July 22, 2014

MEMBER SPOTLIGHT: An Interview with Prof. Geoffrey Hazard

Professor Geoffrey Hazard is a primary figure in legal ethics and civil procedure. His treatise, Civil Procedure Legal Ethics: A Comparative Study (Stanford, 2004) compares ethics in the legal professions of modern industrialized countries. He has taught law school since 1958, beginning at Boalt Hall, then the University of Chicago, Yale University, University of Pennsylvania, and Hastings College of the Law.

He served as Director of the American Law Institute from 1984 to 1999 and previously had been Reporter for the ALI Restatement Second of Judgments. He was also Chief Reporter for the ALI/UNIDROIT Principles of Transnational Civil Procedure. He was Reporter for the ABA Model Rules of Professional Conduct (promulgated in 1983) and draftsman-consultant for the ABA Model Code of Judicial Conduct (promulgated in 1972). Professor Hazard is a graduate of Swarthmore College and Columbia Law School and has received numerous honorary degrees and awards.

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Welcome, Professor Hazard. You have taught law school for over 56 years. What are the differences in the law school students today versus when you first started teaching?

Today the students are much more cosmopolitan in their viewpoint. When I first started teaching, and when I went to law school, the students thought that the far reaches of the west were New Jersey. When I taught at Berkeley, most of the students were oriented to California. There was a somewhat similar outlook at the University of Chicago. Today, most students have a much wider perspective on the world, partly driven, I think, by the difficulties of getting jobs. They have to be much more open-minded.

How have law schools changed over that time period? Are they servicing this new population well?

We're undergoing a big change right now, but that responds to an earlier change the 1960s. Law schools came to think that having people with Ph.D.’s was necessary to establish their intellectual stature. A point was reached when just about half, and maybe even a larger percentage of younger appointees to faculties had Ph.D.’s Some of them had practice experience, but that was generally regarded as incidental to their qualifications. I think that was overdone.

Some Ph.D.’s are certainly worth having in such subjects as history and economics, psychology, perhaps, but it led to an emphasis on academic-type scholarship as the preferred expression of student activity. The trouble with that is that it doesn’t have much to do with the practice of law, and most graduates are going to be engaged in law practice. So we’re now reverting to much more clinical work, apprenticeships and so on, so there is much more of a practice orientation. One might say a happy medium would be a good dose of serious academic scholarship epitomized by the Ph.D., and a lot more practical teaching, such as teaching of practical skills. 

How has your teaching style changed over the years?

It’s hard for me to guess. I do think as I’ve gotten older I’ve become more forgiving of student blunders and I hope a little more supportive. I’ve always been pretty good, I think, at working with students one-on-one, but my model for a big classroom has always been the kind of teaching that I got at Columbia, which involved a pretty tough Socratic method.

What do you enjoy most about teaching?

Seeing a student move beyond a verbal formula in a case or beyond the limited statement of fact. Once a student can do that, he or she can think creatively, imaginatively.

I saw that at the University at Pennsylvania Law School you taught a course called "Western Moral Concepts." Do you have a favorite class to teach?

I’ve always been interested in the normative setting of law. That is, law consists of formal rules and formal procedures, but that’s not by a long shot what it is that influences how people behave. So I’ve always thought that attention to the ambient situation in which legal problems arise is very important, and that ambient situation is importantly determined by what the prevailing moral sentiment is. As Holmes said, “The felt necessities of the time.” I can bring that focus in civil procedure. I can do it even more in teaching professional responsibility, so I’d guess I’d say that professional responsibility is my favorite class.

That’s a nice segue to the next question. You are a primary figure in legal ethics today. What initially drew you to this subject of legal ethics?

It was sort of accidental. In 1964, I went from Berkeley to Chicago concurrently, joining the faculty at the University of Chicago and becoming executive director of the American Bar Foundation. That plunged me immediately into the complexity of the American Bar Association, which was undertaking to draft the code of professional responsibility. I was involved sort of on the side but very much interested in that project, so that’s what got me into it. Then I did some work on the Code of Judicial Ethics just at the point when I left the American Bar Foundation.

You have published the Fifth Edition of The Law and Ethics of Lawyering. This area of law continues to hold your interest. Why?

We're talking about how people should behave in conditions of uncertainty and stress, and lawyers have to function under those conditions. It means it requires a very realistic attitude toward what’s happening, but also it requires imagination to figure out what are the possibilities for what’s going to happen next. So trying to help young law students and, indeed, counseling experienced lawyers in those terms is a very interesting and continually revitalized subject.

You are often a consultant or expert witness in professional ethics cases, including legal malpractice. What are the most pressing ethical issues for lawyers today?

The one that’s statistically most common is the problem of conflict of interest, because a higher percentage of lawyers work in law firms than, say, a century ago. That means Lawyer A has got to be worried about what Lawyer B in the same firm is doing. Another tough problem is being able to say no to a client, to say that a particular course of action is either ill-advised or is, indeed, illegal. Clients often face situations where it would be quicker and cheaper to do something on the other side of the boundary of law, and lawyers may have to inform them of that and also indicate that the lawyer can’t help them conduct themselves that way.

You said in an interview that when a person becomes a lawyer, that person is different from what he or she had been before. How, in your opinion, does a person change?

You realize, first of all, you are now helping others. You have important duties of confidentiality and loyalty that are much more rigorous than applied to people in other vocations. When you are licensed to practice law, it gives you two very important powers. One is to listen to people under the protection of the attorney-client privilege, which means they can tell you things that ordinarily wouldn’t be conveyed to you. And the other is you have the power to invoke the force of the government. A lawsuit is a coercive activity. Defense of a lawsuit is resisting coercion, and we are licensed to do that. That requires a kind of outlook on life that’s not radically different, say, from becoming a professional soldier.

