 JEREMY BENTHAM’S WORKS 474 (J. Bowring ed., 1842) (Bentham famously argued that because the innocent did not need the protection of the attorney-client privilege, the privilege only protected the guilty); Fischel, supra note 9.

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struck by how possible opposition to the rule’s broad application was repeatedly expressed in terms of the text of the Rule itself, and stayed clear of explicitly criticizing the rule for being, per se, too broad, and of challenging the rule on general grounds. After class a student wondered why two different rules, confidentiality and the attorney-client privilege, were in place to deal with information relating to the representation. When I explained the possible differences in scope and application, as well as the different justifications, the student commented that it was inefficient to have two rules regulate the same issue. I asked her whether she thought it was similarly strange that criminal law and tort law could regulate the same set of facts, and suggested that similarly, legal ethics rules could regulate information alongside rules of evidence. Nonetheless, I was impressed by the student’s questioning of the existence of parallel bodies of law regulating the same underlying conduct. Often, American law students (and their law professors) simply accept the artificial categories of law imposed on them, and so legal ethics, civil liability and rules of evidence naturally live side-by-side, no questions asked. For this Chinese law student, these categorizations were probably foreign, thus the existence of two parallel bodies of law was far less obvious. Monday, March 19, 2007, hours before class #5 I met “Amanda” (a prosecutor), “Vicky” and “Ashley” (attorneys) for coffee at Starbucks. All three intend to take the MPRE,41 and to sit for the bar exam (in New York and California). The meeting lasted for an hour and a half and turned into a lunch at a restaurant next door. The students had endless questions about the MPRE, the bar exam and the prospects of finding a job in the United States upon graduating. It occurred to me that there is probably relatively little in a way of a network of information the students can resort to. Even if some Tsinghua Professors might have some relevant knowledge, the students might be reluctant to share their interest in finding a job in the United States. And while the students have yet to visit Temple, my own personal experience as an LL.M. student with the office of career services at Harvard Law School causes me to doubt whether Temple’s office of career services would be well equipped to address the needs of a handful of Chinese graduates of its overseas program. To be sure, while officers at the office of career services at Harvard Law School, and no doubt at Temple, were well-intending, they were relatively ill-informed about the market for LL.M. students and naturally better positioned and more concerned with serving the needs of the office’s main constituency – the J.D. student population.

41. The Multistate Professional Responsibility Examination (MPRE), the stand-alone ethics component of the bar exam, is required for admission to the bars of all but three US jurisdictions and is administered by the National Conference of Bar Examiners. See National Conference of Bar Examiners, MPRE, http://www.ncbex.org/multistate-tests/mpre/ (last visited Mar. 20, 2008) (discussing all aspects of the MPRE).

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Over the weekend, the news media reported some unrest in Pakistan, following the placement of the Chief Justice under house arrest, allegedly after he took an anti-governmental stance on human rights. Pakistani lawyers took to the streets in support of the Chief Justice, clashing with police forces.42 Back home, I make a point of regularly addressing in my Legal Profession class relevant topics ripped from the headlines, demonstrating to the students that the Rules are not merely an academic code but rather an applicable and practical set of analytical tools they can use in thinking about how to address “real” events as lawyers. Having in weeks’ past discussed in class the role of lawyers as public citizens,43 what a wonderful opportunity, I thought, to examine with my Chinese students what the response of American lawyers should be.44 A couple of days have passed since the riots in Pakistan were first reported and, as far as I could tell, there was no response from either the organized American Bar or from prominent individual American lawyers. I was curious and tried to anticipate how my Chinese students would react: will they be sympathetic to the inaction and silence of American lawyers or will they be surprised by it? Sympathy might mean that my students do not “buy into” the role of American lawyers as public citizens with special responsibilities to the Rule of Law; or it might mean that Chinese lawyers do not believe that it is the role of American lawyers to preach about the Rule of Law and the independence of the judiciary overseas; or that while they accept the role of American lawyers as public citizens they also understand that it is hard to actually take a stand as lawyers in the real world for fear of aggravating clients. A reaction of surprise, on the other hand, might mean that my students find the ideology of the Rules persuasive, that they expect American lawyers to live up to their prescribed professional ideology and are disheartened when they fail to take a stand. I am excited about discussing the situation with my Chinese students. Monday, March 19, 2007, minutes after class #5 No one participated, not one student. I could not tell whether no one knew what I was talking about because they have not heard about the events in Pakistan,

42. See, e.g., Isambard Wilkinson, Riots Push Pakistan Towards Political Crisis, THE TELEGRAPH (Mar. 16, 2007), http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/03/16/wpakistan216.xml (last visited Mar. 20, 2008) (describing the political situation in Pakistan). 43. MODEL RULES OF PROF’L CONDUCT PMBL. cmts. 1, 6 (2007) (exploring the role and duties of lawyers as public citizens). 44. See Eli Wald, U.S. lawyers: Speak out, NAT’L L.J., Apr. 9, 2007, www.NLJ.com (exploring the lack of reaction by American lawyers to the lawyer uprising in Pakistan). Since the publication of Wald’s Op. Ed., the ABA has condemned the suspension of the Chief Justice, see http://www.abanet.org/op/docs/070413letter_mathis_pakistan.pdf (last visited Mar. 20, 2008), and a group of lawyers and scholars led by Dean Harold Koh of the Yale Law School have signed a statement denouncing the assault on the Rule of Law in Pakistan, see Statement from Yale Law School Dean Harold Hongju Koh on Rule of Law in Pakistan (Nov. 7, 2007), available at http://www.law.yale.edu/about/5866.htm (on file with Yale Law School Library).

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whether they did not get how the situation was relevant to class materials, a problem I sometimes encounter in Denver when attempting to explore in class events ripped from the headlines and demonstrate the applicability of the Rules, or whether they would not participate because the subject matter seems to touch upon hot political issues. I explained that I was not interested in their political opinions. I asked the class how an American lawyer should react given the materials we covered in class. No response. I usually call on students when no one volunteers but this time I decided not to. I thought the problem was the perception that the question I was asking was political and did not want to force participation. To break the misconceived “political” ice, I shared with the class an anecdote from a class I taught in Denver: administrating an exam, I asked the students a series of questions about an interim rule promulgated by Attorney General John Ashcroft limiting the scope of confidentiality extended to clients who are suspected of terrorist activities.45 One student spent two whole pages out of five allotted for the answer explaining that the United States was not a totalitarian society, that such a rule could never and will never be promulgated and arguing that if it did, it would surely be declared unconstitutional. I explained to my Chinese students that the answer was completely unresponsive because the exam explicitly called for the application of, and only of, the Rules of Professional Conduct. The student’s political, ideological and even constitutional law position was simply irrelevant and thus unresponsive to my legal ethics exam. After class, the irony of the situation occurred to me. Just the other day I was lamenting the (implicitly) hard formalist line my Chinese students were taking in refusing to explicitly debate the policies and wisdom of confidentiality, and now I was preaching the formalist line, asking them to ignore the politics of the situation in Pakistan and simply discuss the “law.” In class, I did not see the irony of what I was trying to accomplish and I did not easily give up. There was still not a single response from the students. I waited in silence for a couple of long minutes and then shared another anecdote, this time about one of my students in Denver who tried to take a “pass” when I called on him in class. “Having attended class for five weeks,” I replied, “what gives you the impression you could pass? You would not ask a judge for a ‘pass’ and you should not ask for one here. If you do not have an answer, that is of course alright, take a minute to think about it, and tell me what you think.” My Chinese students smiled but no one raised a hand to participate. Disappointed, I lectured from the podium. I suggested that taking the role of a “public citizen” seriously suggests that American lawyers should take a stand and speak up when egregious violations of the rule of law and attacks on the independence of the judiciary and the profession take place, even overseas. I suggested that inaction might cause the American public to doubt the conviction of the American profession and its willingness to act and defend the professional ideology it claims to adhere to. It was a relevant consideration, I added, that the

45.

