LESSONS FROM THE PRESENT: THREE CRISES AND THEIR POTENTIAL IMPACT ON THE LEGAL PROFESSION Raymond H. Brescia* ABSTRACT The United States faces three simultaneous crises: a pandemic, a civil rights reckoning, and a crisis of democracy. The first of these crises has sparked dramatic—though potentially temporary—changes to the practice of law: moving much legal work to remote settings almost overnight, after the profession had largely resisted making such accommodations for decades. The second has sparked an assessment of the extent to which the practice of law and the legal system are both riddled with racism and institutional bias. The third, the crisis of democracy, has lawyers at its center, filing frivolous claims and fomenting an armed insurrection with designs on overturning the results of a free and fair election. If the past is any guide, these crises will provoke a period of introspection within the legal profession and prompt calls for change. What the profession tends to do in the wake of such crises and in response to such calls, however, is tinker around the margins of the rules regarding the operation of the profession, leading to little substantive, long-term, formal change. It is entirely possible, if not likely, that the legal profession could respond to these crises according to this same pattern. It does not have to be that way, however. This Article calls on the profession—even as we are still in the midst of these crises in many ways—to seize the opportunity to advance real, * Hon. Harold R. Tyler Chair in Law & Technology and Professor of Law, Albany Law School. I am grateful for the valuable input I received from my colleagues at Albany Law School, including Ava Ayers, Mary Lynch, Rosemary Queenan, Sarah Rogerson, Christian Sundquist, and Mary Walsh Fitzpatrick. I received excellent research assistance in preparing this work from Albany Law students Claire Burke, Jesse Gleason, Jessica Haller, and Krystal Macharie, as well as the unwavering support of my legal assistant, Sherri Ann Meyer. All errors and omissions are, of course, my own. 607 608 HOFSTRA LAW REVIEW [Vol. 49:607 lasting, and meaningful change and recommit to the central role it must play in the defense of the rule of law and democracy. I. INTRODUCTION Since early 2020, nations and communities across the world have had to confront a deadly pandemic.1 In this same year, and into 2021, the United States has faced a confluence of three simultaneous crises2: the pandemic itself, as well as its economic fallout,3 but also a renewed call for racial justice in the wake of highly publicized incidents of police misconduct (the racial justice crisis),4 and a highly orchestrated and multi-pronged campaign to overturn the results of the 2020 election (the crisis of democracy).5 These events, sandwiched by two presidential impeachments,6 have led to trillions of dollars in economic intervention,7 calls for police reforms and wide-ranging efforts to root out institutional racism and implicit bias,8 and a profound sense that the rule of law is in 1. For a general discussion of the scope and impact of the pandemic, although the world will likely never get a full accounting of its devastation, see FAREED ZAKARIA, TEN LESSONS FOR A POST-PANDEMIC WORLD 1-11 (2020); see also SCOTT GALLOWAY, POST CORONA: FROM CRISIS TO OPPORTUNITY xv-xviii (2020) (providing an analysis of the early economic impacts of the pandemic). 2. On President Biden’s first day in office, The New York Times ran a headline that read: “Biden Inaugurated as the 46th President Amid a Cascade of Crises.” Peter Baker, Biden Inaugurated as the 46th President Amid a Cascade of Crises, N.Y. TIMES (Jan. 26, 2021), https://www.nytimes.com/2021/01/20/us/politics/biden-president.html. 3. See Kim Parker et al., Economic Fallout from COVID-19 Continues to Hit Lower-Income Americans the Hardest, PEW RSCH. CTR. (Sep. 24, 2020), https://www.pewsocialtrends.org/2020/09/24/economic-fallout-from-covid-19-continues-to-hit- lower-income-americans-the-hardest (describing economic impacts of COVID-19). 4. Amy Harmon et al., From Cosmetics to NASCAR, Calls for Racial Justice Are Spreading, N.Y. TIMES (Sept. 14, 2020), https://www.nytimes.com/2020/06/13/us/george-floyd-racism- america.html (describing wide-ranging efforts to address police misconduct in the wake of the Black Lives Matter protests of 2020). This is not to say that this crisis is new, particularly for the BIPOC community. Rather, the highly publicized videos of police killings of Black men and the murder of Breonna Taylor appeared to elevate this crisis in the public consciousness. 