I’m going to switch topics here. You are also an eminent figure in civil procedure. What drew you to this subject area?

An urgent scheduling problem at Boalt Hall in 1958. I was scheduled to teach torts, but then they had a problem with staffing. They needed a civil procedure teacher, so I was assigned, and that’s where I’ve been ever since. It was a lucky break for me.

Your Hastings colleague Richard Marcus said, “Hazard’s thinking is often decades ahead of the law.” How do you think about civil procedure that allows you to see where it should be versus where it is now?

Civil procedure fundamentally involves two questions: How do you establish what the facts are, including conformity of the rules of the evidence, and how is it specified what shall be the law that governs the case? Both of those issues are complex. To see where it should be, you have to think about the different ways of establishing those two things. The French system of law, for instance, has a very different view of how to establish the facts compared to the common law systems.

Are there pressing civil procedure problems today that you see?

The biggest problem is that what used to be trials are now pretrial discovery plus summary judgment. That’s what lawsuits are about, for the most part, unless you’ve got a case in which the whole aim is to get it to the appellate courts to get a ruling on governing law. With the explosion of electronic information, you have huge amounts of information that have to be processed. The courts have not been as adventuresome or as imaginative in figuring out how to deal with that massive information. The extraordinary amount of information that can be brought to bear on a case creates very serious problems of management.

What were the highlights of serving as director of the American Law Institute from 1984 to 1999?

It was a continuous delight, because the ALI work involved advisory committees composed of lawyers, judges, and academics. As I said to myself often, the academics bring a theoretical approach, the judges bring a sense of responsibility, and the lawyers will tell you what’s going on. It was like a continuous seminar to listen to and interact with these advisory committees.

You are the author of 16 books. Is there one book that you are most proud of? And if so, what?

I would say there are two. One is our casebook, Civil Procedure, that I participated in writing and first publishing in 1962 with David Louisell. Now I'm the first-name participant and Judge William Fletcher is the second. That book was framed very differently from any of the books at the time, and it still is, as it covers everything from thinking about the case beforehand – that is before filing – to appellate review.

The other book I’m most proud of is Legal Ethics: A Comparative Study, which I wrote with Angelo Dondi, who is an Italian scholar and friend of mine. It allowed us to think about what lawyering is in continental Europe compared to what it is in the United States and other common-law countries.

You co-wrote with your son, Doug Pinto, a Biblical scholar, The Moral Foundations of American Law. How was it to write a book with your son?

It was very agreeable. Doug is very knowledgeable about the Bible and about the humanities generally. What we’d do is we would talk about it, then I would write something, and then we would talk it over.

But if you’ll notice in my list of writings, most of the stuff I’ve done has been in collaboration with others. I think that’s very good, because you have to talk about your ideas with your colleague. Typically that results in seeing things that you wouldn’t have seen if you didn’t have the conversation.

Among your better-known students is U.S. Supreme Court Justice Samuel Alito, who also worked as your research assistant when you taught at Yale. How did he stand out?

Alito as a student was much as he is a grown man. He was very quiet and didn’t volunteer a lot, but if you asked him something or invited him to make a presentation, he would be very sharp. He’s much more conservative about a lot of things, I think, than I am, but he fully understands what the issues are. When he was sitting in one of the big classes, you could almost hear the whole room quiet down when he was called on or had occasion to speak. He’s always been respected as very, very smart and perceptive.

You’ve been the recipient of many, many awards. Is there one or two that you’re most proud of or that they are most meaningful?

The honorary degree from Swarthmore College stands out in my mind and also the honorary degree I got from the Italian universities. Swarthmore remains, in my opinion, one of the best schools, particularly at the undergraduate level, that there is, and I was a great beneficiary of their excellence. The honorary degree from Italy was very welcome as signifying my extensive comparative law work with several Italian colleagues.

What is in the value of participating in the ABA’s Business Law Section?

The ABA Business Law Section is an elite group of corporate lawyers. It’s much like the pleasure I had in being director of the ALI. I get to interact with a group of very smart, concerned, and professionally dedicated lawyers.

Why would you encourage others, particularly younger lawyers, to get involved in this Section?

These lawyers are people whose outlooks, whose expressions, whose attitudes are exemplary or certainly illustrative of the people in practice at a high level of quality. If you listen to them and see how they approach things and what they think about, you’re going to learn a lot. That leads back to a thing that I’ve always thought is most important in being lawyer, which is how to listen. We’re in the business of talking and writing, but before you talk and before you write, you ought to listen to what’s being said around you.

What has been valuable to you about you role as Business Law Section Advisor and Continuing Advisor?

Interacting with people and seeing how they understand the problems that they’re confronting. I have my idea of how they should be handling certain problems, but it’s very important to understand how they understand it, because most of the problems I will deal with as a consultant or expert will be filtered through the minds and words of lawyers. So I have to maintain an expertise in what we might call "law speak."

And what are you working on now?

I’ve just finished an article that I hope to get published called “The Morality of Law Practice.” It's not as short as you might think. I think it’s an important and complicated subject. I feel very good about the article, and I hope it gets published soon.

Is there anything we haven’t address that you’d like to add?

I’ve had the benefit of having an excellent wife who has been very indulgent of my idiosyncrasies. To maintain a steady course in life and be able to make the most of your opportunities, it is helpful, if not essential, to have a helpmate of the competence and concern that I’ve had the benefit of in my wife, Elizabeth.

Thank you for your time.