Prevention of Acts of Violence and Terrorism, 28 C.F.R. § 501.3 (2001).

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American legal profession possesses significant power and has the ability, if it chooses to, to take a stand. But, I cautioned, if the organized bar or individual lawyers wanted to speak up, they must be informed and competent to do so, pursuant to Rule 1.1. Then, I concluded, there is the issue of discretion – and relevant considerations involve living up to the “public citizen” standard, enhancing one’s reputation, political considerations and anticipating clients’ responses. The class took notes and uncharacteristically there were no comments or follow-up questions. The assigned subject matter for class discussion included the “self-defense” exception to confidentiality,46 and confidentiality among co-clients. Back home, I encourage the students to critically assess the self-defense exception in the context of an otherwise broad confidentiality rule, examining its justification – preventing a client-principal from abusing the protection of confidentiality and using it offensively against the attorney-agent – against some of the exception’s consequences, for example, the possibility of a lawyer revealing a client’s confidential information in response to allegations by a third-party not involving the client. And I use the co-clients context to highlight the possible tension between the conduct prescribed by the Rules and practice realities, market pressures, and the desire to keep clients satisfied. For example, I explore the Rules’ default approach according to which confidentiality does not attach among co-clients,47 against a market incentive that might cause an attorney to suggest a waiver that will allow her not to reveal confidential information of a long-standing husband client to a co-client wife for fear of annoying and consequently losing the husband as a client. In class today, however, we did not explore these complexities and mostly stayed at the level of black-letter law, construction of the doctrine’s terms of art, and detailed study of the Comments. Overall, I was surprised by the matter-of-fact approach of my students to confidentiality. I expected, before starting the two-session unit on confidentiality, that some students would oppose the doctrine on the ground that broad confidentiality makes little sense given competing duties to friends, family and possibly the State. Upon reflection, I realize that my expectations were influenced by my growing accustomed to certain modes of critique and specific ways of exploring the law. American law students (and their professors) are more inclined to generalize critiques of confidentiality, debate competing duties and the interplay of applied ethics and market pressures. Chinese law students are more likely to express discontent with the law by challenging the various elements of the doctrine, but also are more accepting of the law “as is” compared to their American counterparts.

46. MODEL RULES OF PROF’L CONDUCT R. 1.6(b)(5) (2007); see CASEBOOK, supra note 26, at 204-09 (exploring the self-defense and collection of fee exceptions to the rule of confidentiality). 47. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 75 (2000); A. v. B. v. Hill Wallack, 158 N.J. 51, 726 A.2d 924 (1999).

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Thursday, March 22, 2007, hours before class #6 I am excited about the topic for the next three classes – conflicts of interest. My lay understanding of Chinese culture suggests that the concept of conflicts of interest might be counter-intuitive to my students. In particular, while “legal” conflicts of interest are generally prohibited under Chinese law, personal conflicts of interest that stem from the lawyer’s personal relationships with other parties are generally not prohibited. Perhaps the students will be sympathetic to the thesis that conflicts of interest are sometimes not a “bad” thing in the sense of demonstrating disloyalty to a client, but rather a desirable condition for effective representation because the lawyer is intimately familiar with details about both parties and thus positioned to serve the needs of both.48 That said, I am mindful of the overall mission of this class to cover the “core” of the doctrine and not confuse the students with cutting-edge challenges such as “desirable” conflicts and evolving “ethical walls” as a practical response to the otherwise rigid conflict rules. Thursday, March 22, 2007, hours after class #6 Dissatisfied with the experience in class on Monday and fearing that in my attempt to encourage the students to reason in a particular abstract way I might have suppressed their alternative modes of reaction to the doctrine, I decided to address confidentiality one more time. I drew an illustration on the blackboard of a big, thick circle representing the general rule of confidentiality. Many of the other Rules we have covered in class to date, such as 1.4, 1.16 and 4.1, were represented by smaller circles outside the confidentiality circle, in the sense that they could not penetrate the confidentiality protection, except for Rule 3.3, which in part “breached” the confidentiality circle as it trumps confidentiality if the two conflict. With this vivid illustration on the board, I asked the students: “does such a broad, thick protection make sense,” and rather than leaving it at such an abstract level I asked: “what if your significant other asks you about what you do? Your parent? Your government?” The class was broken wide open. For the entire first hour, students asked questions, with at least half the class participating. The questions were thoughtful and detailed, with some students offering answers to questions posed by classmates and further complicating the questions in a constructive fashion. Some of the questions hit topics we covered in hypos in the last two classes but I could tell the students were gaining a deeper understanding of the doctrine. Exploring the details, for example, of how you could not refuse to answer your own father’s

48. See, e.g., MELVIN I. UROFSKY, LOUIS D. BRANDEIS AND THE PROGRESSIVE TRADITION 11112 (Oscar Handlin ed., Little, Brown & Company 1981) (analyzing Brandeis’ “counsel for the situation”); ALPHEUS T. MASON, BRANDEIS, A FREE MAN’S LIFE 475 (Viking Press 1946) (discussing Brandeis’ role of lawyer for the entire situation). See generally John S. Dzienkowski, Lawyers as Intermediaries: The Representation of Multiple Clients in the Modern Legal Profession, 1992 U. ILL. L. REV. 741 (1992) (discussing Brandeis’ representation of multiple clients with opposing interests).

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question about who you represent if your father does not and could not understand the notion of confidentiality; and what happens if you share with your husband confidential information and then you get a divorce, we were able to test and appreciate the broad protection extended by confidentiality, its demands on lawyers and clients alike, and its limits. We even implicitly tackled the important topic of the gap between the “law in the books” and the “law in action” exploring the usually low likelihood of discipline in the event of breaching confidentiality by revealing confidential information to one’s significant other. The discussion set up the stage for our discussion of conflicts after the break. I briefly introduced Rule 1.7 and its Comment and turned to a study of a concurrent conflict of interests’ hypo. We explored it in great detail and class participation was again strong. I ended class with a homework assignment: our study of the hypo concluded that a conflict of interest existed on three different grounds, that on the facts the lawyer was unlikely to get informed consent from an affected client and that consequently the lawyer would have to decline representation of a long standing client. “What will you do,” I asked, “what will you tell your long standing client? Would you follow the Rule and risk losing the possibly angry client?” I asked the students to be prepared to answer these questions on Monday. In what I perceived to be a quick positive feedback on class experience, many students stayed to ask questions after class. One student, a partner at a relatively large law firm in Xi’an, told me that Chinese law forbids conflicts of interest on grounds not unlike Rule 1.7(a), but does not have the equivalent of 1.7(b). Specifically, client informed consent cannot cure a conflict of interest.49 The student’s comment made me realize that in a sense I was thinking of my teaching experience at Tsinghua in a limited way, as a one-way street in which I actively teach the students about American legal ethics and the American legal profession, and the students, relatively passively, learn. To be sure, I anticipated learning a lot from the students and from teaching the class in terms of the role of law and lawyers in China, the complex interplay between law, culture and popular culture, and about the role of assumptions underlying the law. Moreover, having taught half a dozen classes in Beijing, I was beginning to appreciate learning a lot in terms of effectively communicating with my Chinese students and interacting with different legal mindsets. Nonetheless, in terms of content, I implicitly thought the experience would be a one-way street. I am not a comparative law expert and did not anticipate gaining comparative knowledge, or developing an interest in Chinese legal doctrine per se. And yet the student’s comment triggered in my mind the possibility of writing an article comparing and contrasting the American conflict of interest rules with its Chinese counterparts, which arguably do not allow for curing a conflict once it materializes. But was not an article of this nature an obvious possible outcome of teaching in Beijing? How had it not occurred to me before, with many hours of preparation

49.

