Barbara Glesner Fines

Speculating on the Future of Attorney Responsibility to Nonclients

The trend toward greater liability to ones opponents in litigation is but one example of the overall diffusion of attorney responsibility. This may represent either greater animosity aimed at attorneys or broader liability across the board in society. Other explanations include a diffusion of attorney roles with a corresponding trend toward unifying standards of liability for a broad range of service professionals, as well as a pluralization of the attorney client relationship. Primarily, however, the trend toward greater responsibility to nonclients represents a crumbling of the overriding fidelity to a partisan adversary ethic. To the extent this trend is present in the core of the adversary system its extension to non-litigation fields of practice seems even more likely. Broader liability may be a result of or an incentive for change in legal culture. Even if standards of liability do not encourage attorneys to balance their adversarial zeal on behalf of clients with some concern for fairness toward third parties, the culture of the law may be changing to an extent which will encourage this change. The number of individuals and entities that are opting out of litigation, or who are forced by law to pursue less adversarial methods of dispute resolution, indicate that the overriding ethic of adversarial partisanship is beginning to be balanced with concerns toward more cooperative transactional and dispute resolution methods. The increasing popularity of mediation for a broad range of dispute resolution and the significant debate over the proper role of attorneys in this field is but one indication of this trend.

Teaching Empathy Through Simulation Exercises - A Guide and Sample Problem Set

For over a decade, legal educators (particularly clinical faculty) have argued for the importance of teaching empathy as a critical component of legal education. Both the Carnegie Report and the Best Practices study have emphasized that legal educations instruction in skills - including lawyer-client relationship skills - requires greater attention. While some might argue that empathy is a skill that cannot be taught outside the context of clinical representation of clients, this simulation problem proceeds from the assumption that empathetic understanding of the clients situation is a skill that can be addressed in a variety of settings. Indeed, if empathy is left unaddressed in the classroom, legal education may further the divide of mind and heart and leave students with a message that what they learn in the classroom is an intellectual exercise of little real relevance to what they will do as an attorney. Professional responsibility courses are an especially appropriate classroom in which to address empathetic understanding of the client, as a key component in exploring the attorney-client relationship and the attorneys duty of communication. This role play is designed in the context of a bar admission problem. While the problem can be used to explore the substantive standards for admission to practice or the impact of law regarding disabilities on that process, the primary goal of this exercise is to explore how it feels to be a client. By placing the students in the role of a law student bar applicant - a situation that nearly every law student can imagine - the role play makes it easier for students to internalize the feelings and perspectives of the client. The role play includes instructions for attorney and client, documentary evidence, and a research memorandum on applicable law. Also included is an edited version of the actual case which is a basis for the problem.