5. William Cummings et al., By the Numbers: President Donald Trump’s Failed Efforts to Overturn the Election, USA TODAY: NEWS (Jan. 6, 2021, 10:50 AM), https://www.usatoday.com/in-depth/news/politics/elections/2021/01/06/trumps-failed-efforts- overturn-election-numbers/4130307001 (describing the failure of the legal campaigns to overturn the results of the 2020 presidential election). 6. See Nicholas Fandos, Trump Impeached for Inciting Insurrection, N.Y. TIMES (Feb. 12, 2021), https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html (noting the unprecedented nature of President Trump’s second impeachment). 7. See How Is the Federal Government Funding Relief Efforts for COVID-19?, USASPENDING.GOV, https://datalab.usaspending.gov/federal-covid-funding (last visited Apr. 1, 2021) (noting trillions of dollars in financial relief). 8. See, e.g., Adam Serwer, The New Reconstruction, ATLANTIC, Oct. 2020, https://www.theatlantic.com/magazine/archive/2020/10/the-next-reconstruction/615475 2021] LESSONS FROM THE PRESENT 609 jeopardy in the United States.9 At the center of many of these crises are lawyers: lawyers who have played significant roles in efforts to address these crises, but have also made them worse in many ways.10 These crises, and others like them, have also exposed some of the best and worst qualities of the legal profession. It is in the wake of crises like these that scholars, judges, and leaders of the bar often call for reform of the profession.11 Indeed, events such as the Watergate scandal;12 the Savings & Loan Crisis;13 the impeachment of President Clinton and his subsequent suspension from the practice of law;14 the Enron scandal;15 (highlighting the impact of police violence protests on public discourse and opinion, leading to greater acknowledgment of the need to address racial injustice). 9. See, e.g., Charles Gardner Geyh, In Trump Election Fraud Cases, Federal Judges Upheld the Rule of Law—But That’s Not Enough to Fix US Politics, CONVERSATION (Dec. 18, 2020, 8:55 AM), https://theconversation.com/in-trump-election-fraud-cases-federal-judges-upheld-the-rule-of- law-but-thats-not-enough-to-fix-us-politics-152060 (describing present threats to the rule of law in the United States and measures needed to address them). 10. In a recent publication, the contributors explore the role of lawyers in addressing crisis situations and examine the best practices in such settings. See generally CRISIS LAWYERING: EFFECTIVE LEGAL ADVOCACY IN EMERGENCY SITUATIONS (Ray Brescia & Eric K. Stern eds., 2021). 11. See Raymond H. Brescia, Ethics in Pandemics: The Lawyer for the (Crisis) Situation, 34 GEO. J. LEGAL ETHICS (forthcoming 2021) (manuscript at 19) (discussing the notion that calls for reform in the legal profession often following crises and scandals); see also William H. Simon, Introduction: The Post-Enron Identity Crisis of the Business Lawyer, 74 FORDHAM L. REV. 947, 951-54 (2005) (describing calls for reform in the wake of the Enron scandal); MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 4-14 (1994) (discussing the crisis in the profession as being represented by a widening gap between lawyers and the broader community as to perceptions about the role of law in society). Criticism of the profession is often cast as a crisis for the profession itself. See, e.g., Eli Wald & Russell G. Pearce, Being Good Lawyers: A Relational Approach to Law Practice, 29 GEO. J. LEGAL ETHICS 601, 606-12 (2016) (describing “the crisis of professionalism” in the legal profession). Such criticism is not something that is new in American culture, however. See, e.g., DEBORAH L. RHODE, IN THE INTERESTS OF JUSTICE: REFORMING THE LEGAL PROFESSION 11-13 (2000) (noting dissatisfaction with the profession is practically as old as the profession itself); Geoffrey C. Hazard, Jr., The Future of Legal Ethics, 100 YALE L.J. 1239, 1239-40 (1991) (describing crisis in legal profession and legal ethics as an ever-present “chronic grievance” associated with dissatisfaction with lawyers). 12. See generally JAMES E. MOLITERNO, THE AMERICAN LEGAL PROFESSION IN CRISIS: RESISTANCE AND RESPONSES TO CHANGE 96-107 (2013) (describing the involvement of lawyers in the Watergate scandal and the event’s impact on the profession). 13. See, e.g., William H. Simon, The Kaye Scholer Affair: The Lawyer’s Duty of Candor and the Bar’s Temptations of Evasion and Apology, 23 LAW & SOC. INQUIRY 243, 280-82 (1998) (discussing the changes effected upon the profession due to the Savings & Loan Crisis); Robert G. Day, Administrative Watchdogs or Zealous Advocates? Implications for Legal Ethics in the Face of Expanded Attorney Liability, 45 STAN. L. REV. 645, 649-59 (1993) (describing legal reforms instituted after the Savings & Loan crisis and their potential effects on legal ethics). 14. His punishment included being permanently disbarred from practice before the United States Supreme Court. Duncan Campbell, Lewinsky Scandal Ends as Clinton Is Disbarred, GUARDIAN (Oct.