Law of the People’s Republic of China on Lawyers (2001), supra note 17, at art. 34.

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for the class under my belt? I do not know. I am forced to admit that it is possible that unintentionally I came to teach the class with somewhat of a superiority complex, unconsciously assuming that American legal ethics law was more “advanced” than Chinese law on the subject, and that I would have little to learn from Chinese law in terms of content.50 The student’s comment exposed the foolishness and simplicity of this implicit assumption and at the same time demonstrated to me how a true exchange can expand the borders of one’s limited legal imagination. In years of thinking about conflicts of interest, it has previously occurred to me to push the doctrine in the direction of narrowing conflicts and allowing more currently tainted representations, but I have never seriously entertained the thought of heading in the other direction, enhancing conflicts and possibly forbidding representations without the possibly of a cure once a conflict was present. The point, to be sure, is not whether such an approach will be desirable in the American context. Rather, the point is that, imprisoned in the dynamic of the American scholarly status quo, it never occurred to me to explore this possibility. Some students who stayed after class wanted to know if I had taught a legal ethics class before. At first, I did not understand what they were trying to get at. Apparently, they heard that some Chinese students in the program who took a legal ethics class in years past subsequently failed the MPRE, and they were concerned about the value of the course in terms of preparing them for the MPRE. I shared with the students that as a foreign LL.M. student myself, years ago, I found the bar exam in general and the MPRE in particular to be very difficult, irrespective of taking some excellent classes in law school. That personal experience, as well as my experience teaching American students, led me to believe that many foreign students fail the exam as the result of being ill-informed about the exam, what it actually tests, how to effectively prepare for it, and how to develop reasonable expectations about it. Realizing that my Chinese students may not have easy access to sources of information about the exam, I offered to meet with them and discuss strategies for preparing for the MPRE in detail. The exchange made me think about the preoccupation of some of my Denver students with the relatively low bar passage rate of our graduates in Colorado, and what I perceive as “quick” solutions for addressing “the problem.” I must admit, I am generally not very sympathetic to “quick fix” schemes such as having the law school teach more classes in subjects covered on the bar exam, failing the bottom of the class which statistically is less likely to pass the bar exam, or admitting only students with higher LSAT scores who are statistically more likely to pass the bar exam. I tell my students that, in my opinion, success on the bar exam is, in great part, a product of hard work during law school and the development, over time, of a set of “learning to think like a lawyer” skills. Consequently, to me, “studying for

50. My inability, if only at the unconscious level, to overcome a sense of superiority is ironic given that the first step I took preparing for teaching at Tsinghua was to refresh my recollection of Edward Said’s classic Orientalism. See EDWARD W. SAID, ORIENTALISM (Vintage 1979).

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the bar” consists of studying hard for three years while at law school, not cramming for months before the exam, and addressing indicators of difficulty (such as a low GPA) early on while there is still ample time to remedy the issues. Furthermore, success on the bar exam calls for careful and thoughtful strategic planning for it. In other words, I take the position that it is one’s own responsibility to do whatever is necessary to make the most out of the law school experience, including proactively preparing for the bar exam. It is not the sole or primary responsibility of the institution to ensure a worthwhile learning experience at law school or to help passive students pass the bar exam. In an obvious way, Chinese students could not be expected to prepare for the bar exam on their own in a similar fashion. They know relatively little about the exam, information is not readily available in their native tongue, and many of the resources and preparations that I believe are necessary for an effective three-year course of study are not available to them. The students’ concern about successfully taking the MPRE, however, made me think that I might be judging my Denver students too harshly. In a less obvious way, many American students also should not be expected to effectively prepare for the bar exam on their own. Perhaps law schools ought to do a better, more explicit, job of providing information and managing expectations about the bar exam. Just like my Chinese students, American students sometimes also face a cultural hurdle when they take the exam, only the details differ. The socalled transformation of the American legal profession,51 the decline of values and law as a vocation and rise of commercialism and law as a business affect not only lawyers and law firms but also law students, professors and law schools.52 In this new environment, some “consumer-students” expect law schools to “help” them pass the bar exam as an entitlement, rather than expect to pass it as the product of proactive, hard work. And the growing gap between the expectations of students and that of faculties about the role of law schools in general and regarding the bar exam in particular needs to be addressed,53 just as the more noticeable gap between the expectations of my Chinese students and practice realities calls for attention. In a sense, addressing the gap of expectations and providing relevant information to my Chinese students might be easier to do than addressing the gap of expectations and need for information of American students, but the need of the latter group might be as great, notwithstanding the fact that it is less obvious. Friday morning, March 23, 2007

51. Pearce, The Professionalism Paradigm Shift, supra note 15. 52. See K. B. Melear, The Contractual Relationship between Student and Institution: Disciplinary, Academic and Consumer Contexts, 30 J. C. & U. L. 175 (2003) (exploring the movement of university students to consumers of education with precise expectations). 53. See David B. Wilkins, The Professional Responsibility of Professional Schools to Study and Teach about the Profession, 49 J. LEGAL EDUC. 76 (1999) (discussing the ethical failure of law school’s to teach students about the legal profession).

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This morning I received a flattering e-mail from a student, thanking me for yesterday’s class and the course and asking to arrange a lunch or a dinner with a group of students. I was honored by the compliment and struck by the similarity between student feedback here and at home: positive class experiences lead to outside-of-class interactions, which in turn improve the teaching and learning experience as well as the overall class experience for both students and the professor. Monday, March 26, 2007, shortly after class #7 One tentative theme that seems to have emerged from class to date is the gap between my initial expectations of encountering significant explicit differences in cultural attitudes and approaches to class materials (such as my anticipated rejection of broad confidentiality, or critique of broad conflicts of interest rules) and the subtle ways in which implicit small differences have been explored in class, not directly related to greater general assumptions but rather manifesting themselves in challenges to the construction of terms of art and interpretation of black-letter law provisions. That said, class today provided a clear example of the impact of different cultural and social assumptions about the law and lawyers. We studied United States v. Gellene,54 a case about a concurrent conflict of interest involving a partner at a large law firm who failed to disclose a conflict of interest in connection with a bankruptcy related representation. The Court treated the case as a straightforward application of the conflict rules and disqualified the law firm. Teaching the case in China to foreign students I obviously spent a significant amount of time responding to questions explaining background information: entities, and not only individuals, can be shareholders of another entity; bankruptcy does not necessarily mean the death of an entity but rather a method of legally sanctioned reorganization; the United States can be party to a proceedings in a noncriminal case, etc. Not as obvious were the more subtle background facts we had to cover in class about the case: Milbank Tweed is a large law firm, Goldman Sachs a significant financial actor, etc. Even less obvious was the need to address some of the additional circumstances that help explain the conduct of Mr. Gellene, the Milbank attorney in question, the law firm and the other parties involved in the case. Most, if not all, students were unaware of the transformation of the American market for legal services in the mid 1980s, the growth of the large law firm, and the emergence of international and global law firms.55 Not being familiar, either explicitly or implicitly, with the structure and organization of the large law firm,

54. 55.

