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Bushwhacking the Ethical High Road: Conflict of Interest in the Practice of Law and Real Life

July 2006

From The Journal of Law & Social Inquiry:

A long-standing scholarly tradition regards professions, in general, and ethics rules, in particular, as “projects” of market control. It is no surprise, critics charge, that in the latest assault on the monopoly of the American legal profession–waged by multidisciplinary professional service firms–lawyers are hiding behind their ethics rules to protect their turf.

In this article, I report on an extensive empirical study of conflict of interest in private legal practice and look comparatively at other fiduciaries, among them, accountants, psychotherapists, physicians, journalists, and academics. I investigate the role of ethics rules that seek to insure fiduciary loyalty in structuring the delivery of services. How does social and institutional change, roiling the fiduciary world, threaten disinterestedness and loyalty and how, if at all, do fiduciaries respond? How is the regulation of conflict of interest accomplished? Where are the conflicts rules most likely to be honored or ignored? What incentive structures encourage compliance? What are the costs and unexpected consequences of compliance? What is foregone? And is it all worth it?

In what might come as a surprise to many, I find that the legal profession takes conflict of interest more seriously than many of the rest of us. As the title implies, legal practitioners largely travel alone, bushwhacking through the underbrush snarling the ethical high road. As critical scholarship predicted, lawyers do enjoy a monopoly at the end of the road. But this monopoly is achieved, not by restraint of trade or some other artifice or stratagem of market control, but by lack of competition. It seems that no one else is trudging alongside the lawyers. Lawyers are not necessarily more ethical than the others; they just behave more ethically–at least with respect to conflict of interest. The question is why. And what difference does it make?