182 F.3d 578 (7th Cir. 1999) (excerpted in CASEBOOK, supra note 26, at 39-46). See generally MARC GALANTER & THOMAS PALAY, TOURNAMENT OF LAWYERS: THE TRANSFORMATION OF THE BIG LAW FIRM (University of Chicago Press 1991) (explaining the structure, organization, and growth of the large law firm).

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the students could hardly appreciate the possibility of struggling for control and leadership at a large firm, the possibility of intra-firm conflicts and the resulting incentives and pressures under which Mr. Gellene, a partner at such a firm, operated.56 To be sure, the point is not to excuse Mr. Gellene’s conduct, but rather to explore the circumstances under which a large firm partner might feel that he could not afford to lose a client even at the cost of violating the Rules. Furthermore, the point is to explain a stressful work environment that would make it possible to imagine, not to excuse, a reality in which a young Mr. Gellene did not have the time to complete the paperwork after passing the bar exam because he was working endless hours for weeks at a time. One student in the class quickly concluded that Mr. Gellene must have been either a fool or completely incompetent. Others agreed. And why not? The class could hardly imagine other circumstances that might begin to explain his conduct. One student asked why Mr. Gellene and the law firm did not settle the case. After all, he reasoned, most civil cases settle in America and partners in large law firms make a lot of money. If what was at stake was 1.9 million dollars,57 why did not Mr. Gellene or the firm offer that amount to settle the case? I provided additional information about the stakes involved in this case, and suggested that Mr. Gellene might not have had sufficient funds, even had he wanted to, to settle the case. I further suggested the possibility that the law firm, or elements within it, may have not wanted to come to the aid of Mr. Gellene and may have even pressured the insurance company not to settle the case.58 Intra-firm conflicts? The concept was hard to grasp for one student who insisted: “[but] it was his firm. His firm. How can the firm do this to him?” The issue is not the perhaps somewhat exaggerated student’s naïveté, but rather the crude understanding of the operations of complex institutions within which legal interactions take place in the United States. No doubt, my Chinese students are fully capable of understanding these complex practice realities. Nonetheless, given the vastly different practice realities most of them are familiar with, and the different professional culture they operate in, we needed to spend a lot more time in class covering background information. The impact of different legal cultures as an impediment to effective teaching became crystal clear. All of the sudden, it seemed nearly impossible to bridge, in the course of an hour or two, the gap separating Chinese students from American legal culture. Most American students know, if only intuitively, what a large law firm stands for. Even at a non-“elite” law school, where statistically most graduates will practice in Colorado and not on Wall Street, and where the majority will not work in one of

56. See generally REGAN, supra note 5. See also ELLEN JOAN POLLOCK, TURKS AND BRAHMINS: UPHEAVAL AT MILBANK TWEED WALL STREET’S GENTLEMEN TAKE OFF THEIR GLOVES (Simon & Schuster 1990). 57. The student’s question was based on a note contained in the Casebook referring to the client’s claim against the law firm seeking repayment of its fees. CASEBOOK, supra note 26, at 47. 58. See REGAN, supra note 5.

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Denver’s large law firms, the concept of the large law firm is, at least intuitively, familiar. I doubt whether my Denver students will agree with Auerbach that large law firms constitute the elite of the American legal profession and define the practice of law even for those who do not work for them.59 And yet, the students understand the meaning of a large firm, if only at the level of a demeaning reference to the kind of place where the “sell-out crowd” of law review editors and classmates in the top of the class are going to work at. In a meaningful way, the large law firm looms in the shadow for all, defining, if only by contrast, the practice and expectations of many of our students. And so, in Denver it is possible to meaningfully talk about a universe where the rules of ethics are employed strategically by clients and within law firms in battles for control over leadership of large firms, and about the difficult choices a lawyer like Mr. Gellene has to make in a changing legal world of global law firms, where rules of ethics play only a limited role in guiding attorney conduct. Of course, given the fact that many of my students will not work for a large law firm, in class we pay close attention to context. We explicitly explore the implications and applicability of the insights we gain reading the case to the world of solo practitioners and small law firms, in which most of my students back home will practice. But how should I make the adjustment here in Beijing, where the students are tempted, and not unreasonably so given their frame of reference, to write the case off as an “easy” one involving a foolish lawyer, an incompetent one, or both? It occurred to me after class that it is one thing to recite to students in my Jurisprudence class back home the Realist imperative that “context matters,” to impress upon them the inherent ambiguity in the bright-line rule “the speed limit is 55 miles per hour,” even to discuss with my Legal Profession students the implications of Realism for practicing attorneys;60 it is another thing altogether to experience the gap inflicted by the lack of a shared context, shared cultural and

59. JEROLD S. AUERBACH, UNEQUAL JUSTICE 4 (Oxford Univ. Press 1976) (“Corporate Lawyers… emerged around the turn of the century as the self-appointed guardians of professional interests… [D]ominating major professional associations and institutions… [t]hey constituted a professional elite: a group able to define the terms of admission ‘to the circle of the… influential.’”). “[T]he corporation lawyer in the large law firm seems to symbolize what has become of the legal profession in modern America.” See also Wayne K. Hobson, Symbol of the New Profession: Emergence of the Large Law Firm in THE NEW HIGH PRIESTS LAWYERS IN POST-CIVIL WAR AMERICA 3 (Gerard W. Gawalt, ed., Greenwood Press 1984); ROBERT L. NELSON, PARTNERS WITH POWER: THE SOCIAL TRANSFORMATION OF THE LARGE LAW FIRM 1 (1988) (“The large law firm sits atop the pyramid of prestige and power within the American legal profession. Although comprising but a small fraction of lawyers, through its impact on patterns of recruitment, styles of practice, and the collective institutions of the bar, the large law firm has a significance that far exceeds the number of lawyers it employs.”). 60. See generally K. N. LLEWELLYN, THE BRAMBLE BUSH: SOME LECTURES ON LAW AND ITS STUDY 122-23 (Oceana Publication, Inc. 1930) (offering a Realist analysis of actual practice realities); see also David B. Wilkins, Legal Realism for Lawyers, 104 HARV. L. REV. 469-70 (1990) [hereinafter Wilkins, Legal Realism for Lawyers] (applying Realist insights in the legal profession field).

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social assumptions, and shared practice realities and then talk about context to Chinese students in Beijing. On Thursday we conclude our discussion of conflicts of interest. I am not sure how I am going to address the subject matter – Rule 1.10, dealing with the imputation of conflicts of interest from one lawyer to the entire firm. Do I introduce the so-called “[d]raconian” rule, which generally imputes conflicts from one attorney to the entire firm, the Comment and a few hypos only? Do I report recent practice developments in various states acknowledging ethical walls, which mitigate the Rule’s impact?61 If nothing else, today’s class demonstrated the importance of shared social and cultural assumptions to the understanding of complex legal realities. A lawyer friend with whom I talked about class discussion today commented, “it only makes sense to spend a semester discussing freedom of speech and flag burning in a place where not only have the students taken Constitutional Law, but where they have an unshakeable confidence and faith in the Constitution, the Bill of Rights and their ‘God given right’ to freedom of speech.” Perhaps challenging the fundamentals of the conflict of interest rules makes little sense in a class that was just introduced to the doctrine, does not share the fundamental premise from which the rule derives, and is more familiar with the opposite rule in which conflicts cannot be cured? Thursday, March 29, 2007, shortly after class #8 Today’s class centered on imputed disqualifications from an attorney to her firm; Rule 1.10. I mostly lectured from the podium, on occasion opening up the discussion and exploring with the students hypotheticals. Toward the end of the second hour we examined the desirability of the Rule in the world of large law firms with global offices. Given the time constraint I decided not to introduce recent state law developments expanding the use of ethical walls and screens. To an extent, class today was anti-climatic in the sense that my students accepted the doctrine matter-of-factly. Likely unaware of recent practice developments which render the picture painted by Rule 1.10 inaccurate, the students explored the Rule and Comment as if the two represented the entire doctrine. While anti-climatic in the sense that class was uneventful, the experience was also somewhat alarming; in an obvious way it demonstrated the ability of a professor to “hide the ball,” even manipulate the way students learn and come to think about the law. Students tend to assume and trust that their professors are competent and knowledgeable about the law. Today’s class suggested that if the professor is incompetent, or worse, if the professor chooses, for whatever reason, to only teach part of the doctrine, the students might not find about the professor’s conduct and have little recourse for it. Friday, March 30, 2007, CLE lecture

61.

Wald, Lawyer Mobility and Legal Ethics, supra note 11, at 267-68.

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At the invitation of the managing partner of the Beijing representative office of DLA Piper, a British-American law firm in town, and the Legal Committee of the American Chamber of Commerce in Beijing, I gave what I believe was the first Continuing Legal Education (CLE) ethics presentation in Beijing on “The New Disclosure Landscape: Representing Entities under Revised ABA Model Rules of Professional Conduct 1.6 and 1.13.” The audience consisted of about twenty lawyers, mostly American lawyers and a few Chinese attorneys qualified in New York and California working for representative offices in Beijing. A DLA Piper partner opined that as the number and size of American law firms with representative offices in Beijing increases, demand for CLE presentations will increase. I, however, was interested not so much in the (important) goal of servicing the CLE needs of American lawyers in China, but with the opportunity to meet, interact, and introduce American legal ethics to practicing Chinese lawyers outside of my Tsinghua classroom. In an obvious way, a CLE lecture would allow me an opportunity to take if only a small step in the direction of promoting the Rule of Law in China. I was struck, however, by the reality in the conference room: a professor excited about possibly participating in spreading the Rule of Law, American lawyers who were there in part to satisfy CLE requirements, and Chinese lawyers who were there not necessarily to learn about American legal ethics but rather to network and stake a claim for being legitimate actors in the growing market for large law firms in Beijing. Monday, April 2, 2007, after class #9 Today we began exploring access to legal services by studying Rule 1.5 regulating attorney fees. After construing the Rule’s definition of “reasonableness,” students’ questions were detailed and reflected thoughtful analysis. One student asked whether a lawyer can increase fees if a representation results in a significant number of unanticipated conflicts of interests. The question allowed us to explore the interplay between several Rules, namely 1.5(a) (fees), 1.7(a) (conflicts) and 1.16(b) (voluntary withdrawal), and also demonstrate, in context, the practical importance of putting the fee agreement, including contingencies triggering an increase in fees, per Rule 1.5(b), in writing. Another student inquired whether double-billing is permissible under the Rule. We explored numerous examples, from impermissible double-billing by falsely claiming to perform different tasks for different clients at the same time, to the more gray area of charging two different clients for one minimal increment of six minutes of time having been on the phone with each for three minutes, and of charging one client for flying time and another client for work done while on an airplane. I used the latter example to highlight to impact of technological advances on the application of the Rules.

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Our discussion of contingency fees per Rule 1.5(c) and (d) was quite striking as the students engaged, for the first time, in a fairly abstract analysis of the policy implications of the doctrine, grappling with a desire to increase access to legal services for clients who otherwise may be denied legal representation while worrying about stirring up litigation and introducing a conflict of interest between attorney and client. Once again, the discussion allowed us to explore the interplay between different Rules, this time 1.5(c) (contingency fee) and 1.7(a) (conflicts), and also to illustrate the importance of context by discussing whether contingency fees were equally desirable in the criminal and civil arenas, and within these arenas contrasting automobile accidents with domestic relations cases. A student comment suggesting that lawyers will always prefer a contingency fee to an hourly fee allowed us to revisit Rule 1.2 and the notion of informed client consent, and also apply the notion of risk aversion in explaining why some lawyers may prefer forgoing a higher contingency fee for the increased certainty of collecting a lower hourly fee. Finally, our discussion of In the Matter of Fordham62 provided us with an opportunity to examine in context how a court construed the open-ended standard of “reasonableness.” Before arriving in Beijing I imagined the great many ways in which teaching in China would differ from teaching in the United States. Today’s class, however, was surprising only in how “ordinary” it was. It featured solid construction of the law, followed by insightful student analysis of the implications of the law. From a teacher’s perspective, I could not tell the class apart from any class I have taught back home. Thursday, April 5, 2007, minutes before class #10 Before class I had lunch with an American law professor who is visiting at Tsinghua. We discussed the emerging legal profession in China, the role and scope of legal ethics here and also various topics in American legal ethics. Walking over to my office, which I share with another American colleague visiting here, it occurred to me that the Temple/Tsinghua lax approach of informal coordination among its American law professors, an approach I instinctively lamented, might have been a blessing in disguise. The lack of formal coordination among the visiting faculty members allowed us the freedom and the motivation to form our own mini legal community. It occurred to me that over the course of mere five weeks I was fortunate to have formed a great friendship with my new office-mate, and had just had an enlightened exchange with another colleague of the kind I have not had with some of my colleagues back in Denver in over five years of teaching. Perhaps no one at Temple or Tsinghua intentionally decided not to pursue formal coordination in order to allow a natural, informal sense of community to develop among the

62. 423 Mass. 481 (1996) (construction of the reasonableness of attorney fees) (excerpted in the CASEBOOK, supra note 26, at 497-503).

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visiting faculty members. Nonetheless, experiencing this “grass-roots” creation of a mini community among the visiting faculty members at Tsinghua made me think about the role of law professors as faculty members back home. My instinct of expecting the Tsinghua and Temple administrations to introduce me to members of the Tsinghua faculty, to assume responsibility for coordinating among its visitors, etc., not only exhibited the kind of passive approach to law school I reject in my own students back home, but also possibly reflected an unconstructive frame of mind on my part regarding my role as a faculty member: how easy it is to passively await until the law school’s administration takes the initiative in fostering a sense of community among the faculty; how convenient it is, for example, to wait for the curriculum committee to initiate and pursue reform proposals to better integrate classes and insights across the curriculum; and how tempting it is to cynically criticize the lack of such a sense of community and coordination and blame other faculty members for it. Indeed, I was quick to point a figurative finger at the Temple/Tsinghua administration and fault it for not more proactively coordinating the work of its visiting faculty. In an academic world consisting of competing demands on faculty members’ time, different levels of interest and commitment among faculty members to better the institution and curriculum, and varying levels of interest in participating in community building among faculty, perhaps formal, top-to-bottom, administrationdirected efforts to mobilize faculty action might be less successful than a more decentralized informal approach. Surely, relying on a decentralized, individual faculty members’ interest in building their own mini communities within the law school in lieu of the more traditional administration-led, top-to-bottom mandated structure might be expecting too much of law professors. Upon reflection, it occurs to me that my own informal interactions, and so-called “community building” activities at Tsinghua were probably motivated as much by a sense of isolation in Beijing, where I was a lonely “outsider”, as they were by a commitment to, in some sense, better the Program or live up to some ideal notion of a proactive faculty member seeking out his colleagues. That said, the experience in Beijing has at least suggested to me a new avenue of informal, decentralized faculty cooperation, which might not replace but rather work alongside the traditional approach of reliance on law school administration to facilitate cooperation and integration among the law school community. Thursday, April 5, 2007, shortly after class #10 Today we deviated from the usual pattern of construing, in order, the Rule, Comment and case law, and instead started our discussion with the two Supreme Court cases that form the basis of the advertisement and solicitation rules, Ohralik

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and In re Primus.63 Following the majority opinion of the Supreme Court, we introduced in class distinctions between a lawyer’s political and commercial speech, and discussed lawyers’ primary motivations in representing clients. Rule 7.3 explicitly incorporates the Supreme Court’s reasoning. By granting only limited protection to attorneys’ commercial speech it curtails solicitation of clients when “a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain,” and extends greater protection to attorneys’ political speech allowing solicitation in cases where the lawyer’s primary motive is not pecuniary.64 I asked the students whether they found the Court’s reasoning compelling and the distinction between a primary pecuniary and non-pecuniary lawyer’s motivation for purposes of soliciting clients practical. Somewhat to my surprise, a majority of the class rejected the distinction and seemed comfortable with the dissent’s explicitly “political” criticism that the majority opinion was trying to rationalize its desire to find against an ambulance chaser in Ohralik and in favor of an ACLU attorney acting in In re Primus. I asked those rejecting the majority opinion whether they agreed with Justice Marshall who rejected the distinction and argued that states should be held to a higher standard before they could restrict any lawyer speech, or whether they agreed with Justice Rehnquiest who also rejected the distinction but argued that states should be held to a lower standard so they could regulate lawyer speech and conduct with greater ease. Interestingly, a majority of the class sided with Justice Marshall, with some students citing the importance of the freedom of speech and others the independence of the bar and fear of opening the door to state regulation of the profession as rationales for making it harder for states to regulate attorneys’ conduct. The students wanted to know how I would “vote.” I took advantage of the opportunity to introduce a point about the gap between the Rules (“the law in the books”) and their enforcement (“the law in action”). I argued that because the Rules were chronically under-enforced,65 one might side with Justice Rehnquiest in this case, hoping that over-regulation of lawyers’ conduct in the books, combined with under-enforcement of the Rules in action will end up achieving the desired level of practical regulation.66 I then noted that in a somewhat bizarre twist, the so-called liberal and usually pro state-intervention Justice Marshall was in this case arguing for less state regulation, whereas the so-called conservative and usually anti state-intervention Justice Rehnquiest was calling for more government regulation. One student made the first explicitly political comment in the course, suggesting that since In re

63. Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447 (1978) and In re Primus, 436 U.S. 412 (1978) (excerpted in the CASEBOOK, supra note 26, at 518-36). 64. MODEL RULES OF PROF’L CONDUCT R. 7.3 (2007). 65. Wilkins, Legal Realism for Lawyers, supra note 60, at 493 (noting rules of professional conduct tend to be “systematically under-enforced”); Richard Abel, Why Does the ABA Promulgate Ethical Rules? 59 TEX L. REV. 639, 648 (1981) (noting that "[s]tudy after study has shown that the current rules of professional conduct are not enforced"). 66. See generally Meir Dan-Cohen, Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law, 97 HARV. L. REV. 625 (1984).

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Primus involved, in the student’s own words, “forced abortion” the conservative and so-called pro-life Justice Rehnquiest argued for more regulation so the state of South Carolina could keep the ACLU lawyers out of its jurisdiction.67 Notwithstanding the somewhat confused analysis – a so called “pro-life” position would want the ACLU lawyers in South Carolina in this case to assist in challenging state-mandated “abortion” as a condition-precedent for eligibility for state aid – I was mindful of the student’s explicit reference to policy analysis and complex political insight in explaining the Court’s opinion. Monday, April 9, 2007, minutes after class #11 Before class today I had lunch, for the first time, with an individual student (as opposed to a small group). Back in Denver, I mostly have lunches with small groups of students in the interest of efficiency – the classes tend to be relatively large and teaching two classes per semester I ask students to form small groups so everybody will have an opportunity, if interested, to have lunch with me. Old habits, I suppose, die hard, and I asked my Chinese students to form small groups as well. For the first time since arriving in China almost a year ago I had an explicitly political conversation about inequality in China with a Chinese person. The student was thoughtful about the growing gap between rich and poor in China, the possible unrest that might follow and curious about the situation in the United States. I suspect I would not have had such a conversation if the student was part of a small group, and the realization made me regret not taking a different approach and explicitly offering to meet with students individually. The point, of course, is not to solicit political commentary from my students but rather appreciating that group dynamics operate differently in the United States and in China. Even in the United States, a small group context impacts the students-professor interaction in specific ways (for example, rewarding socially proactive students), and yet in China the group concept, as opposed to individual interaction with students, also seemed to have a more direct impact on the content and subject matters covered in the lunches. In class today we discussed Rule 1.13 dealing with the representation of entity clients. The experience of teaching Legal Profession before, as well as of presenting CLE ethics talks back home, has taught me that many students and lawyers find the notion of representing the entity and not its constituencies counterintuitive and confusing. I decided to attempt to cover less and added a short introduction about corporate governance, the typical structure of American corporations and the separate legal identity of an entity as a “person.”

67. In re Primus involved a challenge to a requirement implemented in Aiken County, South Carolina, pursuant to which pregnant mothers on public assistance were being sterilized or threatened with sterilization as a condition of continued receipt of medical assistance under the ‘Medicaid’ program. CASEBOOK, supra note 26, at 525-26.

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The detailed background seemed to have facilitated an interesting class discussion after the break. First, we used the Rule to explore the possible gap between the rules and practice realities, or between legal ethics considerations and business considerations. I explained that while the language and meaning of subsections 1.13(a), (f) and (g) is sometimes straightforward, their application is often not as easy. Upholding the line between representing the entity and its constituencies might be easier in the classroom than it was in real life where a constituency, often a Chief Executive Officer or a Chief Legal Officer, might be hiring and firing the attorney. Similarly, going-up-the-entity-ladder per subsection 1.13(b) and disclosing confidential information outside of the entity in the best interest of the entity-client per subsection 1.13(c), over the objection of a constituency, might be easier said than done. Second, a constructive student comment suggested that Rule 1.13 creates a disincentive for low-level employees to cooperate with a lawyer for the entity who is interviewing them. The student opined that the insistence of the Rule that the lawyer represents the entity and not the low-level employee with the consequence that confidentiality will belong to the entity and not the low-level employee, combined with the questionable protection afforded to an employee, whereby if the lawyer believes that a conflict arises he will advise the employee that he does not represent him, might cause many low-level employees to be less than forthcoming with the lawyer. The student’s comment was very impressive in light of the fact that in the interest of saving time I omitted from the materials any explicit discussion of whether an attorney can represent an employer and its employees, which I usually cover in the longer class format back home. Moreover, it occurred to me that the comment joins other insights in recent classes to form a trend of construing the inter-dependency of rules, in this case Rules 1.13 and 1.6. Thursday, April 12, 2007, hours after class #12 In my Legal Profession class I do not usually cover judicial ethics, mostly due to time constraints, but I decided to include a session on the topic because some of the Tsinghua students are judges. I introduced the topic by examining types of judicial independence from different influences, such as those of the parties involved, the government, politics, public opinion, etc., and was about to review some of the key provisions of the American Bar Association Model Code of Judicial Conduct, when a student raised his hand. “American judges,” he said, “are not really independent at all, right?” I asked him to elaborate, and he explained that another American visiting professor at the Program told the class that judges cannot decide a case without engaging in politics. “So American judges are not independent of politics, right?” Who needs formal coordination when comments made by another professor set up the stage for a great class discussion as if by design? I explained I viewed the concept of judicial independence as a thick continuum rather than a “yes/no” binary question, with absolute ideal independence from all influences on one end and

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complete dependence on the other end. The width of the continuum represented the idea that there were different types of influences determining judicial independence. I added that some American judges are more independent than others, drawing distinctions between federal and state judges, between trial and appellate judges, between appointed and elected judges, between life-judges and term-limited judges, etc. Following additional questions I provided a brief jurisprudential introduction. I explained that a statement such as “American judges all engage in politics” or “the law is what the judge had for breakfast” can be thought of as a jurisprudential statement, capturing an element of insight about judging generally, rather than trying to describe the actual daily realities of judging. The students were fascinated with the overview. They wanted to hear more about Law and Economics and whether it was based on conservative “capitalist” philosophy and inquired how “leftist” was Critical Legal Studies as a school of thought. The students asked if I was a Formalist and whether our class was a “Formal” one. I suggested that while our first twelve classes were somewhat “Formalistic” in the sense that we explored almost exclusively rules, comments and case law and stayed close to the text, our next two classes, dealing with current realities and the future of the American legal profession, would be more “Realistic.” We touched upon the positive/normative distinction. I asked whether it matters whether one believes Formalism is feasible in the sense that law never runs out or rather believes law does run out but it is up to somebody else, not lawyers and judges, to “fix” it, like the legislature. The discussion was very engaging and several students asked me during the break for additional readings. Next we talked about law and politics as experienced by judges. I mentioned the example of the removed Chief Justice in Pakistan again and suggested that regardless of whether the underlying accusations against the Chief Justice were justified, the mere fact that the President of Pakistan can remove the Chief Justice at his pleasure suggests that the judiciary there is closer to the “no-independence” end of the continuum. A student observed that the Model Code of Judicial Conduct is an attempt to push independence wider and further along the continuum. We explored several hypotheticals along those lines. Overall, the students seemed relieved and eager to discuss the politics of American judges and “expose” their lack of independence. No one brought up the independence of Chinese judges explicitly. Some were seemingly drawing a mental sense of comfort from realizing that American judges, too, were subject to complex political influences. In that regard, it appeared that our discussion about degrees, types and scope of independence provided a useful perspective from which to appreciate the explicit claims about the American judiciary as well as the implicit claims about the Chinese judiciary. Finally, the students were interested in using the framework to try to locate and explore the independence of other actors in the legal system such as prosecutors, lawyers in general, and law professors. Two students who are prosecutors asked about the extent to which American prosecutors are subject to pressures from the

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government and one asked me to comment about the controversy surrounding Attorney General Gonzales’ recent removal of federal prosecutors;68 another student, a law professor, asked about the academic freedom of law professors and about tenure and I mentioned the recent debate back home over academic freedom.69 We concluded class discussion by talking about the independence of American law schools. The students found the discussion about the role and power of historically voluntary associations such as the ABA and American Association of Law Schools fascinating. They wanted to know in what sense public law schools were “state” schools and asked whether I thought that private law schools were truly independent if the cost of private legal education was prohibitively high so as to exclude those who could not afford tuition. We engaged in an open and direct discussion about law and politics, the independence of the bar and of the judiciary, and the complex interplay between legal and social, cultural and economic forces. After class, it occurred to me that we probably could not have had a similar discussion a few weeks ago. It seems to me that a significant and necessary condition for such a discussion was the relationship the students and I established over the course of the last few weeks. Not for the first time, the experience made me think about teaching back home. I never before thought so explicitly about the relationship between the students and the professor and the conducive role it played in facilitating effective learning and teaching in the classroom. Wednesday, April 18, 2007, shortly after class #1370 In the first hour we covered numbers, details and trends shaping and influencing the contemporary American legal profession. We talked about the rise in the sheer number of lawyers since the 1960s, the changing composition of the profession with the growing number of women and minority attorneys, and even the rise in the number of foreign law students in J.D. programs. We also discussed the transformation of practice arenas with the declining percentage of solo practitioners and small firm practice and the rise of large law firms, in-house counsel and private industry lawyering. We surveyed the rise of global law firms and the growth of American firms in China.71

68. See generally Online NewsHour, Gonzales Faces Tough Questioning in Senate, Apr. 19, 2007, http://www.pbs.org/newshour/bb/law/jan-june07/gonzales_04-19.html (last visited Mar. 20, 2008) (listing some of the questions posed by Senate Judiciary Committee members to U.S. Attorney General Alberto Gonzales regarding the firing of eight U.S. attorneys). 69. See generally DAVID HOROWITZ, THE PROFESSORS: THE 101 MOST DANGEROUS ACADEMICS IN AMERICA (Regnery Pub. 2006) (arguing that liberals are over-represented in the academia and that the lack of intellectual diversity on American campuses is undesirable). 70. Due to a scheduling conflict I switched my Monday class with a colleague and taught class #13 on Wednesday. 71. See generally CASEBOOK, supra note 26, at 751-70 (exploring contemporary trends and changing practice realities in the American legal profession).

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After the break we read excerpts by Dean Robert Clark to explore whether America has too many lawyers and to understand what American lawyers do.72 We also read excerpts by Gillian Hadfield and examined the shift in the focus of the legal system from promoting “justice” to mainly servicing “business” interests and greasing the wheels of the economy.73 The class was highly interested and interactive. Together we explored, in great detail, how to address Hadfield’s thesis, assuming it was true that corporate clients are driving individual clients out of the courtrooms. I happily occupied the role of mere facilitator as the students raised and discussed multiple solutions. A student who is a judge proposed a statesponsored solution akin to “Judi-care” and another student, building on our discussion from last week, suggested that states sponsor more, cheaper public law schools. Someone asked how more law schools will help address the crowding out of individual clients and a third student retorted that if the cost of legal education was lower some graduates would likely be less driven to seek employment with large law firms or to serve large corporations. The discussion then took an interesting direction when a student explicitly suggested an idea that aims not to provide more legal services but rather to decrease demand for legal services.74 I suggested that some reforms in American law such as the introduction of small-claims courts and mandatory commercial arbitration were aimed at addressing the demand of some parties to legal and judicial services.75 The comment also allowed me to introduce the claim that the American legal profession has, at the same time, too many and not enough lawyers, depending on the context and type of the legal services and lawyers in question.76 Many students stayed after class for a long discussion. One student who is a law professor told me that he found the course so interesting that he was considering pursuing legal ethics as an additional area of expertise. I took great delight in his comment. A great legal ethics class I had taken as a law student

72. See generally Robert C. Clark, Why So Many Lawyers? Are They Good or Bad? 61 FORDHAM L. REV. 275 (1992) (examining the claim that the United States has too many lawyers and arguing that the “normative ordering” role attorneys occupy justifies their increasing numbers). 73. See generally Gillian K. Hadfield, The Price of Law: How the Market for Lawyers Distorts the Justice System, 98 MICH. L. REV. 953 (2000) (studying the evolving role of lawyers from promoters of justice to service providers for the corporate world). 74. For economic analyses of the demand side for legal services, see Reinier H. Kraakman, Gatekeepers: The Anatomy of a Third-Party Enforcement Strategy, 2 J.L. ECON. & ORG. 53 (1986); Ronald J. Gilson, The Devolution of the Legal Profession: A Demand Side Perspective, 49 MD. L. REV. 869 (1990). For “law and economics” contributions to the scholarship of the legal profession, see generally Peter B. Pashigian, The Market for Lawyers: The Determinants of the Demand for and Supply of Lawyers, 20 J.L. & ECON. 53 (1977); Sherwin Rosen, The Market for Lawyers, 35 J.L. & ECON. 215 (1992). 75. See Russell G. Pearce, Redressing Inequality in the Market for Justice: Why Access to Lawyers will Never Solve the Problem and Why Rethinking the Role of Judges will Help, 73 FORDHAM L. REV. 969, 975-76 (2004). 76. Clark, supra note 72; Hadfield, supra note 73. See also, Richard Abel, Big Lies and Small Steps: A Critique of Deborah Rhode’s Too Much Law, too Little Justice: Too Much Rhetoric, Too Little Reform, 11 Geo. J. Legal Ethics 1019, 1021-22 (1998).

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provoked my intellectual curiosity and caused me to pursue the field as an area of expertise. Thursday, April 19, 2007, lunch time This morning, based on students’ requests, I provided a special one hour review of the MPRE and bar exams. The session was voluntary and about half the class was present. I gave an overview of the exams and discussed the special hurdles facing foreign students. The students were eager for both details and exam tips but also for strategic advice. Should they take the exam? What are the advantages of being admitted to the New York or California bars? Interestingly, in the discussion that followed some opined that the reputational benefits were significant, that is, that being an American lawyer conferred desirable social status regardless of whether one intended to practice law in the United States, while others argued that the benefits of obtaining a license in the United States were outweighed by the costs. No one mentioned the practical consequence of passing the bar exam in the United States: possibly seeking a job either with a representative office in China or with an American law firm overseas. Thursday, April 19, 2007, minutes after class #14, the final session In class we examined several topics regarding the future of the American legal profession. We talked about the role of lawyers and specifically their duties to either support or oppose the government at times of national crises, the federalization of legal ethics, foreign ownership of companies such as Westlaw and Lexis publishing law materials, the online practice of law and the experience of female lawyers at large law firms, the judiciary and law faculties.77 We spent most of class time exploring the latter topic. Many students were interested in understanding the “numbers”: contrasting fifty percent or so female law students at most American law schools since the mid 1980s with a glass-ceiling effect at large law firms, faculties and high-level judicial positions.78 We debated the specifics of extending the tenure clock for female law professors and associates, with some students arguing that women who choose such career paths ought to make sacrifices and others pointing out that as long as society expects women to assume the primary responsibility for child-rearing such accommodations are appropriate. I tried to the extent possible to allow the students to dominate the floor and intervened only to facilitate the exchange. I ended class about thirty minutes early, and spent fifteen minutes on a short and pointed exam review. The last fifteen minutes were dedicated to picture-

77. See generally CASEBOOK, supra note 26, at 871-86 (analyzing the future of the legal profession and the effect globalization and technology will have on it). 78. See generally Cynthia F. Epstein, et. al, Glass Ceilings and Open Doors: Women’s Advancement in the Legal Profession, 64 FORDHAM L. REV. 291 (1995) (examining women’s participation and under-representation in the legal profession in a variety of different contexts).

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taking, an adjustment I made having waited for ten minutes to start class today while the students were taking pictures with one of my fellow American colleagues. Sunday evening, April 22, 2007 In designing the exam I decided to explicitly highlight quality over quantity, and focus on basics and fundamentals; I imposed strict space limitations and asked pointed short questions, with the intention of leveling the playing field in terms of language skills (i.e., not favoring students with better English skills). The questions emphasize the Rules and Comments with one hidden complication calling for a critical assessment of the Rules in only one subsection. Following last week’s classes I have received several e-mails from students with questions and comments about our discussion and about the course generally. One female student wrote about experiencing some of the phenomena we explored in class at work, others commented about our use of the Rules in addressing what initially seemed to them to be “big” political, rather than legal, let alone legal ethics, issues. III. CONCLUSION My father, an avid critic of parents and politicians, used to comment that both parenting and politics require skill and expertise but neither requires a license. By this he meant that people tend to go into parenting and politics with little reflection and without necessarily possessing the requisite skill and expertise – assuming they can just “do it” – and that society tends to tolerate and accept this practice. After I became a law professor, it occurred to me that it too fits this description. Teaching requires skill and expertise and yet elite law school graduates tend to get hired for the job on the strength of their clerkships, graduate degrees and law review notes with relatively little attention to their teaching credentials. Promotion to tenure follows a few years later based predominantly on the strength of the candidate’s scholarship with often little more than lip service paid to teaching and service. To the extent attention is paid to teaching, it is usually to addresses only the fundamentals: appropriate preparation for class, respect of one’s students, etc.79 Little attention, if any, is dedicated to the cultivation of advanced teaching skills and expertise, such as the formation of reasonable and informed expectations about teaching, and the continuous monitoring of those expectations against actual class realities to ensure successful communication with students and effective teaching. While teaching in China I was struck by the significant gap between my expectations (including some stereotypical and ill-informed ones) and actual class 79. See generally Deborah L. Rhode, The Professional Ethics of Professors, 56 J. LEGAL EDUC. 70 (2006) (exploring the professional responsibilities of professors and, in the context of teaching, studying issues such as faculty-student relationships, the undervaluation of teaching and the marginalization of ethics in the curriculum).

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realities, notwithstanding the amount of time and effort I spent prior to my visit preparing to teach the class. That said, while the gap was wide, paying attention to and addressing it was relatively easy: exactly because teaching in China was so inherently and obviously “different” I was highly conscious of my expectations, and was looking for differences and gaps between my expectations and classroom realities. I return to the United States appreciating that managing expectations is significantly more difficult to do when one teaches back home, gets used to teaching as a routine and is usually subject to little post-tenure review. Nonetheless, while perhaps not as obvious, forming and managing expectations as a condition of successful teaching is as important back home as it is when one teaches overseas, especially in light of our increasingly diverse student body and the likelihood of increased diversity in the perspectives and expectations within the classroom. I believe I have learned that one looking for “big” differences in the classroom risks missing out on the little ones that make teaching, at home or abroad, so challenging and worthwhile.